Citation Nr: 1625741 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 09-42 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for radiculopathy of the bilateral lower extremities. 2. Entitlement to service connection for cervical radiculopathy of the bilateral upper extremities. 3. Entitlement to an initial rating in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD). 4. Entitlement to an effective date prior to December 16, 2006, for the award of service-connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to October 1978 and from August 2005 to December 2006. He also served in the Army National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran presented testimony before the Board in October 2014. The transcript has been obtained and associated with the electronic (i.e. paperless) record. The claims pertaining to service connection for radiculopathy of the upper and lower extremities, as well as a claim for a back disability, were previously before the Board in December 2014 and remanded for further development and adjudication. But the Board has determined there was not the acceptable substantial compliance with the remand directives concerning the claim for cervical radiculopathy of the upper extremities, since there are deficiencies in the VA compensation examination opinion and rationale. Thus, the Board is again remanding this claim. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error in failing to ensure this compliance); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The claim for a back disability was subsequently granted and as such, there no longer remains a claim in controversy. See November 2015 Rating Decision. In June 2014, the RO awarded service connection for PTSD and assigned a 30 percent rating effective December 16, 2006. The Veteran was notified of the award in January 2015. The Veteran filed a notice of disagreement (NOD) with the initial rating and effective date in September 2015. The Veteran was not issued a statement of the case (SOC). Where an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran appears to have raised a claim of service connection for "undiagnosed illnesses signs [and] symptoms - liver/kidney/joints, etc." See VA Form 21-0958 dated in September 2015. The evidence of record also raises a claim of service connection for bilateral carpal tunnel syndrome. These matters 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. 38 C.F.R. § 19.9(b) (2015). The claim for cervical radiculopathy of the upper extremities, as well as the claims pertaining to PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran is not currently shown to have diagnosed radiculopathy of the bilateral lower extremities. CONCLUSION OF LAW The criteria for service connection for radiculopathy of the bilateral lower extremities have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre- adjudication notice by letter dated in December 2006. VA also has a duty to assist the Veteran in the development of the claim. VA has obtained service treatment and personnel records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony in support of his appeal, the transcript of which has been associated with the electronic record. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's electronic record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection is granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For some 'chronic diseases,' such as organic diseases of the nervous system, presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, Fed. Cir. 2013). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. After careful consideration of all procurable and assembled data, the Board finds that service connection for radiculopathy of the bilateral lower extremities is not warranted. The Board finds that the evidence of record fails to document a current disorder manifested by radiculopathy of the lower extremities that is attributable to the Veteran's service. Notably, service treatment records and post-service treatment records, including a November 2007 electromyography (EMG) and reports of VA examination dated in October 2009 and October 2015 were negative for the claimed condition. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise, i.e. whether there is a current disability. To the extent that the medical evidence documents and the Veteran has alleged bilateral leg pain, the Board notes that when determining whether there is a current disability, pain alone is not sufficient. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). For VA disability compensation purposes, pain alone is not considered to be a disability, but instead there must be another disability underlying complaints of pain. See id. A symptom without a diagnosed or identifiable underlying malady or condition does not, in and of itself, constitute a disability. Without a pathology to which the complaints of pain or numbness can be attributed, there is no basis to find radiculopathy of the bilateral lower extremities for which service connection may be granted. See id. In the absence of proof of radiculopathy of the bilateral lower extremities there is no valid claim for service connection. In light of the foregoing, the Board concludes that the preponderance of the evidence establishes that the claimed radiculopathy of the bilateral lower extremities has not been present at any time during the pendency of this claim. As a result, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. In the instant appeal, the claim for service connection for radiculopathy of the bilateral lower extremities must be denied because the first criterion for the grant of service connection-competent evidence of the disability for which service connection is sought-is not met. ORDER Entitlement to service connection for radiculopathy of the bilateral lower extremities is denied. REMAND The Veteran is also claiming entitlement to service connection for cervical radiculopathy of the bilateral upper extremities. A preliminary review of the record on appeal, however, reveals this other claim is not ripe for appellate disposition. In the prior December 2014 remand, the Board determined that a VA examination was necessary to determine whether the Veteran had cervical radiculopathy of the bilateral upper extremities and if so, whether it was related to the Veteran's active military service and/or the service-connected cervical spine injury. The VA examination and medical opinion obtained in response to this request was rendered in October 2015, but unfortunately it is not adequate. Notably, as a basis for finding no current cervical radiculopathy and no established nexus, the examiner indicated that there was no objective evidence in the claims file to support a diagnosis or treatment of bilateral upper extremity radiculopathy; however, the examiner failed to comment on or make reference to the multiple records showing treatment for cervical radiculopathy and cervicalgia in 2006 and 2007. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Consequently, the Board must obtain additional comment on this determinative issue to ensure the opinion is adequate. Id. Finally, as noted in the Introduction, the issues of entitlement to an initial rating in excess of 30 percent for the service-connected PTSD and an effective date prior to December 16, 2006, for the award of service connection for PTSD, are not ready for appellate disposition as remand is required for issuance of an SOC. When an NOD has been filed, as the case with respect to these issues, the RO must issue an SOC. Manlincon, 12 Vet. App. at 240-41; see also Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995) (noting that the filing of a notice of disagreement initiates the appeal process and requires VA to issue a statement of the case). Accordingly, the case is REMANDED for the following action: 1. If available to provide further comment, obtain an addendum opinion from the examiner who rendered the October 2015 VA opinion. Otherwise the opinion must be rendered by someone with the necessary qualifications or competence to comment. Explanatory rationale must be provided, regardless, citing to specific evidence in the file supporting conclusions. If the requested opinion cannot be provided without resorting to mere speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resorting to mere speculation. Merely saying he/she cannot respond will not suffice. To wit: the examiner must comment on the likelihood (very likely, as likely as not, or unlikely) that the the Veteran's current complaints with respect to his bilateral upper extremities are directly related to any event, injury, or disease during his military service, including particularly the diagnoses during his service of cervical radiculopathy and cervicalgia in 2006 and 2007. In other words, the examiner MUST discuss why this very same or similar diagnosis during the Veteran's service is insufficient to conclude that he is now experiencing the very same condition. Note: the term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. ** In answering this question, the examiner is informed that the Veteran is competent to report certain events having occurred during his service and is equally competent to report on symptoms experienced and treatment provided both during and since his service because this is based on his firsthand knowledge. ** The examiner is informed that it is not enough merely to conclude the Veteran does not have the claimed condition, even if not diagnosed during this current or prior evaluation. He only instead needs to show he has had this claimed condition at some point since the filing of his claim or contemporaneous thereto, even if now resolved. 2. After the development requested has been completed, the RO must review the medical opinion to ensure that it is in complete compliance with the directives of this Remand. If the medical opinion is deficient in any manner, the RO must implement corrective procedures at once. 3. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claim of service connection for cervical radiculopathy of the bilateral upper extremities. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 4. The RO must issue an SOC and notification of the Veteran's appellate rights on the issues of entitlement to an initial rating in excess of 30 percent for the service-connected PTSD and an effective date prior to December 16, 2006, for the award of service connection for PTSD. 38 C.F.R. § 19.26. The Veteran is reminded that to vest the Board with jurisdiction over these issues, a timely substantive appeal for that matter must be filed. 38 C.F.R. § 20.202. If the Veteran perfects an appeal as to these issues, the case must be returned to the Board for appellate 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). These claims 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs