Citation Nr: 1800869 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 16-05 303 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left leg disability, to include radiculopathy of the left lower extremity, including as due to service-connected degenerative joint disease (DJD) of the lumbar spine. 2. Entitlement to service connection for a cervical spine disability, to include arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Blowers, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from July 1976 to November 1976. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the RO in St. Petersburg, Florida, which, in pertinent part, denied service connection for the issues on appeal. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). The issue of service connection for a cervical spine disability, to include arthritis, 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 is currently diagnosed with the left leg disability of radiculopathy of the left lower extremity. 2. The radiculopathy of the left lower extremity is caused by the service-connected lumbar spine DJD. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for the left leg disability of radiculopathy of the left lower extremity, as secondary to the service-connected lumbar spine DJD, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist 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, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326(a). As the instant decision grants service connection for the left leg disability of radiculopathy of the left lower extremity, which is a complete grant as to that issue, and remands the issue of service connection for a cervical spine disability, no further discussion of VA's duties to notify and assist is necessary. Service Connection for a Left Leg Disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, radiculopathy (as an organic disease of the nervous system) is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. Service connection may also be granted for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). During the course of this appeal, the Veteran has advanced that a currently diagnosed left leg disability was either related to an in-service injury that resulted in hospitalization for back and bilateral leg pain, or was caused or aggravated by the service-connected lumbar spine DJD. The Board finds the evidence of record to be at least in equipoise on the question of whether the Veteran has a currently diagnosed left leg disability. Multiple VA treatment records reflect that the Veteran is being treated for radiculopathy related to the service-connected lumbar spine DJD. Further, at a May 2012 VA back examination, the diagnosis was radiculopathy of the right lower extremity, but not the left; however, the Board notes that the VA examiner might not have conducted an adequate examination of the left leg, as the VA examiner stated in the report that "the patient is not claiming a bilateral leg condition, he is claiming radicular pain radiating down the right leg." This is factually incorrect statement by the VA examiner, as the Veteran was seeking service connection for a bilateral leg disorder at that time. The right lower extremity radiculopathy was subsequently service connected as secondary to the service-connected lumbar spine DJD. Per a November 2016 private opinion letter, the Veteran presented with severe bilateral leg pain and lower extremity weakness, which the private examiner attributed to the Veteran's service-connected lumbar spine DJD. Unfortunately, the private examiner did not specifically diagnose the left lower leg pain and weakness as radiculopathy of the left lower extremity; however, when considering this letter, the fact the Veteran has been diagnosed with radiculopathy of the right lower extremity, and all the other evidence of record, the Board finds it likely that the pain and weakness in the left leg was due to radiculopathy, particularly in light of the fact that the left leg symptoms were identical to the right leg symptoms. The evidence does not reflect or imply a diagnosis of any other left leg disability, and the Veteran has not contended that he has a diagnosis of any other left leg disability. After a review of all the evidence of record, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the currently diagnosed radiculopathy of the left lower extremity is caused by the service-connected lumbar spine DJD. As noted above, VA received a November 2016 private opinion letter opinion that the left leg pain (radiculopathy of the left lower extremity) was secondary to the service-connected lumbar spine DJD. The opinion was based on review of the relevant evidence of record, including the service and medical records. The Veteran is currently diagnosed with a left leg disability of radiculopathy of the left lower extremity, and a private physician has opined that the currently diagnosed radiculopathy of the left lower extremity is related to the service-connected lumbar spine DJD. No opinion or other evidence to the contrary has been received. As such, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a left leg disability of radiculopathy of the left lower extremity as secondary to the service-connected lumbar spine DJD have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection has been granted on a secondary basis, there is no need to discuss entitlement to service connection on a direct, presumptive, or any other basis, as all other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (2012). ORDER Service connection for a left leg disability of radiculopathy of the left lower extremity, as secondary to the service-connected lumbar spine DJD, is granted. REMAND Service Connection for a Cervical Spine Disability VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Veteran has not received a VA cervical spine examination. Service treatment records reflect that during service the Veteran was hospitalized for nearly two weeks after injuring the back. Per a November 2017 brief submitted by the Veteran's representative, this injury occurred after the Veteran fell down some stairs. It is the Veteran's contention that, in addition to injuring the now service-connected lumbar spine, the cervical spine was also injured during the accident. As VA treatment records indicate that the Veteran has a current diagnosis of arthritis/DJD of the cervical spine, remand for a VA examination may assist in determining whether a cervical spine disability is related to the in-service accident. Outstanding Treatment Records VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand the AOJ should request that the Veteran provide any relevant outstanding private treatment records not already associated with the record. Further, the AOJ should obtain any outstanding VA treatment records for the period from January 2016. Accordingly, the issue of service connection for a cervical spine disability, to include arthritis, is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request information as to any outstanding private treatment records concerning cervical spine/neck treatment. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the Veteran's cervical spine/neck, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's cervical spine/neck, not already of record, for the period from January 2016. 3. Schedule a VA cervical spine examination. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinion: Is it at least as likely as not (50 percent or higher degree of probability) that a currently diagnosed cervical spine disability, to include arthritis, had its onset during a period of active service, including as due to the in-service accident that injured the Veteran's back and resulted in hospitalization? 4. Then, readjudicate the issue of service connection for a cervical spine disability, to include arthritis. If the benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs