Citation Nr: 1331908 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-43 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral glaucoma. 2. Entitlement to service connection for right lower extremity radiculopathy (claimed as leg numbness), to include as secondary to a service connected lumbar spine disability. 3. Entitlement to service connection for left lower extremity radiculopathy (claimed as leg numbness), to include as secondary to a service connected lumbar spine disability. 4. Entitlement to service connection for a bilateral pelvic and leg disability, to include as secondary to a service connected lumbar spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active duty service from January 1983 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Atlanta, Georgia that denied service connection for the issues currently on appeal. The Veteran requested a hearing on his appeal, but the requested hearing was not scheduled before the case came to the Board. In March 2011, the Board remanded the appeal to give the Veteran an opportunity for a hearing. The RO scheduled a May 2011 hearing, but the Veteran failed to appear without good cause. The hearing request is considered withdrawn. 38 C.F.R. § 20.702(d). A review of the Virtual VA paperless claims processing system does not show any pertinent records that are not already associated with the claims folder. FINDINGS OF FACT 1. The Veteran was suspected to have glaucoma in service and was formally diagnosed with it approximately eighteen months following separation. 2. The Veteran is service connected for a lumbar spine disability; post service treatment records demonstrate radiculopathy for the right lower extremity only. 3. The Veteran is service connected for degenerative arthritis in both knees and hips and the lumbar spine; the competent evidence does not show any separate additional disability for his pelvis or either lower extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for glaucoma are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.303(d) (2013). 2. The criteria for service connection for radiculopathy of the right lower extremity are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.71a, Diagnostic Code 5237 Note 1 (2013). 3. The criteria for service connection for radiculopathy of the left lower extremity are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.71a, Diagnostic Code 5237 Note 1 (2013). 4. The criteria for service connection for a bilateral pelvic and leg disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.14 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), has been in effect since November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). For the issues of service connection for glaucoma and lower right extremity radiculopathy (claimed as numbness of the lower extremities), these claims are granted in full. Further discussion of VA's duty to notify and assist for these issues is not necessary. 38 C.F.R. § 3.159(d). The Board finds that all notification action needed to make a decision has been accomplished. Through an April 2007 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claims, including assignment of disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the April 2007 notice letter satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). It notified the Veteran that VA was responsible for obtaining records from any Federal agency and would make reasonable efforts to obtain evidence from non-Federal custodians. He was invited to submit any evidence in his possession. A remand for further notification of how to substantiate the claims is not necessary. There is no indication that any additional action is needed to comply with the duty to assist. Service treatment records and VA treatment records from both the VA Medical Center in Atlanta and East Point outpatient clinic have been obtained. The Veteran was afforded VA/QTC examinations in June 2007 and January 2010. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The record reflects compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The AOJ scheduled the Veteran for a hearing in May 2011 with appropriate notification. He failed to appear and has not asserted good cause for his absence. 38 C.F.R. § 20.702(d). Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. The appeal is ready for review on the merits. Service connection laws and regulations Service connection may be established for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In general, service connection requires: medical evidence of a current disability; medical or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although the Veteran is competent in certain situations to identify a simple condition, he is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). (i) Glaucoma Service treatment records (STRs) from December 2002 show that after a clinical vision examination the examiner suspected glaucoma. A March 2006 STR reflects that the Veteran had mildly elevated intraocular pressure; however, the clinician commented that a diagnosis of glaucoma had not been confirmed. In May 2007, the Veteran had a VA/QTC vision examination. Following clinical examination, the examiner concluded that the Veteran had slightly elevated intraocular pressure in each eye with otherwise normal findings. He listed a final diagnosis of "[g]laucoma suspect." VA treatment records from December 2007 reflect a glaucoma diagnosis after clinical examination. Subsequent VA treatment records reference a glaucoma diagnosis for both eyes and medication for treatment. (April, August, and December 2009; June 2010 VA treatment records). In summary, the evidence shows that the Veteran was suspected to have glaucoma in service and it was formally diagnosed approximately eighteen months after separation. The evidence does not include a nexus opinion. However, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence shows that the post service diagnosis of glaucoma was incurred in service. 38 C.F.R. §§ 3.102, 3.303(d). Service connection for glaucoma in both eyes is granted. Id. (ii) Bilateral lower extremity radiculopathy (claimed as numbness), to include as secondary to service connected lumbar spine disability During service, the Veteran injured his back in approximately 2000. He underwent back surgery in July 2004 and sought medical attention on numerous occasions for low back pain, including operative treatment. He is service connected for a lumbar spine disability. Under the applicable lumbar spine rating criteria, VA is obliged to separately rate any associated objective neurologic abnormalities. 38 C.F.R. § 4.71a, DC 5235, Note 1. Service connection may also be established for a disability caused by or aggravated by a service connected disability. 38 C.F.R. § 3.310. STRs from 2000 through 2006 reflect that the Veteran had lumbar radiculopathy affecting both lower extremities. Notably, two physicians authored May 2004 and March 2006 letters attesting that the Veteran had sciatica associated with low back pain. Numerous other STRs refer to sciatica or radiculopathy. The Veteran had a VA/QTC examination in June 2007. He recalled that he began experiencing numbness in both legs around 2000. He also had numbness and tingling. The symptoms were now constant. However, he failed to exhibit any neurological symptoms during clinical examination, and the examiner declined to provide a diagnosis. VA treatment records from November 2007 reflect that the Veteran had a positive right straight leg raise test for his right leg. He also exhibited mild weakness (4+/5). In July 2008, VA clinical examination showed decreased sensation to pinprick and diminished reflexes for the right leg. Meanwhile, December 2009 VA clinical examination showed decreased sensation for right leg with otherwise normal bilateral lower extremity findings and June 2010 VA treatment records reflect treatment for right sided radiculopathy. In January 2010, the Veteran had another VA/QTC examination. After absent findings upon neurological examination, the examiner again declined to provide a diagnosis. The U.S. Court of Appeals for Veterans' Claims (Court) has held that the current disability in a service connection claim is satisfied by evidence showing that the Veteran had such a disability at the time he filed claim for compensation, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, symptoms alone, such as pain, are not sufficient to show a current disability without a diagnosed or identifiable underlying malady or condition. See also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001). Despite the negative determinations from the June 2007 and January 2010 VA/QTC examination reports, VA treatment records demonstrate that the Veteran currently has right lower extremity radiculopathy within the meaning of McClain, 21 Vet. App. at 321 to meet the current disability criteria. As the Veteran is service connected for a lumbar spine disability, service connection for right lower extremity radiculopathy is granted. 38 C.F.R. §§ 3.310, 4.71a, DC 5235, Note 1. The evidence does not show that the Veteran has current left extremity radiculopathy at anytime during the claims period. Sanchez-Benitez, 13 Vet. App. at 285; McClain, 21 Vet. App. at 321. Although STRs indicate the Veteran had left lower extremity radiculopathy, post service treatment records do not show any neurological disorder in the left leg. Even in his March 2008 notice of disagreement, the Veteran referred to right sided radiculopathy. Rather, VA treatment records reflect his post service complaints pertain to his right leg. Without clinical evidence showing current left leg radiculopathy, service connection for left lower extremity radiculopathy is denied. See id.; 38 C.F.R. § 3.303. (iii) Bilateral pelvic and leg disability, to include as secondary to a service connected lumbar spine disability As noted above, STRs show that the Veteran sustained a back injury in service and complained about associated sciatic symptoms radiating to his left leg. The Veteran was not treated for any specific pelvic or leg disorder beyond sciatica during service. On the June 2007 VA/QTC examination, the Veteran was found to have degenerative arthritis in his bilateral hips and knees. As he had painful motion due to arthritis in these joints within a year of service, he was service connected for these disabilities. (See September 2007 RO decision). Consequently, the currently claimed disability must demonstrate separate symptoms apart from the currently service connected arthritis symptoms to avoid symptom duplication. See 38 C.F.R. § 4.14 (pyramiding is rating the same manifestation, pain, of a disability, under different Diagnostic Codes, which is to be avoided). The Veteran describes his claimed bilateral pelvic and leg disability as a result of weight bearing imbalance. (March 2008 Notice of Disagreement). He contends that he has additional disability in the affected areas beyond degenerative arthritis. Here, his generalized complaints of pelvic area pain overlap with the currently service connected degenerative arthritis symptoms. The issue of whether he has a separate disability, apart from service connected degenerative arthritis and radiculopathy, is a complex medical question. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. He is not shown to be a medical professional and is not competent to report on the complex medical question of a separate disability. His assertions of a separate disability have no probative value. Id. In this case, competent medical evidence is required to establish the claimed disability. Id.; Woehlaert, 21 Vet. App. 456. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions and includes VA treatment records and examination reports. 38 C.F.R. § 3.159(a). VA treatment records reflect a "problem list" inclusive of lumbar radiculopathy, low back pain, and chronic pain. They do not indicate a separate disability pertaining to the pelvis or lower extremities beyond the currently service connected degenerative arthritis affecting both knees and hips, low back, and the newly recognized radiculopathy of the right lower extremity. Both VA/QTC examinations likewise do not show such claimed disability. In sum, the competent evidence weighs against finding a separate additional disability relating to the pelvis or lower extremities beyond the currently service connected disabilities. Id. The benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for glaucoma in both eyes is granted. Service connection for right lower extremity radiculopathy is granted. Service connection for left lower extremity radiculopathy is denied. Service connection for a bilateral pelvic and leg disability is denied. ______________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs