Citation Nr: 1330401	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  10-12 329	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for sciatica, right lower extremity (claimed as pain, tingling, and numbness in the legs and feet).

2.  Entitlement to service connection for sciatica, left lower extremity (claimed as pain, tingling, and numbness in the legs and feet).

3.  Entitlement to an initial disability rating higher than 10 percent prior to May 18, 2009, and higher than 20 percent beginning May 18, 2009, for degenerative disc disease with mild to moderate neuroforaminal stenosis at L4-5 and L5-S1.


REPRESENTATION

Veteran represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

The Veteran had active military service from April 1983 to July 1989.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In a rating decision in March 2010, the RO increased the rating for the Veteran's service-connected lumbar spine disability from 10 percent to 20 percent effective May 18, 2009.  But see AB v. Brown, 6 Vet. App. 35, 39 (1993) (even if a rating is increased during the pendency of an appeal, a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise).  

The issue of an initial disability rating higher than 10 percent prior to May 18, 2009, and higher than 20 percent beginning May 18, 2009, for degenerative disc disease with mild to moderate neuroforaminal stenosis at L4-5 and L5-S1 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  Service connection is in effect for degenerative disc disease of the lumbar spine with mild to moderate neuroforaminal stenosis at L4-5 and L5-S1.

2.  Resolving all reasonable doubt in the Veteran's favor, the Veteran's bilateral sciatica (claimed as pain, tingling, and numbness in the bilateral legs and feet) is secondary to his service-connected lumbar spine disability.

CONCLUSIONS OF LAW

1.  The Veteran's right lower extremity sciatica (claimed as pain, tingling, and numbness) is proximately caused by his service-connected degenerative disc disease of the lumbar spine at L4-5 and L5-S1 disability.  38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).

2.  The Veteran's left lower extremity sciatica (claimed as pain, tingling, and numbness) is proximately caused by his service-connected degenerative disc disease of the lumbar spine at L4-5 and L5-S1 disability.  38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board is granting both claims for service connection, representing a complete grant of the benefits sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

The Veteran seeks service connection for bilateral lower extremity pain, tingling, and numbness (adjudicated as sciatica), which he asserts may be related to his low back disorder.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  Service connection may also be granted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), as well as for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

Additionally, service connection may be granted for a disability that is proximately due to or the result of a service-connected disability, which includes the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995).  To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516- 17 (1995).

In making all determinations, the Board must consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

The service treatment records are negative for right or left lower extremity symptoms and the Veteran does not contend otherwise.  As such, the preponderance of the evidence is against the direct onset of the condition while on active duty.  Service connection, however, is in effect for low back degenerative disc disease with mild to moderate neuroforaminal stenosis at L4-5 and L5-S1.  See, e.g., May 2009 VA treatment record (noting complaints of low back pain and radiating pain down the left and right leg, and of numbness and tingling in both feet up to the posterior ankles for the past 16 years).  Indeed, on VA examination in August 2008 the physician noted the Veteran's complaints of pain radiating down both legs and associated numbness, tingling, and weakness in his legs and stated that the Veteran's complaints were suggestive of radiculopathy.  VA treatment records dated in 2010 also ascribe the Veteran's radicular symptoms/lower extremity parathesias to his low back pain disability.  See, e.g., February 2010 VA treatment record ("degenerative disc disease and L5 radiculopathy . . . intermittent radiation posteriorly down the leg to the bottom of the boot, [bilaterally, right greater than left]").  Based on the medical evidence, and affording the benefit of the doubt to the Veteran, service connection for right and left lower extremity sciatica is warranted.  


ORDER

Service connection for sciatica, right lower extremity (claimed as pain, tingling, and numbness in the legs and feet) is granted.  

Service connection for sciatica, left lower extremity (claimed as pain, tingling, and numbness in the legs and feet) is granted.  

REMAND

In August 2008 the Veteran was accorded a VA examination of the lumbar spine.  Since that time he has complained of increased symptoms, including increased pain, immobility, bladder incontinence, and interference with his employment.  As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected lumbar spine disability.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).  Thus, the Board has no discretion and must remand this claim for a new examination.  See 38 C.F.R. § 3.327.  On remand all of the Veteran's outstanding VA treatment records dating from January 2012 should be associated with the claims file.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Associate, with the claims file, all of the Veteran's VA medical records dating from January 2012 to the present.  Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran.  

2.  Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge about the nature and severity of his low back disability, to include the impact of the condition on his ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 


3.  Arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to the Veteran's low back disability.  

After reviewing the claims file and relevant electronic treatment records and examining the Veteran, the examiner should identify all spine pathology found to be present.  The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees, and should describe any pain, weakened movement, excess fatigability, and incoordination present.  The examiner should express any functional loss from weakened movement, excess fatigability and incoordination in terms of additional degrees of limited motion of the Veteran's spine.  

In addition, the examiner should state whether the low back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes.  

Further, the examiner should also discuss the nature and severity of the Veteran's right and left-sided radiculopathy or neuropathy/sciatica.  

The examiner must also state whether the Veteran has bowel or bladder problems or any other neurological manifestations related to his low back disability.

The examiner must also comment on the impact of the Veteran's back disability, to include any neurological manifestations, e.g., his right and left lower extremity impairment, on his ability to secure or follow a substantially gainful occupation given his education, training and work history.

All findings and conclusions, accompanied by a rationale, should be set forth in a legible report.

4.  After completion of all of the above and any other development deemed necessary, re-adjudicate the claim.  If the benefit sought remains denied, provide the Veteran a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
 
This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs