Citation Nr: 1337135 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 07-35 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for claimed neurological manifestations of a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from December 1981 to December 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO). This issue was remanded for further development in June 2011 and May 2013 Board decisions, and now returns again before the Board. FINDINGS OF FACT The preponderance of the evidence is against a finding that the Veteran currently has any neurological manifestations of his lumbar spine disability, or any other neurological disorder in the lower extremities etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Neurological manifestations of a lumbar spine disability were not incurred in or aggravated by service or a service connected disability, nor may they be presumed to be so incurred. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations As noted above, the Board previously remanded this claim in June 2011 and May 2013 for VA records, specifically for VA records and an examination with opinion to adequately address the etiology of this disability. All requested records were associated with the Veteran's physical and virtual claims file, the Veteran was provided with a VA examination, and his claim was readjudicated in a July 2013 SSOC. Thus, there is compliance with the Board's remand instructions, as to those issues being finally adjudicated in this decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in October 2006, June 2011, and May 2013, as well as Board remands dated June 2011 and May 2013, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These documents informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order to ensure that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). In this case, the Board notes that the Veteran was provided with a VA examination most recently in July 2011. The examination was thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims discussed herein. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Applicable Law and Regulations The Veteran claims that he has a neurological deficit in the form of radiculopathy secondary to his service connected back disability, specifically, degenerative arthritis of the lumbosacral spine. For the below reasons, service connection is denied this claim. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as certain diseases of the central nervous system, become manifest to a degree of 10 percent within one year of separation from active service, then they would be presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board notes that there is no evidence of record showing neurological manifestations of a lumbar spine disability to such a degree with one year of service, therefore, service connection on a presumptive basis is not warranted. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). 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 may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Lumbar spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a (2013). Note (1) of that criteria provides that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, 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 Jandreau v. Nicholson, supra (concerning a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis Considering all evidence of record, the Board finds that service connection is not warranted for the neurological manifestations of a lumbar spine disability. In this regard, the Board finds that the preponderance of the evidence of record indicates that the Veteran does not currently have any neurological manifestations of a low back disability. The Board acknowledges that there is some evidence in the record of radiating pain in the lower extremities. Specifically, there is a February 1992 private treatment record which notes pain radiating down his right leg. However, a straight leg raising test from that same month is negative. The findings from a November 2006 VA medical examination reflected the existence of sensory deficits in the left lower extremity. A December 2007 VA examiner stated that there were deficits in sensory testing of both lower extremities. In addition, testing of the appellant's deep tendon reflexes revealed only a 0-1+ response for ankle jerk. However, the examiner did not identify which nerve or nerves were implicated on either occasion. A December 2008 private treatment record also noted a straight leg raising test was positive, and there was a report of radiating pain. Although the Board has considered these clinical findings, and the Veteran's own reports of pain and other symptoms in his lower extremities, the Board finds the most probative evidence of record to be the report of a VA neurological examination in July 2011. The examiner provided a thorough discussion of the Veteran's medical history, and acknowledged his complaints, but also considered the results of diagnostic testing such as x-rays and an MRI conducted in September 2010. The examiner also conducted a thorough physical examination, which included tests of muscle strength, muscle tone, and reflexes. No radicular distribution, sensory impairment or asymmetry was found in the lower extremities. The examiner concluded that, neurologically, the Veteran did not show any radiculopathy or neuropathy in either of the lower extremities due to his spine and disc disorder, nor did he see any symptoms due to disc syndrome or stenosis of the thoracolumbar spine, related nerves, or nerve root compression. The examiner further concluded that no bowel or bladder impairment was identified that could be explained based on the spine or disc condition. The Board ultimately places far more probative weight on the results of his examination than on the isolated clinical findings noted above. Notably, since this examination, the Veteran's treatment records have failed to show any evidence of radiculopathy of the lumbar spine. A VA treatment record from October 2012 did show cervical radiculopathy, but that was secondary to an unrelated left arm disability. The Veteran does continue to report hip pain, and has been granted service connection for osteoarthritis of the right and left hip. The Board has again considered the Veteran's own complaints of manifestations in his lower extremities. As a layperson, he is certainly competent to report pain and other symptoms. However, the degree to which any symptoms in his lower extremity are neurological in nature and related to his lumbar spine disability is a complex medical question that requires bringing to bear specialized medical knowledge and training beyond mere observation through the five senses. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board finds such a question to be even more complex in this particular case as the Veteran is service-connected for osteoarthritis in both the left and right hip and the disability ratings assigned for those disorders contemplated symptoms such as pain and limitation of motion. For these reasons, the Board finds the conclusions of the VA examiner far more probative than the Veteran's report of symptomatology. The Board recognizes that the VA examiner did express an opinion in terms of either causation or aggravation, which are the traditional theories of entitlement to secondary service connection contemplated by Allen and the provisions of 38 C.F.R. § 3.310. However, as noted, Note (1) of the general rating criteria for evaluating lumbar spine disability contemplates awarding a separate disability ratings for any neurological manifestations of a lumbar spine disability. Thus, the claim presented by this case is more akin to that of whether separate disability ratings are warranted as contemplated by Esteban v. Brown, 6. Vet. App. 259, 262 (1994), wherein the Court held that separate disabilities arising from a single disease entity are to be rated separately, than it is a traditional claim for secondary service connection. For this reason, focus of this case has been whether the already service-connected lumbar spine disorder is manifested by radiculopathy or other neurological deficits, rather than whether a separate and distinct neurological disorder is present in the lower extremities that has been caused or aggravated by the lumbar spine disorder. The theory of aggravation would be applicable in the case of a separate and distinct neurological disorder of the lower extremities that has been permanently aggravated by the lumber spine disability or by neurological manifestations of the lumbar spine disability. However, there has been no suggestion in the record of any separate and distinct neurological disorder of the lower extremities so as to give rise to the possibility of aggravation. For this reason, and as no such neurological deficit whatsoever was identified by the VA examiner, any question of aggravation is moot. In summary, considering the medical evidence of record, the Veteran's statements, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for neurological deficits related to the Veteran's back disability. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and it must be denied. 38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for claimed neurological manifestations of a lumbar spine disability is denied. ____________________________________________ Michael Lane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs