Citation Nr: 1754949 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-03 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right leg pain, claimed as due to right-sided sciatica secondary to service-connected spinal disability. 2. Entitlement to service connection for right leg pain, claimed as due to right-sided sciatica secondary to service-connected spinal disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active service from October 1956 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA) which determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for right leg pain. In January 2014, the RO reopened the claim of service connection for right leg pain and denied service connection for right leg sciatica. In July 2017, the Board remanded this appeal for the purpose of scheduling a Board videoconference hearing for the Veteran. In September 2017, the Veteran testified before the undersigned at a Board videoconference hearing. A transcript of the hearing is of record. As to the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for right leg pain, the Board is required to consider the question of whether new and material evidence has been received to reopen the claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A January 2005 RO rating decision denied the Veteran's claim of entitlement to service connection for "right leg pain." The Veteran did not appeal the January 2005 denial. No new and material evidence was submitted within a year following the January 2005 denial of the claim. 38 C.F.R. § 3.156(b). The January 2005 RO denial is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302. A May 2007 RO rating decision (sent to the Veteran in June 2007) denied the Veteran's claim of entitlement to service connection for "spinal nerve damage." The Board finds that this May 2007 rating decision was effectively a denial encompassing a claim of entitlement to service connection for right leg pain. Significantly, the Board finds that a May 2007 medical report received by VA in June 2007 constitutes new and material evidence on the matter of entitlement to service connection for right leg pain. Consequently, to the extent that the May 2007 rating decision was a denial of service connection for right leg pain, that denial did not become final due to the receipt of the new and material evidence of the May 2007 medical report within a year of the issuance of that decision. As no final decision resolving the claim of service connection for right leg pain has been issued following the May 2007 RO rating decision, the September 2006 claim that led to the May 2007 adjudication (as identified in the May 2007 rating decision) is the claim that gives rise to this appeal before the Board. The January 2005 RO final decision denying service connection for right leg pain was based upon a findings that "[t]he evidence does not show that right leg pain is related to the service-connected condition." Evidence of record at that time did not clearly establish a diagnostic pathology responsible for the Veteran's right leg symptoms, characterized by the RO only as "right leg pain" at that time. Notably, at the time of the January 2005 RO final decision, the Veteran was not yet service connected for "thoracolumbar strain with degenerative changes," but service connection for this back disability was subsequently established in a May 2007 RO rating decision. The Board finds that new and material evidence has been presented sufficient to reopen the claim, including: the June 2007 submission of a May 2007 private medical report with a doctor's clinical impression stating: "Patient appears to have clinical examination consistent with a meralgia paresthetica or lateral femoral cutaneous neuritis. This is ordinarily a result of pressure on the nerve at the anterior superior iliac spine ...," and "Patient also appears to have sciatica. Here again, this could very well be due to history of sitting on a hard surface for long periods of time in the past or at least this could have aggravated or initiated the process leading to this ...." These pertinent clinical medical impressions were not of record at the time of the prior final denial, and they tend to indicate that the Veteran has diagnosed pathologies of the right leg that may be medically attributable to his in-service duties. (The Veteran's presentation at his September 2017 Board hearing directed attention to the fact that his duties in service featured sitting on a hard surface for long periods as "a tail gunner in a B-52," with his representative explaining "they're pretty hard, and the G forces that you can experience are pretty extreme." The Veteran described: "Regular day, training missions were about eight hours; flying out of Guam to Vietnam was like 12 hours. Going over Hanoi, the longest mission we had was 16 and a half hours.") The Board finds that new and material evidence has been submitted following the prior final denial of service connection for a disability manifested by right leg discomfort / pain. Accordingly, the Board has reopened the claim for consideration on the merits at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT It is reasonably shown that the Veteran has been medically diagnosed with sciatica and meralgia paresthetica or lateral femoral cutaneous neuritis that is etiologically attributable to his military service featuring prolonged sitting on hard surfaces as a tail gunner in a B-52. CONCLUSION OF LAW Service connection is warranted for a right leg disability diagnosed as sciatica with meralgia paresthetica or lateral femoral cutaneous neuritis. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disease diagnosed after discharge may still be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Secondary service connection may be established for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service connected disability; and (3) that the current disability was either (a) caused, or (b) aggravated by the service connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's service records, featuring his DD Form 214, document that his primary specialty was "Defensive Aerial Gunner / Technician" in the U.S. Air Force. The Veteran's presentation at his September 2017 Board hearing directed attention to the fact that his duties in service featured sitting on a hard surface for long periods as "a tail gunner in a B-52," with his representative explaining "they're pretty hard, and the G forces that you can experience are pretty extreme." The Veteran described: "Regular day, training missions were about eight hours; flying out of Guam to Vietnam was like 12 hours. Going over Hanoi, the longest mission we had was 16 and a half hours." The Board finds that these details of the Veteran's service are credibly shown. The Veteran has previously established entitlement to service connection for his back disability of "thoracolumbar strain with degenerative changes," currently rated 40 percent disabling. An October 2009 VA examination report describes "severe back pain." The October 2009 VA examination report noted significant weakness (active movement against gravity, but not any further resistance) for right hip flexion, right hip extension, right knee flexion, right knee extension, right ankle dorsiflexion, right ankle plantar flexion, and right great toe extension. The VA examiner noted that diagnostic imaging revealed "facet joint arthritis at L4-5 and Lg-S1 with minimal n[a]rrowing of the neural foramina bilaterally," with "[n]o evidence of disk herniation or spinal cord compression...." The VA examiner did not directly address the question of whether the Veteran has a specific diagnosis for impairment of the right leg, such as sciatica. Significantly, a May 2007 private medical report (during the pendency of the claim on appeal, as explained in the introduction) presents a doctor's clinical impression stating: "Patient appears to have clinical examination consistent with a meralgia paresthetica or lateral femoral cutaneous neuritis. This is ordinarily of pressure on the nerve at the anterior superior iliac spine." The private doctor also found that the Veteran "appears to have sciatica. Here again, this could very well be due to history of sitting on a hard surface for long periods of time in the past or at least this could have aggravated or initiated the process leading to this ...." The Board notes, as has the RO in its own adjudication of this matter, that the objective findings from clinical testing and diagnostic imaging presented in the May 2007 private report do not clearly identify a particular significant abnormality. However, the Board finds that the May 2007 report reflects that the authoring neurologist completed that testing and considered the information in preparing his final expert impressions. Accordingly, the Board accepts the neurologist's final impressions as probative and informed by the pertinent clinical data, and the Board finds no reason to discount the significance of the May 2007 private neurologist's impressions that the Veteran appears to have "meralgia paresthetica or lateral femoral cutaneous neuritis," and also "sciatica." The May 2007 neurologist provides reasons for the clinical impression, citing specific examination findings and credible symptom complaints. The Board finds that the evidence is at least in a state of equipoise with regard to the question of whether the Veteran has a diagnosed disability associated with his reports of right leg discomfort / pain. The Board resolves reasonable doubt in the Veteran's favor and finds that this requirement for an award of service connection has been satisfied in this case. The May 2007 private neurologist's report discusses the possible etiology of the "meralgia paresthetica or lateral femoral cutaneous neuritis," and also the sciatica. Although the discussion of the etiology is not definitive or equivocally clear, the Board finds that the information in provides is significantly supportive of the Veteran's claim in this case. The private neurologist explains that that "meralgia paresthetica or lateral femoral cutaneous neuritis" is "ordinarily a result of pressure on the nerve at the anterior superior iliac spine," and that "[t]he question whether it is related to his former occupational activity cannot be solved by this test, nor can it be definitively answered by other means though it certainly sounds reasonable that he might from long periods of sitting, compress the nerve as it crosses the anterior superior iliac spine." The private neurologist further discusses that the Veteran "appears to have sciatica" which "could very well be due to history of sitting on a hard surface for long periods of time in the past or at least this could have aggravated or initiated the process leading to this but it is impossible by means of this test or any other to demonstrate this conclusively." The private neurologist states that he is here "merely using reasonable judgment to come to this conclusion without necessity of being able to prove it." The private neurologist concludes: "I am not able to advance the question to a definite answer but I would say that it at least sounds physiologically reasonable that his history might be contributing factors to both of these problems." The Board finds no medical evidence of record significantly weighing against finding that the Veteran's neurological impairments of the right leg are (a) etiologically linked to his military service as a tail gunner in a B-52 and/or (b) etiologically linked to his service-connected back / thoracolumbar spine disability. The Board finds that the May 2007 private neurologist's opinion tends to support finding that the right leg impairment may be linked to the Veteran's service. Therefore, the Board must consider the question of whether the May 2007 private neurologist's opinion is sufficiently probative and non-speculative to adequately resolve the claim or, alternatively, a remand for development of a new medical opinion is necessary. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right leg neurological impairments are sufficiently shown to be related to his particular duties during active duty service. The Board acknowledges that the May 2007 medical opinion repeatedly uses equivocal language that does not clearly and expressly state that it is at least as likely as not that an etiological link to service exists; the author appeared most concerned with expressing that he cannot "demonstrate" the etiology of the disabilities "conclusively," and that his analysis of the etiology was "merely using reasonable judgment to come to this conclusion without necessity of being able to prove it." Conclusively demonstrated proof is not needed for the Veteran to prevail in this appeal. The Board finds that the May 2007 medical opinion can be reasonably read as explaining reasons to find that the Veteran's right leg neurological impairments, including sciatica, can be medically attributed to his particular in-service duties (featuring prolonged sitting on hard surfaces as a tail gunner in a B-52) which have already been established as having caused a service-connected degenerative back disability. No alternative nonservice-connected etiology for the right leg disability is significantly indicated by the record. The Board finds that, considering the evidence in the light most favorable to the Veteran, the May 2007 medical opinion can be reasonably interpreted as adequately indicating that the Veteran's right leg neurological impairments can be etiologically linked to his military service with resolution of reasonable doubt in the Veteran's favor. In conclusion, the Board finds that the evidence is at least in equipoise with regard to indicating that that the Veteran has medically diagnosed disabilities of the right leg, including sciatica, that are reasonably etiologically attributable to his particular duties of military service. Accordingly, the Board finds that the evidence sufficiently supports a grant of service connection for right leg pain, to include right-sided sciatica, in this case. ORDER New and material evidence having been received, the claim of entitlement to service connection for a disability manifested by pain / discomfort / neurological impairment of the right leg is reopened. Service connection for a right leg disability diagnosed as sciatica with meralgia paresthetica or lateral femoral cutaneous neuritis is granted, subject to the laws and regulations governing the payment of monetary benefits. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs