Citation Nr: 1756530 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-36 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a neurological disorder of the left lower extremity, including as secondary to service-connected lumbar herniated disc and spondylosis. 2. Entitlement to a disability rating in excess of 20 percent for lumbar herniated disc and spondylosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION The Veteran served on active military duty from January 1978 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) from November 2010 and May 2011 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In a February 2013 rating decision, the RO granted a temporary 100 percent disability evaluation, effective March 16, 2010, to July 31, 2010, due to convalescence from surgery. The Veteran presented testimony before the undersigned Veterans Law Judge during a May 2014 hearing at the RO. A transcript of the hearing is of record. The RO in an October 2015 rating decision granted service connection for impairment of the sciatic nerve of the right lower extremity. As a result, only the issue of service connection for the a neurological disorder of the left lower extremity remains on appeal. The Board has recharacterized the issue. The issue of entitlement to a disability rating in excess of 20 percent for lumbar herniated disc and spondylosis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has a current lower left extremity radiculopathy disorder. 2. The current lower left extremity radiculopathy is proximately due to the service-connected lumbar herniated disc and spondylosis disability. CONCLUSION OF LAW The criteria for service connection for lower left extremity radiculopathy, as secondary to the service-connected lumbar herniated disc and spondylosis disability, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted to any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Furthermore, secondary service connection may be granted for aggravation of a disease or injury by a service-connected disability. Id. To establish secondary service connection based on aggravation, the evidence must show an increase in severity of a disease or injury beyond a medically established baseline which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected condition. 38 C.F.R. § 3.310 (b). The Veteran asserts that service connection is warranted for a lower left extremity disorder. Specifically, the Veteran asserted during his May 2014 hearing that a practitioner had told him that his bilateral peripheral neuropathy could be etiologically related to his lumbar spine disability because his symptoms had improved with a series of injections that he had related to his back. At his hearing, the Veteran also noted that he has pain that radiates to his feet from his back. An examination of the Veteran from June 1992 noted that the Veteran exhibited sensory dermatome loss to pinprick testing that was suggestive of left L4 dermatome. The examiner stated that they planned to include an EMG and nerve conduction velocity test to evaluate the Veteran's neuromuscular function and that the Veteran's symptoms seemed consistent with a lumbar strain. The Veteran underwent a lumbar operation in March 2010. The preoperative diagnosis was lumbar spondylosis and stenosis with right greater than left L5 radiculopathy and cauda equina compression. The postoperative diagnosis was largely unchanged with the addition of a chronic calcified L4-5 porcelain disk. The medical evidence from March 2010 noted that a lumbar MRI of December 2009 revealed evidence of degenerative discs at L5-S1 with lateral recess, foraminal encroachment, and intraforaminal compromise of the L5 roots bilaterally. A March 2010 discharge summary noted that the Veteran's principal diagnosis was lumbar spondylosis and stenosis with right greater than left L5 radiculopathy while noting that his secondary diagnosis included diabetes mellitus type II with hypersensitivity in the Veteran's right foot. A March 2010 lumbar exam noted a positive straight leg raising on the right and a positive straight leg raising on the left. Based on a review of the Veteran's medical records and a June 2015 remand, an October 2015 VA examiner found that the Veteran suffered from right, not left, radiculopathy caused by his service-connected lumbar herniated disc and spondylosis in addition to bilateral diabetic polyneuropathy. The Board notes that although fluctuating, there have been definitive findings of neurological deficit over the years involving both lower extremities, to include diminished and/or absent reflexes, complaints of radiating pain, and positive straight leg raising, etc. In June 1992, it was determined that the Veteran suffered sensory loss as shown by a pinprick test. In March 2010, it was noted that an MRI from December 2009 showed foraminal encroachment and intraforaminal compromise of the L5 roots bilaterally. A March 2010 discharge summary noted the Veteran's principal diagnosis as being right greater than left L5 radiculopathy. Furthermore, a March 2010 lumbar exam noted a positive straight leg raise test bilaterally. The Board thus finds that the overall evidence indicates objective evidence of chronic nerve root involvement with chronic radiating pain involving both lower extremities, reduced reflexes, and positive straight leg raising, etc. Accordingly, the benefit of the doubt is thus resolved in favor of the Veteran, and service connection for left lower extremity radiculopathy is granted. ORDER Service connection for left lower extremity radiculopathy, as secondary to service-connected lumbar herniated disc and spondylosis, is granted. REMAND Regarding the Veteran's claim for a higher rating for his service-connected lumbar herniated disc and spondylosis, a new VA examination must be provided that comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Correia mandates that orthopedic examinations include the testing described in 38 C.F.R. § 4.59 (2017), or an explanation as to why such testing is not warranted or not possible. Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran's own statements. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Further, the most recent VA treatment records associated with the claims file are dated in September 2015. On remand, the AOJ should obtain the Veteran's updated VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA treatment records, dated from September 2015 forward. 2. Upon completion of the foregoing, schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected low back disability. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaire (DBQ) should be filled out. In the examination report, the examiner must include all of the following: A. Active range of motion testing results. B. Passive range of motion testing results. C. Weightbearing range of motion testing results. D. Non-weightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 3. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs