Citation Nr: 1752083	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO. 11-25 747	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1. Entitlement to service connection for a head disorder.

2. Entitlement to an initial rating in excess of 10 percent for left lower extremity (LLE) radiculopathy associated with service-connected degenerative disc disease (DDD) of the lumbar spine.

3. Entitlement to an initial rating in excess of 10 percent for right lower extremity (RLE) radiculopathy associated with service-connected DDD of the lumbar spine.

4. Entitlement to an effective date prior to October 22, 2014, for establishing service connection for LLE radiculopathy associated with service-connected DDD of the lumbar spine.

5. Entitlement to an effective date prior to October 22, 2014, for establishing service connection for RLE radiculopathy associated with service-connected DDD of the lumbar spine.

REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney


ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1974 to May 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2015 and March 2010 rating decisions of the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Board has modified the Veteran's claims to encompass all disorders raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the [Veteran's] description of the claim; the symptoms the [Veteran] describes; and the information the [Veteran] submits or that the Secretary obtains in support of that claim").

In a September 2014 decision, the Board denied the claim of service connection for a head disorder, then characterized as headaches. Subsequently, in April 2015, the Court of Appeals for Veterans Claims (the Court) granted a Joint Motion for Partial Remand (Joint Motion). Pursuant to the Joint Motion, the matter was remanded for the Board to either obtain a VA examination regarding the Veteran's claimed head disorder or to provide an adequate statement of reasons or basis for why an examination is not required. In January 2016, the Board remanded the service connection claim to obtain a VA examination and for issuance of a Statement of the Case (SOC) for the increased rating and earlier effective date claims. 

The issues of entitlement to service connection for a head disorder, an initial rating in excess of 10 percent for LLE radiculopathy associated with service-connected DDD of the lumbar spine, and an initial rating in excess of 10 percent for RLE radiculopathy associated with service-connected DDD of the lumbar spine are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. On July 9, 2009, the Veteran filed a claim of service connection for DDD of the lumbar spine, which the RO then granted in a March 2010 rating decision.

2. In a January 2015 rating decision, the RO granted service connection for LLE and RLE radiculopathy secondary to the Veteran's service-connected DDD of the lumbar spine.

3. The competent and credible evidence of record establishes that entitlement to service connection for LLE and RLE radiculopathy arose no later than July 9, 2009.


CONCLUSIONS OF LAW

1. The criteria for the assignment of an effective date of July 9, 2009, for the award of service connection for LLE radiculopathy associated with service-connected DDD of the lumbar spine have been met. 38 U.S.C. §§ 5110 (2012); 38 C.F.R. 3.400 (2017).

2. The criteria for the assignment of an effective date of July 9, 2009, for the award of service connection for RLE radiculopathy associated with service-connected DDD of the lumbar spine have been met. 38 U.S.C. §§ 5110 (2012); 38 C.F.R. 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012) defined VA's duty to notify and assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2017).

The appeal arises from the Veteran's disagreement with the effective date assigned following a grant of entitlement to service connection for LLE and RLE radiculopathy associated with service-connected DDD of the lumbar spine. As the Veteran's claims have been substantiated and she disagrees with the downstream issue of the effective date, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, in view of the Board's favorable decision herein, further assistance is unnecessary to aid the Veteran in substantiating her claims.

Legal Criteria & Analysis

The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b); 38 C.F.R. § 3.400 (b). Most awards of secondary service connection will arise more than one year after service; however, the rules governing direct service connection will apply when the claim is received within one year after separation from service. 38 U.S.C. § 5110 (b)(1).

The Veteran contends that she is entitled to earlier effective dates for the awards of service connection for LLE and RLE radiculopathy associated with service-connected DDD of the lumbar spine.
On July 9, 2009, the Veteran filed a claim of service connection for a low back disorder.

In April 2010, the Veteran presented to the primary care clinic with pain in the back and left gluteus. See April 2010 VA primary care nurse practitioner note. She was given an assessment of sciatic nerve pain. In a subsequent physical therapy consultation, the Veteran complained of lower back pain with worsening left gluteal pain that began a year prior. See May 2010 VA physical therapy consultation note.

The Veteran presented to an outpatient clinic in March 2011 with complaints of low back pain radiating to her legs. See VA nursing outpatient note (Virtual VA). In a following primary care visit, the Veteran complained of right leg pain that had been "worsening over the past several months." See October 2011 VA primary care nurse practitioner note (Virtual VA). The Veteran also stated in a November 2011 physical therapy consultation that she experienced back pain radiating to her legs for one and a half years. See November 2011 VA physical therapy consultation note.

In a March 2010 rating decision, the RO granted service connection for DDD of the lumber spine. The RO assigned an effective date of July 7, 2009, the date the claim was received by VA. Subsequently, in a January 2015 rating decision, the RO granted service connection for LLE and RLE radiculopathy secondary to the Veteran's DDD of the lumbar spine.

Upon review of the record, the Board finds that the competent and credible evidence of record establishes that entitlement to service connection for LLE and RLE radiculopathy arose no later than July 9, 2009. The record reflects that the Veteran complained of back pain radiating to her legs in the months after filing her claim of service connection for a low back disorder. The Veteran also indicated in October 2011 and November 2011 that she had experienced radiating leg pain for up to a year and half prior. The Board finds the Veteran competent to testify to leg pain and finds no evidence to doubt her credibility. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Due to the fact that the Veteran's service-connected LLE and RLE radiculopathy is secondary to her DDD of the lumbar spine and in light of her credible statements, the Board finds that the condition had its onset no later than July 7, 2009, the date of claim of her related DDD of the lumbar spine. 38 C.F.R. §§ 3.400(b); 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Accordingly, the criteria for the assignment of an effective date of July 9, 2009, for the awards of service connection for LLE and RLE radiculopathy associated with service-connected DDD of the lumbar spine have been met.


ORDER

Entitlement to an effective date of July 9, 2009, for the award of service connection for LLE radiculopathy associated with service-connected DDD of the lumbar spine is granted.

Entitlement to an effective date of July 9, 2009, for the award of service connection for RLE radiculopathy associated with service-connected DDD of the lumbar spine is granted.


REMAND

Head Disorder

Congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303 (c), 4.9 (2017); O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). However, the sole fact that a disorder is congenital or hereditary in origin does not preclude service connection. See O'Bryan, 771 F.3d at 1380; Quirin, 22 Vet. App. at 395; VAOGC 8-88 (Sept. 1988), reissued as VAOPGCPREC 67-90 (July 18, 1990) (noting that diseases of hereditary origin can be incurred or aggravated in service if their symptomatology did not manifest itself until after entry on duty). Only congenital "defects," as opposed to congenital "diseases," are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries under VA law. O'Bryan, 771 F.3d at 1380; VAOPGCPREC 82-90 (July 1990) (holding that "service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin"). Congenital defects are by definition static in nature. O'Bryan, 771 F.3d at 1380  (observing that a hereditary condition that cannot change is a "defect" and is not subject to the presumption of soundness under 38 U.S.C. § 1111 ); VAOPGCPREC 67-90 ("congenital or developmental defects are normally static conditions which are incapable of improvement or deterioration"). By contrast, congenital diseases are progressive in nature, and as such are capable of improvement or deterioration. O'Bryan, 771 F.3d at 1380 ("[A] congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect," even if it ceases to progress); VAOPGCPREC 67-90 ("A disease...even one which is hereditary in origin, is usually capable of improvement or deterioration").

Pursuant to the Board's January 2016 remand, the RO obtained a VA examination regarding the Veteran's claimed head disorder. See February 2017 Headaches Disability Benefits Questionnaire, Medical Opinion Disability Benefits Questionnaire. The examiner diagnosed the Veteran with head pain/complex regional pain syndrome I related to Chiari I malformation. According to the examiner, the head condition is congenital and, as such is not caused by or otherwise related to service. In addition, the examiner stated that the natural progression of the Veteran's head pain is not related to a specific incident or event. The examiner did not state whether the congenital Chiari I malformation is a defect or a disease.

Upon review of the record, the Board finds that further evidentiary development is necessary for proper adjudication of the claim. Specifically, the AOJ must obtain an addendum opinion determining whether the Veteran's congenital Chiari I malformation, which is related to her diagnosed head disorder, is a defect or a disease for VA purposes. If the examiner finds that it is a congenital disease, then he or she must determine whether it was aggravated by the Veteran's service (i.e. whether there is an increase in disability beyond the natural progress of the disease due to service). The examiner must provide a detailed rationale for any conclusions rendered.

LLE & RLE Radiculopathy

Recently, in Sharp v. Shulkin, the Court held that where an examiner concludes that he or she cannot offer an opinion on a veteran's functional limitations during flare-ups without resorting to speculation, the examiner must, first, make it clear that he or she has considered all procurable assembled data, such as obtaining all tests and records that might reasonably illuminate the medical analysis. Sharp v. Shulkin, No. 16-1385 (Vet. App. 2017). Second, the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. In this regard, it must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation of the individual examiner. 

As stated above, in January 2015, the RO granted service connection for LLE and RLE radiculopathy secondary to the Veteran's service-connected DDD of the lumbar spine. The RO assigned a 10 percent disability rating for each grant based on an October 2014 VA back examination which diagnosed the Veteran with mild radiculopathy. See October 2014 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. During the examination, the Veteran complained of flare-ups that rendered her unable to move. Id. The examiner determined that the "biggest limiting factor affecting both motion and function during a flare-up and/or repetitive use, as reported by the Veteran, is pain." Id. However, according to the examiner, a physical examination was inconclusive as to supporting or refuting the Veteran's reported functional limitation during a flare-up due to the fact that it was not conducted during a flare-up. The examiner explained that she could not determine "functional limitations in terms of degrees during a flare up of lower back without resorting to mere speculation due to examiner's inability to directly observe the patient during her usual daily and occupational activities, nor can this examiner make an definite opinion about functional ability significance during a flare-up without resorting to mere speculation as this examiner cannot determine extent of definite functional limitations [.]" Id.
Upon review of the record, the Board finds that the October 2014 VA examination is inadequate. Specifically, the examiner did not provide a sufficient rationale for her opinion that she could not determine the Veteran's functional limitations during a flare-up without resorting to mere speculation. See Sharp, No. 16-1385. As such, the increased rating claims for LLE and RLE radiculopathy must be remanded to obtain an addendum opinion regarding the functional limitations caused by the Veteran's reported flare-ups in accordance with Sharp.

The Veteran is hereby notified that it is her responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2017).

Accordingly, the case is REMANDED for the following action:

1. With any required assistance of the Veteran, obtain any outstanding VA and/or private medical records and associate them with the claims file.

2. Contact the examiner that performed the February 2017 VA examination or other appropriate medical professional, if necessary, and obtain an addendum opinion answering the following:

a) Whether the Veteran's congenital Chiari malformation I is a defect or a disease. For VA purposes, a congenital "defect" is defined as a condition that is more or less stationary in nature, whereas a congenital "disease" is defined as a condition capable of improving or deteriorating.

b) Only if the Veteran's Chiari malformation I is a congenital disease, the examiner must opine as to whether it was aggravated by her service. In this context, "aggravation" has occurred where there is an increase in disability beyond the natural progress of the disease.

If the examiner determines that an in-person examination is necessary in order to provide an opinion, then such an examination must be performed. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report.

A complete rationale must be given for all opinions and conclusions expressed. 

The examiner is advised that the Veteran is competent to report history and symptoms and that her reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, the examiner must provide a rationale for doing so.

If the examiner cannot provide an opinion without resort to speculation, the examiner must provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made.

3. In addition, contact the examiner that performed the October 2014 VA examination or other appropriate medical professional, if necessary, and obtain an addendum opinion providing a sufficient rationale for the examiner's opinion that she cannot determine the Veteran's functional limitations during a flare-up without resorting to mere speculation. If the examiner determines that an in-person examination is necessary in order to provide an opinion, then such an examination must be performed. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report.

The Board draws the examiner's attention to the requirements of Sharp, outlined in the decision herein.

A complete rationale must be given for all opinions and conclusions expressed. 

The examiner is advised that the Veteran is competent to report history and symptoms and that her reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, the examiner must provide a rationale for doing so.

3. Readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran and her representative should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).




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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. §§ 5109B, 7112 (West 2014).



______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs