Citation Nr: 1636339 Decision Date: 09/16/16 Archive Date: 09/27/16 DOCKET NO. 10-42 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for neurological disability involving the right lower extremity, to include as secondary to service-connected low back disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1982 to March 1987. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In connection with this appeal, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge in April 2014. A transcript of the hearing is associated with the record. When this claim was before the Board in September 2014, it was remanded for additional development and adjudicative action. The case has since been returned to the Board for further appellate action The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System. FINDING OF FACT Neurological disability involving the right lower extremity has not been present during the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for neurological disability involving the right lower extremity have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that the Veteran's service treatment records (STRs) and available post-service VA and private medical records have been obtained. Further, the Veteran was afforded a VA examination in March 2016. The Board finds the March 2016 VA examination report adequately addressed the requested inquiry in compliance with the Board's remand directive. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all 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 be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non service-connected disability by a service-connected disability is also compensable. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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. 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 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In April 2008, the Veteran claimed that he has a neurological disorder affecting the right lower extremity due to a low back disability. The Board notes that the Veteran was granted service connection for low back disability in the Board's September 2014 decision. An August 1984 service treatment record (STR) shows an assessment of low back pain/strain due to a contusion and intercostal ligamentous injury after playing basketball. An August 1986 STR documents a complaint of low back pain for one day with no muscle weakness or neurological symptoms. The Veteran elected to forego a separation medical examination in February 1987. In March 1993 to October 1993 private treatment records, the Veteran was diagnosed with subluxation of lumbar spine at L4-5, with referred sciatic neuritis due to symptoms of left side antalgic, bilateral lumbar spine spasm, tenderness over sacroiliac joints, tenderness over sciatic notches, tenderness over ischia, positive percussion at L1-5, positive Kemp's sign, positive Minor's sign, positive Goldthwaite's bilaterally, positive Ely's right side, positive Nachlas' bilaterally, positive Patrick's test bilaterally, and decreased range of motion of the lumbar spine. Treatment notes from Dr. G.M. dated from November 2003 through June 2006 report continued low back pain that radiated to the lower extremities assessed as pain, lumbar radiculopathy, and osteoporosis. According to a November 2003 private treatment record, the Veteran reported a history of low back pain on the right side that radiated down the right lower extremity for about 18 months with continued dull, aching pain, numbness, and tingling of the right foot. Dr. G.M. found positive straight leg raise test and lumbar pain at L4-5 and L5-S1, and gave a diagnostic impression of lumbar radiculopathy and osteoporosis, unspecified. A November 2003 electrodiagnostic test of the lower extremities disclosed no sensory or motor neuropathy. In a December 2003 follow-up examination, the Veteran's MRI scans revealed right lower extremity pain without focal weakness. Nerve conduction studies of lower extremities were negative for any acute findings and the Veteran was not assessed with radiculopathy. In January 2004, the Veteran reported numbness in the right leg and was assessed with lumbar radiculopathy. According to an April 2004 treatment note, the Veteran reported a pinching sensation in the low back with no sciatic radiation with an assessment of degenerative disc disease, lumbar or lumbosacral, lumbar disc protrusion, and osteoporosis. A July 2004 treatment note indicates the Veteran had pain aggravated by bending, twisting, reaching, and lifting that was aggravated by work and was assessed with lumbar disc protrusion, lumbar radiculopathy, and osteoporosis. In a July 2004 statement, Dr. G.M. reported a diagnosis of lumbar radiculopathy with disc herniation, spondylolisthesis, and osteoporosis and opined that bending, twisting, stooping, kneeling, lifting, reaching overhead, pushing, and pulling would aggravated lumbar spine pain. A November 2006 private treatment record gives an impression of extrusion of disc at L5-S1 that caused anterior displacement and mild impingement of the left neural foramen. Worker's compensation records dated from October 2006 to March 2007, reflect diagnoses of lumbar spondylosis, lumbar spondylolisthesis L5-S1, and lumbar stenosis and note that a neurovascular examination was within normal limits for the lower extremities for motor, sensory, and reflexes. According to a February 2010 VA treatment note, the Veteran reported low back pain with no radiating pain to the legs on quadrant testing or Pheasant's test, but pain was produced on straight leg raising. In a June 2010 VA examination, the Veteran reported a history of chronic low back pain ever since treatment for back strain in 1986, and current symptoms of fatigue, decreased motion, stiffness, spasm, and constant low back pain that radiated to the left leg. Sensory examination reported normal lower extremity findings to vibration, position sense, pain or pinprick, light touch, and there was no dysesthesia. The examiner diagnosed lumbosacral strain with no objective evidence of radiculopathy that caused decreased mobility and pain. In connection with December 2010 VA treatment, the Veteran reported a history of low back pain that radiated to the lower extremities for two years following an injury while working at the postal service. A January 2011 VA treatment record indicates the Veteran had low back pain that radiated down both legs with numbness. The VA treatment provider noted the Veteran ambulated independently, walked on toes and heels without difficulty, and had intact sensory to light touch, normal motor strength, muscle tone, and reflexes at the right knee and ankle, and tested negative for Hoffman's and Babinski's sign. In the April 2014 Board hearing, the Veteran testified that he injured his back in service and continued to have back pain since then. He stated that his neurological impairment was due to his back problems. In connection with VA treatment from July 2014 to March 2016, the Veteran reported low back pain radiating to the lower extremities and was assessed with chronic mechanical low back pain with L5-S1 shallow central disc herniation with minor touching of the traversing right S1 nerve root. According to a March 2015 VA treatment note, the Veteran reported low back pain that extended into the his lower extremities and was found to have altered light touch sensation, intact motor and tone, full symmetric deep tendon reflexes, and no objective signs of neurological impairment other than subjective alteration of light touch along the lateral aspects of the feet. In a March 2016 VA examination, the Veteran reported intermittent pain that radiated to both lower extremities that he believed was related to a pinched nerve from the service-connected low back condition with intermittent numbness and painful leg hair. The examiner noted symptoms of moderate pain and mild paresthesias, dysthesias, and numbness, normal strength at knee extension, ankle plantar flexion, and ankle dorsiflexion, normal deep tendon reflexes and sensory testing results. The examiner noted review of the claims file and declined to diagnose a peripheral nerve condition. The examiner concluded that there was no clinical evidence of right lumbar radiculopathy and found all lower extremity nerves to be normal. After careful review of the evidence, the Board concludes that service connection for neurological disability involving the right lower extremity is not warranted because the claimed disorder has not been present during the period of the claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In 2007 and on almost all of the examinations performed during the period of the claim (April 2008 to the present), the neurological findings pertaining to the Veteran's right lower extremity have been normal. Moreover, none of the examinations performed during the period of the claim resulted in a diagnosis of lumbar radiculopathy. The June 2010 and March 2016 examinations provided in response to the claim both disclosed no evidence of lumbar radiculopathy. Moreover, the medical evidence pertinent to the period of the claim does not show that the Veteran has been found to have any other neurological disorder involving the right lower extremity. The Board acknowledges that the Veteran sincerely believes that he has a neurological disorder of the right lower extremity due to his service-connected low back disability. The Veteran is certainly competent to report his symptoms. Never the less, his reported symptoms have been considered by the health care professionals who have evaluated him during the period of the claim. They have determined that he does not have the disability for which service connection is sought. The Board must find the medical evidence against the claim to be more probative than the Veteran's statements. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to the claim because the preponderance of the evidence is against the claim. ORDER Service connection for neurological disability involving the right lower extremity, to include as secondary to service-connected low back disability, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs