Citation Nr: 1337871 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-36 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for radiculopathy of the bilateral lower extremities, to include as secondary to service-connected thoracolumbar spine L5-S1 degenerative disc disease, L4-L5 disc bulge, muscular spasms, and degenerative changes (low back disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active service from February 1982 to July 1982, from November 2001 to December 2002, and from February 2003 to January 2004, including service in Kuwait from April 2003 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board remanded this matter in December 2011 and February 2013 for additional development. As a final introductory matter, the Board acknowledges that it previously remanded the Veteran's claim for a right knee disorder. Thereafter, the RO issued an April 2012 rating decision granting service connection and assigning an initial 10 percent rating for retropatellar syndrome of the right knee, effective December 29, 2005. As such, this issue is no longer before the Board The issues of entitlement to service connection for a left ankle disorder and an increased rating for a low back disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's radiculopathy of the lower extremities is due to his service-connected low back disability. CONCLUSIONS OF LAW 1. Radiculopathy of the right lower extremity is proximately due to or the result of service-connected low back disability. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 2. Radiculopathy of the left lower extremity is proximately due to or the result of service-connected low back disability. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for radiculopathy of the lower extremities. As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. Throughout the appeal, the Veteran asserts that he has right and left lower extremity impairment, and indeed, he initially challenged the evaluation of his service-connected degenerative disc disease of the lumbar spine by citing to this pathology. The Veteran reports having chronic right and left lower extremity radiculopathy and therefore asserts that service connection is warranted for this condition. 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). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform with the decision of the United States Court of Appeals for Veterans Claims (Court) in Allen; however, based upon the facts in this case the regulatory change does not impact the outcome of the claim. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptomatology. 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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 v. Nicholson, 492 F.3d 1372, 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 that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). 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). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("(A) medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran complained of low back pain with paresthesias in April 2006 and was assessed with lumbar spine radiculopathy. Further, he has competently and credibly reported having right and left lower extremity radiculopathy throughout the appeal. The Veteran underwent a VA examination in March 2012. He reported that low back pain radiates to the upper back and bilateral lower extremities, and that he takes Meloxicam and Tramadol for pain relief. The examiner opined that there is no clinical evidence of any left and right lower extremity impairment, radiculopathy, or peripheral neuropathy at this moment. Based on the totality of the evidence, the Board finds that the Veteran's radiculopathy of the lower extremities is due to his service-connected low back disability. The evidence is at least in equipoise on this point, and thus the Veteran is to be given the benefit of the doubt. 38 U.S.C.A. § 5107(b). Although the March 2012 VA examiner found no clinical evidence of radiculopathy at the exact moment of examination, the Board finds it significant that the Veteran was taking medication to relieve his bilateral lower extremity pain. Moreover, the Veteran was previously diagnosed with radiculopathy during the pendency of the appeal in April 2006. VA precedential case law dictates that a diagnosis rendered at any time during the pendency of the appeal must be considered evidence of a current disability in support of the Veteran's claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, as noted above, the Veteran has credibly and competently complained of recurrence of pain and numbness of the bilateral lower extremities. The Board finds that the Veteran's radiculopathy of the lower extremities is proximately due to or the result of his service-connected low back disability. Accordingly, secondary service connection for radiculopathy of the lower extremities is warranted. As the Board has granted secondary service connection it need not address direct service connection in this matter. ORDER Service connection for radiculopathy of the right lower extremity is granted. Service connection for radiculopathy of the left lower extremity is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs