Citation Nr: 1753093 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-27 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a bilateral leg disorder, to include as secondary to service-connected spondylolisthesis. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1964 to August 1970, with service in Vietnam from March 1968 to March 1969. The Board notes that the Veteran's duration of active service listed above is a correction, reflecting an earlier period of service shown on a second DD Form 214 received in development completed subsequent to a prior Board of Veterans' Appeals (Board) remand in this case. This matter comes before the Board on appeal from a January 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefit currently sought on appeal. The Veteran was scheduled for a Board hearing before a Veterans Law Judge in March 2015, however he failed to appear. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. §§ 20.702 (d), 20.704(d) (2017). In the absence of good cause shown, this Veteran's request for a hearing is considered withdrawn, and adjudication will proceed. The claim was previously remanded in September 2015 and May 2016 for further development. The most recent remand was specifically for the purpose of obtaining an adequate medical opinion in compliance with the prior Board remand instructions. Development was also requested in regard to clarification of the Veteran's periods of active duty service. Complete service personnel records were obtained and associated with the claims file. An additional VA medical opinion was obtained as of June 2017, specifically addressing the questions raised by the Board. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's bilateral lower extremity radiculopathy is at least as likely as not caused or aggravated by his service-connected low back disability. CONCLUSION OF LAW The criteria to establish service connection for bilateral lower extremity radiculopathy have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). This appeal has been considered with respect to VA's duties to notify and assist, however, given the favorable outcome - a full grant of the benefit sought - no further explanation of how VA has fulfilled these duties is necessary at this time. Service connection may be established 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). In the present case, service connection is in effect for a number of disabilities, of which spondylolisthesis at the L5-S1 level, with degenerative disc disease, is the most relevant to the issue at hand. Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists and (2) that the current disability was either proximately caused or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). To this end, in June 2017, a VA physician reviewed the Veterans claims file in its entirety and was asked to identify each bilateral leg disorder present during the period of the claim. She ultimately determined that a diagnosis of lumbar radiculopathy affecting the bilateral lower extremities was appropriate in this case. VA opinion, June 2017. Thus, the first element necessary to establish secondary service connection is met. 38 C.F.R. § 3.310; Allen. The Veteran asserts that his diagnosed lumbar radiculopathy is secondary to his service-connected back disability. He describes constant pain in his legs and backs of his knees, reporting that a private physician told him the radiating pain was caused by his back disability. Decision Review Officer (DRO) hearing, July 2011. In the present case, there is an extensive history of treatment and examinations for the Veteran's service-connected low back disability, which also often encompassed neurological symptomatology such as the lower extremity radiculopathy now claimed by the Veteran. To briefly summarize that history, a June 2011 VA examination report notated the Veteran's subjective description of radiculopathy with a positive straight leg test, but found the Veteran's neurological examination to be otherwise normal. The examiner opined that the Veteran's bilateral radicular symptoms were less likely than not related to leg cramps in active service but at least as likely as not related to degenerative disc disease with a herniated disc because there were radicular symptoms at L-3 and L-5. Contemporaneous private treatment assessed lumbosacral neuritis and noted restricted straight leg raising producing posterior thigh pain with an impression of suspected symptomatic multiple level lumbar canal stenosis with radiculopathy in both legs. Private medical treatment, June 2011. A December 2015 VA examination diagnosed bilateral knee arthritis and pes planus, but found no radiculopathy. Due to the conflicting evidence of record as to what appropriate diagnosis or diagnoses applied to the Veteran's lower bilateral extremities, and whether any such diagnosis was attributable to the Veteran's service-connected disability, clarification was sought in the form of an additional medical opinion. Ultimately, the reviewing physician determined that the Veteran's radiculopathy of the bilateral lower extremities, claimed as a bilateral leg disorder, is more specifically identified as lumbar L4-L5 degenerative disc disease/degenerative joint disease and moderate spinal canal stenosis with radiculopathy to both legs, and that there was a 50 percent or better probability that the disorder was caused or worsened by the Veteran's service-connected lumbar spondylolisthesis. VA medical opinion, June 2017. As such, the opining physician determined that the Veteran's current bilateral lower extremity radiculopathy is secondary to his service-connected lumbar spine disability. Id. On this basis, service connection is warranted. 38 C.F.R. § 3.310; Allen. ORDER Service connection for bilateral lower extremity radiculopathy, as secondary to the service-connected low back disability, is granted. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs