Citation Nr: 1514046 Decision Date: 04/01/15 Archive Date: 04/09/15 DOCKET NO. 07-38 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to a service-connected back disability. 2. Entitlement to service connection for sexual dysfunction, to include as secondary to a service-connected back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G.R. Waddington, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1981 to June 1982. He had reserve service, including active duty for training, from July 1, 1998 to July 7, 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2012, the Board granted service connection for an acquired psychiatric disorder, to include as secondary to a low back disability. In February 2013, the Appeals Management Center (AMC) granted service connection for tinnitus of the left ear. These issues are no longer on appeal and are not addressed in this opinion. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The February 2012 Board remanded the issue of entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to a service-connected back disorder. Pursuant to the remand instructions, the AMC obtained the Veteran's personnel records and outstanding VA medical records (VAMRs), requested that the Veteran identify any pertinent private medical records (PMRs), and provided a VA examination. See August 2012 VCAA Letter; February 2013 Supplement Statement of the Case (SSOC); April 2013 VA Examination Report. The Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. W., 13 Vet. App. 141, 147 (1999) (requiring substantial compliance with Board remand directives). The issue of entitlement to service connection for sexual dysfunction is addressed in the REMAND section of this decision and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have right lower extremity radiculopathy that was caused or aggravated by a service connected low back disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for right leg radiculopathy, to include as secondary to a service-connected back disorder, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2014). A May 2006 letter notified the Veteran of the elements of service connection and informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his service-connection claims. The letter also informed the Veteran of the elements of secondary service connection. The duty to notify is satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records (STRs) and other pertinent records, including private medical records (PMRs). See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's STRs, PMRs, and VA medical records (VAMRs) as well as records from the Social Security Administration (SSA). The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The April 2013 VA examiner reviewed the Veteran's claims file, performed an in-person examination, and provided a clear rationale in support of her opinion. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The April 2013 VA examination is adequate to decide the Veteran's claim. VA has satisfied its duties to notify and assist and the Board may proceed with appellate review. Merits of the Claim Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2014). Entitlement to service connection may be established with 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 current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).). 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Entitlement to service connection may also be established on a secondary basis for a disability that is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). The United States Court of Appeals for Veterans Claims (Court) has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish service connection on a secondary basis, the evidence must show that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). The Veteran injured his back in July 1998 while lifting a tent during active duty for training. See July 1998 Military Personnel Records; January 1999 VA Examination Report. Service connection is in effect for degenerative disc disease effective July 1998 and radiculopathy of the left lower extremity effective April 2006. See March 2003 and May 2009 Rating Decisions. Military Medical Records (MMRs) from July 1998 document left-side radicular symptoms associated with an in-service back injury as well as right leg numbness. X-rays taken in the same month (July 1998) reveal normal alignment of the lumbar spine at L5 and scoliosis of the lower lumbar. See also August 1998 MMRs (reporting low back pain with left lower extremity numbness). October 1998 MMRs indicate that the Veteran experiences left leg radicular symptoms. See also July 1998 MMRs (documenting left foot and leg numbness). During a January 1999 VA examination, the Veteran reported that he experienced low back pain with occasional radiation to the left low extremity. See also February 1999 MMRs. He also reported that he did not require the use of any ambulatory devices. Physical examination revealed negative straight leg raising tests bilaterally, no pain with spinal movement, and some weakness and spasms in the back. The examiner diagnosed the Veteran as having lumbar sprain; he did not diagnose radiculopathy. A March 1999, electromyographic examination study was essentially normal, except that it revealed paravertebral muscle irritability mostly on the L4 and L5 roots. See also April 1999 MMRs. The following month (April 1999), an MRI showed degenerated disc and bulging annulus fibrosus at L5-S1. The MRI was otherwise normal. The Veteran continued to report low back pain with associated left leg pain and numbness through 2000. July 1999 MMRs (reporting numbness in the left leg); November 1999 VAMRs (noting low back pain and radiculopathy without specifying the effected lower extremity); February 2000 MMRs (noting chronic low back pain with left radiculopathy); April 2000 VAMRs (noting left leg numbness that resolved and ongoing left leg weakness); May 2000 RO Hearing Transcript (testifying as to the etiology of his back disorder, ongoing back pain, and physical therapy treatment); see also March 2000 VAMRs, June 2000 VAMRs, June 2000 MMRs, and August 2000 MMRs (documenting low back pain, numbness, cramping, burning, and pain in the left lower extremity). In April 2000, the Veteran alleged that he had right heal pain that radiated up to his right thigh as well as pain in his lower extremities, bilaterally, when exercising. A private neurological evaluation performed in October 2000 was inconclusive as to the Veteran's radicular symptoms (right and left lower extremities). The physician diagnosed the Veteran as having low back pain, and while he observed that the Veteran reported had decreased pinprick right lower extremity response, he also had normal vibration and positions, with found no atrophy or weakness. See December 2000 MMRs (noting low back pain and L4-L5 radiculopathy). In January 2001, the Veteran reported numbness in his legs. January 2001 MMRs. An EMG study performed in the same month (January 2001) showed nerve root irritability at L4-L5. A September 2001 SSA disability determination found that the Veteran had L4-L5 radiculopathy. During a February 2003 VA examination, the Veteran reported "moderate low back pain with radiation to the left buttock, thigh, and posterior left leg up to the ball of the foot on the great toe area." He also reported a constant burning sensation in his left thigh, but no symptoms associated with his right leg. Physical examination revealed no significant sensation deficits in the right leg. In March 2004, a motor and sensory nerve conduction study revealed "chronic L5-S1 radiculopathy" without specifying the effected extremity. See also February 2004 VAMRs (diagnosing severe degenerative lumbar joint disease and lumbosacral radiculitis); June 2004 VAMRs (noting lumbosacral radiculitis). In August 2004, the Veteran reported "heaviness and sleepiness" in both legs but no shooting pain. An MRI performed in the same month (August 2004), revealed minor abnormalities of the lumbar spine, to include a small annular tear at the L5-S1 interspace. The Veteran's symptoms subsided in late 2005. In October 2005, a private physician assessed the Veteran as having had lumbar radiculopathy but the Veteran had no then-present complaints associated with the disorder. In February 2006, a private neurological evaluation found "no objective evidence of neurological deficit." The private neurologist noted that the Veteran had a normal gait without the use of a cane and that he was able to sit, stand, walk and handle objects without difficulty. In the same month (February 2006), an MRI study found narrowed L5-S1 disc space, but did not mention radiculopathy. By mid-2006 the Veteran's symptoms had returned. In June 2006, a VA examiner diagnosed the Veteran as having lumbar spine radiculopathy of the left lower extremity; he did not diagnose radiculopathy of the right lower extremity. See December 2006 and January 2007 VAMRs (reporting numbness in the right leg). A January 2007 EMG study was normal and revealed no electromyographic evidence of active right radiculopathy. However, in October 2007 a VA physician noted that the Veteran's radicular pain was on the left side. In January 2009, the Veteran reported cramping in both legs and in March 2009 he reported worsening back pain with increased pain in his right leg and considerable pain in his left leg. January 2009 and March 2009 VAMRs. A January 2009 MRI showed L4-S1 posterolateral bulging and facet arthropathy with bilateral neuroforaminal stenosis and loss of disc hydration. In April 2009, a VA examiner diagnosed the Veteran as having radiculopathy on the left side and minimal right sided L4-L5 sciatica shooting pain. The Veteran reported "worsening left sided sciatica and dysesthesia" with numbness as well as rare, intermittent right sided sciatica not as bad as on the left side. On examination, the examiner found sensory loss related to the Veteran's left lower extremity with distribution at L4-L5 and minimal right sided L4-L5 sciatic shooting pain, very infrequent, and no motor weakness. He also found very minimal Lasegue's sign on the right side. The examiner opined that the Veteran's low back disorder and left side radiculopathy were related to service. However, he did not include the Veteran's right-side neurological symptoms in his summary of medical problems/diagnoses or opine as to whether these symptoms related to service. In June 2009, a VA physician observed that the Veteran experienced mild right peroneal neuropathy. The physician based his observation on the results of a March 2009 EMG study. In January 2012, another VA physician diagnosed the Veteran as having lumbar radiculopathy since February 2006. The April 2013 VA examiner diagnosed the Veteran as having mild peroneal neuropathy. She noted that the Veteran injured his back on active duty and immediately experienced localized back pain as well as radicular pain that affected his left lower extremity. She also noted that beginning in 2004 the Veteran began experiencing a burning sensation and cramps in his right thigh, occasionally dragged his right foot when walking, experienced a cold sensation from the right knee down, and cramps in his right toes. Physical examination revealed that the Veteran had mild pain (constant and intermittent), mild paresthesias/dysesthesias, mild numbness, and normal muscle strength in both extremities. Physical examination also revealed sensory deficits in the right lower extremity not localized to a specific dermatome, normal gait, and normal nerve functioning except for mild incomplete paralysis of the right external popliteal. The Veteran had a positive straight leg raising test while lying down, but the results were not reproducible in the sitting positon when the Veteran was distracted. The examiner noted that a nerve conduction study revealed prolonged distal motor latency and mild right peroneal neuropathy. The April 2013 VA examiner concluded that Veteran did not have right lower extremity radiculopathy. She explained that a positive straight leg raising test is not, by itself, proof of lumbar radiculopathy, especially when the pain was not reproducible on repeat testing. She listed the clinical findings necessary to diagnose radiculopathy and noted that electrodiagnostic studies performed in 2007 and 2009 were negative for right lumbosacral radiculopathy. She also explained that peroneal neuropathy is a common disorder that effects sensation/movement below the knee and is not in any way related to the Veteran's low back disorder. The April 2013 VA examination report constitutes highly probative evidence that weighs against service connection for radiculopathy of the right lower extremity. The examination was conducted by a VA doctor who reviewed the Veteran's claims file and pertinent medical history, examined the Veteran, and clearly explained that the Veteran does not suffer from right-side radicular pain. The examiner's findings are consistent with the clinical medical evidence (to include EMG studies that were negative for right-side neurological pain) and with previous VA examination findings (to include the April 2009 VA examiner's findings) and are based on medical principle. See also February 2003 and June 2006 VA Examination Reports. The Board has also considered the Veteran's statements regarding the etiology of his right-side neurological symptoms. In December 2007, the Veteran alleged that the continued deterioration of his spinal discs has resulted in right side radiculopathy and that "the radiculopathy of the right lower extremity is the same problem I have with the left lower extremity." See December 2007 Substantive Appeal (VA Form 9). In December 2011, the Veteran noted that the June 2006 VA examiner did not diagnose right-side radiculopathy; however, he also noted that the April 2009 VA examiner diagnosed right-side radiculopathy attributable to the Veteran's service-connected lumbar spine disability. However, the April 2009 VA examiner did not diagnose right-side radiculopathy. The examiner diagnosed minimal right-side L4-L5 sciatic shooting pain and left-side radiculopathy. In this respect, the examiner clearly distinguished between the Veteran's right-side neurological symptoms and his left-side neurological symptoms. Further, the April 2013 VA examination was specifically conducted to identify the exact nature of the Veteran's alleged right-side neurological symptoms as these symptoms were documented by the April 2009 VA Examiner, but not attributed to a specific medical disorder. Although the Veteran is competent to report objective symptoms observable by a layperson such as numbness and pain, whether he has right-side radiculopathy that relates to service is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77, n.4 (Fed. Cir. 2007); 38 C.F.R. § 3.317(a)(1) and (3). Instead, such a determination must be made by a medical professional with appropriate expertise. See id. Although the Veteran is a trained nurse, the evidence of record does not show that his statements regarding the etiology of his right side neurological symptoms are based on specialized medical knowledge. In contrast, the VA examiner is a neurologist with specialized training and expertise in nerve disorders. Thus, the Veteran's assertion that his symptoms constitute right-side radiculopathy and that this radiculopathy relates to service is outweighed by the VA examiner's opinion, which was rendered by a medical expert in neurological disorders. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994). Absent a diagnosis, the Veteran's claimed right-side radiculopathy does not qualify for service connection on a direct or secondary basis. The medical evidence does not show that the Veteran had right-side radicular pain in or within a year of service or link the Veteran's current right-side neurological symptoms to service or to his service-connected low back disability. The preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt rule does not apply and service connection for radiculopathy of the right lower extremity, to include as secondary to a service-connected low back disorder, is denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for radiculopathy of the right lower extremity, to include as secondary to a service-connected back disability, is denied. REMAND The November 2012 VA examination report is not responsive to the Board's February 2012 remand directives as to the remaining issue. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based on factual inaccuracy has no probative value). The VA examiner failed to provide an opinion, based on her finding that there was "no evidence of erectile dysfunction." However, the medical evidence establishes that the Veteran was assessed as having sexual dysfunction and was treated for erectile dysfunction (ED) during the pendency of the claim. The February 2012 remand directives did not limit the VA examiner's inquiry to ED; rather, the directives asked the examiner to determine if the Veteran's sexual problems (to include, but not limited to ED) relate to service in any manner - this would include the now service-connected psychiatric disorder. The case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records dating from April 2013 forward and associate them with the claims file. 2. After the passage of a reasonable amount of time or upon the Veteran's response, return the claims file to the VA examiner who performed the November 2012 examination for an addendum medical opinion as to the etiology of the Veteran's sexual dysfunction. If the examiner is not available, a different examiner may render the opinion. The entire claims file, to include a copy of this REMAND, must be made available to the VA examiner, who must note its review. The following considerations should govern the opinion: a. The examiner must diagnose the Veteran's sexual dysfunction. If diagnosis is not possible, the examiner must explain why he or she cannot diagnose the Veteran's sexual problems. Any explanation must discuss the medical records that document treatment for sexual problems, to include prescription medications and devices, and reconcile these medical findings with the examiner's opinion. b. IF, AND ONLY IF, the VA examiner diagnoses the Veteran's unspecified sexual dysfunction as it is not limited to ED, he or she must opine as to whether the dysfunction was caused OR AGGRAVATED by military service. c. IF, AND ONLY IF, the VA examiner diagnoses the Veteran's unspecified sexual dysfunction, he or she must also opine as to whether the dysfunction was caused or AGGRAVATED by a service-connected back disability. d. The examiner has an independent responsibility to review the entire record for pertinent evidence, including any pertinent medical evidence that is added to the record as a result of this remand. The examiner's attention is called to: April 2004 VA medical records (VAMRs), noting that the Veteran has problems sustaining an erection but that his problems are largely relieved by prescription medicine. June 2004 VAMRs, assessing the Veteran has having sexual problems and noting that he is responsive to Viagra. September 2004 VAMRs, reporting that the Veteran received instruction in the use of a vacuum pump. See also January 2005 VAMRs. November 2004 VAMRs, documenting the use of a vacuum pump. June 2004 and March 2006 VAMRs, prescribing Sildenafil and Vardenafil to enhance sexual activity. See also September 2004 VAMRs. January 2005 VAMRs, noting that the Veteran has difficulty maintaining an erection due to back pain. June 2006 VA Psychiatric Examination Report, noting that the Veteran had sexual problems due to his back disorder. July 2006 VA Examination Report, noting that the Veteran's back pain limits his movements, but finding "no true erectile dysfunction." December 2007 Statement, stating that the Veteran is unable to obtain an erection without physical aids and medication and that he does not have the ability to ejaculate. See also October 2007 VAMRs. January 2008 VAMRs, diagnosing erectile dysfunction as an acute physical disorder. July 2008 VAMRs, reporting persistent erectile dysfunction and that the Veteran's condition was not improved with use of a vacuum and prescription Levitra. August 2008 VAMRs, noting that the Veteran's medical history includes impotence of organic origin. January 2009 VAMRs, diagnosing impotence/weak erection/sexual dysfunction. April 2009 VA Examination Report, noting no history of erectile dysfunction. June 2009 VAMRs, assessing sexual dysfunction. See also January 2009 and March 2009 VAMRs. August 2009 VAMRs, prescribing Vardenafil for sexual dysfunction. November 2012 VA Examination Report, finding that the Veteran did not exhibit or report symptoms of ED on examination. e. The examiner must provide a complete explanation of his or her opinion, based on his or her clinical experience and medical expertise, and on established medical principles. If the examiner is not able to provide an opinion without resorting to speculation, he or she must state the reasons why such an opinion cannot be rendered. The examiner should address whether a definitive opinion cannot be provided because required information is missing (in which case the examiner should specify what information is missing) or because current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. The examiner should be as specific as possible. 4. Then, review the medical examination report to ensure that it adequately responds to the above instructions, including providing an adequate explanation in support of the stated opinion. If the report is deficient in this regard, return the case to the VA examiner for further review and discussion. 5. After the above development and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the issue of entitlement to service connection for sexual dysfunction, to include as secondary to a service-connected back disorder. If the benefits sought are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs