Citation Nr: 1333407	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  07-03 705	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for a disability of the bilateral lower extremities, to include as secondary to degenerative disc disease and degenerative joint disease of the lumbosacral spine. 


REPRESENTATION

Appellant represented by:	John Berry, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran served on active duty from March to May 1971.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  The Veteran testified before the undersigned during a Board hearing held in May 2010.  A copy of the hearing transcript has been associated with the record.  

The issue on appeal was remanded by the Board for further development in August 2010 and October 2012.  

In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence.  


FINDING OF FACT

Peripheral neuropathy of the bilateral lower extremities is proximately due to the service-connected degenerative disc disease and degenerative joint disease of the lumbosacral spine.    


CONCLUSION OF LAW

The criteria for service connection for peripheral neuropathy of the bilateral lower extremities are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013).  



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). 

This decision constitutes a full grant of the benefits sought on appeal on the issue of service connection and no further discussion regarding VCAA notice or assistance duties is required with regard to this issue.  The Board also finds that, because this decision constitutes a full grant of the benefits sought on appeal, any discussion regarding Bryant v. Shinseki, 23 Vet. App. 488 (2010) is not required with regard to this issue.

Service Connection Laws and Regulations

Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131; 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).  Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).   

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006.  The new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability.  71 Fed. Reg. 52744-47 (Sept. 7, 2006).  Although the stated intent of the change was merely to implement the requirements of Allen, supra, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995.  Consequently, as the Veteran's claim was filed before October 2006, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the Veteran because it does not require the establishment of a baseline before an award of service connection may be made.

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In addressing lay evidence and determining its probative value, if any, attention is directed to both 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").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).

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 claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Analysis

The Board finds that the evidence of record establishes that the peripheral neuropathy of the bilateral lower extremities is proximately due to and the result of the service-connected degenerative disc disease and degenerative joint disease of the lumbosacral spine.  

Service connection is in effect for degenerative disc disease and degenerative joint disease of the lumbosacral spine and a 60 percent rating has been assigned from April 1, 1996.  There is competent and credible evidence which establishes that the Veteran currently has peripheral neuropathy of the bilateral lower extremities secondary to the lumbar spondylosis.  The January 2013 VA examination report indicates that the VA examiner reviewed the claims file and examined the Veteran.  The VA examiner indicated that the Veteran had longstanding low back pain associated with lumbosacral spondylosis status post L5-S1 bilateral laminectomy and lumbar fusion due to an injury in the military in 1971.  The examiner noted that starting in the 1990's, the Veteran began having tingling, numbness, and pain in both lower extremities, left worse than right.  The examiner noted that this is well documented in the claims file.  After physical examination, the examiner indicated that the Veteran had incomplete paralysis of the sciatic nerve.  The impairment on the right was moderate and the impairment on the left was moderately-severe.  

The examiner opined that the peripheral neuropathy of the bilateral lower extremities was at least as likely as not related to the Veteran's service-connected degenerative joint disease and degenerative disc disease of the lumbosacral spine.  The examiner noted that this was documented in numerous clinical records in the claims file where the treating physicians referred to lumbosacral radiculopathy and sciatica.  The VA examiner cited to the specific evidence of record which supported this medical conclusion.   

The Board finds the January 2013 VA examination report to have high probative value.  The opinion is well-reasoned, supported by a rationale, and is consistent with other evidence of record, to include a review of service treatment reports, private medical records, and VA outpatient treatment.  The January 2013 VA medical opinion is based on sufficient facts and data and the reasoning for the conclusion is factually accurate, fully articulated, and sound.  See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). 

The Board finds that the January 2013 VA medical opinion is competent and credible evidence that the peripheral neuropathy of the bilateral lower extremities is caused by the service-connected degenerative disc disease and degenerative joint disease of the lumbosacral spine.  Thus, the Board finds that service connection for peripheral neuropathy of the bilateral lower extremities as secondary to the service-connected degenerative disc disease and degenerative joint disease of the lumbosacral spine is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The appeal is granted. 


ORDER

Service connection for peripheral neuropathy of the bilateral lower extremities as secondary to the service-connected degenerative disc disease and degenerative joint disease of the lumbosacral spine is granted. 




____________________________________________
M. TENNER
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs