Citation Nr: 1335194 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-24 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a neurological disability secondary to osteoarthritis of the lumbar spine with recurrent back pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 20 percent for a low back disability. This matter was last before the Board in March 2013, when the claim for an increased rating was denied and the issue of service connection for a neurological disorder secondary to the service connected low back disability was remanded for development. FINDING OF FACT Objective evidence of a neurological disability is not demonstrated by the evidence of record. CONCLUSION OF LAW The criteria for service connection for a neurological disability are not met. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A September 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was informed that service connection for neurological symptoms associated his lumbar spine disorder could be evaluated separately in the March 2013 Board remand. The claim was subsequently readjudicated, most recently in a May 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in November 2002. VA examinations were obtained in September 2006, and January 2011 and April 2013; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This matter was before the Board in March 2013, when the case was remanded to the RO via the Appeals Management Center (AMC), in Washington, D.C. The purpose of this remand was to provide a VA examination regarding neurological manifestations potentially associated with the service connected low back disability. This was completed as directed, and the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Subsequently, a supplemental statement of the case (SSOC) was issued in May 2013 which continued the previous denial. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Service Connection The Veteran claims that he has radiculopathy which is associated with his service-connected lumbar spine disability. Under 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012), any associated objective neurologic abnormalities are to be separately evaluated under an appropriate diagnostic code. Service connection may be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection under these circumstances requires credible and competent evidence showing: (1) the existence of a current 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A disability at the time of filing of a claim or at any time during the pendency of an appeal warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also 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). Analysis A November 2000 VA examination of the spine noted that there were clinical findings suggestive of peripheral neuropathy apparently secondary to alcohol. The examiner further noted that the Veteran had depression, frustration and a sleep disorder which increased the perception of pain in the Veteran. In an October 2001 VA medical report made in conjunction with the Veteran's release from treatment, it was noted that the Veteran reported substance abuse since prior to military service. He stated that he did not know how many times he had been in detox but it was at least two hundred and fifty times. In a December 2002 report associated with the Veteran's disability claim for Social Security benefits, the reporting physician stated that when he had been asked about the severity of his pain the Veteran almost always reported a 10 out of 10 when examination generally showed very little. There was no radiculopathy but there was some suggestion in the records of neuropathy, felt perhaps to be secondary to alcoholism. Evaluating pain in the Veteran was difficult and there was some disconnect between the complaint of pain and findings on examination. A September 2006 VA examination demonstrated a normal nerve conduction study of the lower extremities. It was noted, however, that it was possible that the Veteran had lower extremity symptoms but that it was too early to detect by electrodiagnostic study. A private treatment note dated in December 2009 noted positive straight leg testing bilaterally and light touch sensation reduced in the right lower extremity. Lumbosacral neuritis was diagnosed. The Veteran reported that he had had chemical dependency in the past but had never undergone substance abuse treatment. In January 2010 lumbosacral neuritis was diagnosed, with the Veteran reporting progressive neurological deficit of the legs. Physical examination did not appear to include neurological testing. Private treatment records dated between May and August 2010 demonstrated normal neurological findings; however, in July 2010 lumbosacral neuritis was diagnosed. A December 2010 private treatment note likewise included a diagnosis of lumbosacral neuritis; however, neurological testing did not appear to have been conducted. The Veteran was afforded a VA examination in January 2011. The VA claim file was reviewed. The Veteran reported pain in the low back with radiation to the groin and numbness in both feet with tingling. The Veteran described a history of mild fecal incontinence, erectile dysfunction, numbness, parethesias, leg or foot weakness, falls, and unsteadiness. Following physical examination, the examiner diagnosed degenerative disc disease of the spine with subjective bilateral radiculopathy, noting that electrodiagnostic testing was negative. In February 2011 and April 2011 private treatment records, lumbosacral neuritis was diagnosed; there was no evidence that neurological testing was performed. In a May 2011 private treatment note, the Veteran admitted to light alcohol use; denied use of recreational drugs; and denied having been chemically dependent in the past. He stated that he had never undergone substance abuse treatment. An August 2011 private treatment note reported that light touch testing was reduced. As directed by the Board's remand, the Veteran was afforded a VA examination in April 2013. During his examination, the Veteran reported that he had low back pain to the lateral side of the right upper leg then down to his knee. He did not report numbness, tingling, motor weakness or poor dexterity. Following review of the Veteran's claim file and physical examination, the examiner concluded that a neurological disorder was less likely than not proximately due to or the result of the Veteran's service connected condition. The examiner explained that this was because objective electromyogram testing and extensive nerve testing were both negative. The examiner further explained that the Veteran's subjective complaints were inconsistent with any specific nerve root and the findings were not consistent with a diagnosis of a neurological disability. Although lay persons are competent to provide nexus statements on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), diagnosing a neurological disability and determining the etiology of such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's lay testimony regarding his neurological symptoms is simply not credible. It is significantly impaired by the fact that he is not an accurate historian. The claim file clearly demonstrates that the Veteran's reported symptoms are not supported by objective examination and testing, and that they may well be related to his psychological disorders as opposed to any medical source. Moreover, while the Veteran's claim file clearly demonstrates a prolonged and extensive history of substance abuse, he has, on multiple occasions, denied substance abuse and treatment for substance abuse to his private physicians. The Board recognizes the diagnoses of a neurological disorder by the Veteran's private physicians. However, these findings are not supported by the overwhelming majority of the objective medical evidence. Many of the private diagnoses of a neurological disorder were provided following appointments which did not include any neurological testing. Moreover, even the limited neurological testing that was conducted (such as straight leg raising and light touch test) largely relied upon the Veteran's own reports of pain and sensation. These findings are afforded far less weight than the objective neurological testing of the VA examiners as discussed above. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the competent evidence weighs heavily against a finding that a neurological disability exists. The preponderance of the evidence is against the claim of service connection for a neurological disability; there is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for a neurological disability secondary to osteoarthritis of the lumbar spine with recurrent back pain is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs