Citation Nr: 1340535	
Decision Date: 12/09/13    Archive Date: 12/20/13

DOCKET NO.  10-12 740	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for radiculopathy of the bilateral lower extremities, to include as secondary to a service-connected low back disability.   

2.  Entitlement to service connection for left and right knee disorders.

3.  Entitlement to a rating in excess of 20 percent for a low back disability.  


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Haddock, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1983 to May 1988.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO).  In January 2011, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the claims file.  

In reviewing this case, the Board has not only reviewed the physical claims file but also the file on the Virtual VA and VBMS to insure a complete review of the evidence.  


FINDINGS OF FACT

1.  In January 2011, prior to the promulgation of a decision, the Veteran withdrew the claims regarding the knees and low back.  

2.  Radiculopathy of the bilateral lower extremities is causally related to a service-connected low back disability.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal by the Veteran with regard to the issues of service connection for left and right knee disorders and an increased rating for a low back disability have been met.  38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).

2.  Radiculopathy of the bilateral lower extremities is proximately due to or the result of a service-connected disability.  38 U.S.C.A. §§ 337, 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Dismissals

In the January 2011 hearing before the Board, the Veteran indicated her desire to withdraw the portions of her appeal seeking service connection for left and right knee disorders and a higher rating for a low back disability.  The oral withdrawal was made on the record and a transcript of the hearing has been associated with the claims file.  Accordingly, the Board does not have jurisdiction to review those issues on appeal and they are dismissed.

Service Connection for Lower Extremity Radiculopathy

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Relevantly, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

The Veteran's primary contention is that radiculopathy of the bilateral lower extremities has been caused by and/or aggravated by her service-connected low back disability.  She has not alleged, nor is there evidence to suggest, that her current radiculopathy of the bilateral lower extremities was directly caused by her active duty service.  

The evidence in support of the claim includes VA treatment records beginning in October 2007 reflecting complaints of chronic low back pain with pain radiating into both of the lower thighs.  The diagnosis was radiculopathy.  In October 2008, she was diagnosed with chronic low back pain and radiculopathy due to degenerative joint disease of the lumbar spine.  A December 2008 VA examination report indicated that she complained that her low back disability caused occasional radiating pain into her right posterior thigh.  

The evidence weighing against the claim includes a January 2009 VA examination report which notes that the Veteran had a diagnosis of bilateral lumbar radiculopathy by history only but that there was no clinical or objective evidence of radiculopathy; however, decreased sensation in both lower extremities was noted on examination.  The Board finds this evidence to be contradictory.  Further, the examiner noted that he did not conduct a review of the claims file in conjunction with the VA examination.  

Even considering that the January 2009 VA examination can be interpreted as weighing against the claim, the positive and negative evidence is at least in equipoise.  As such, the benefit of the doubt weighs in favor of the Veteran and the appeal is granted.


ORDER

The appeals for entitlement to service connection for left and right knee disorders and a rating in excess of 20 percent for a low back disability are dismissed.  

Service connection for radiculopathy of the bilateral lower extremities is granted.  



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs