Citation Nr: 1802405 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-05 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a neurological disability of the left lower extremity, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. D. Logan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2002 to April 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a May 2014 videoconference hearing before a Veterans Law Judge (VLJ) at the RO in North Little Rock, and a hearing transcript is of record. In May 2015, the Board remanded the case for further development. During the pendency of this appeal, the RO, in an August 2015 rating decision, granted service connection for degenerative arthritis of the lumbar spine (previously claimed as a lumbar spine disability). Because the Veteran was awarded a complete grant of the benefits sought with respect to his low back disability, such claim is no longer in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In October 2017, VA sent a letter to the Veteran notifying him that the VLJ who conducted the May 2014 hearing was no longer available to decide his case, and asked him whether he desired to have another hearing. To date, the Veteran has not responded to the letter. Accordingly, the undersigned VLJ assumes that he wants to proceed without another hearing and will proceed accordingly. FINDING OF FACT The evidence is in equipoise as to whether the Veteran currently has radiculopathy of the left lower extremity that is etiologically related to his service-connected low back disability. CONCLUSION OF LAW The criteria to establish service connection on a secondary basis for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pertinent Laws and Regulations Governing Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran seeks service connection for neurological disability of the left lower extremity. The medical evidence reflects that the Veteran was diagnosed with neurological impairment in the left lower extremity as left-sided sciatica. See January 2011 VA compensation examination. Thus, he meets the first element of his service connection claim, as there is evidence of a current disability. Therefore, the dispositive issue is whether Veteran's left lower extremity neuropathy is related to his service or a service-connected disability. Service treatment records (STRs) are silent for any complaints, treatments or diagnosis of left lower extremity neuropathy. Nonetheless, the Veteran's primary contention is that his disability is secondary to an already service-connected disability. Post-service treatment records indicate a July 2010 VA "PMRS" physician consultation note where the Veteran complained of left-sided back and gluteal pain with occasional radiating component to the thigh and knee. Numbness and paresthesia were noted. A magnetic resonance image (MRI) showed evidence of marked narrowing of the disc space at L5-S1 with sclerotic change involving the endplates with represented degenerative disc disease. During a January 2011 VA general medical compensation examination, the Veteran complained of low back pain, with pain radiating into both buttocks. He reported the pain was accompanied by numbness down into the left leg. A MRI showed a disc bulging to the left side with stenosis. The Veteran was diagnosed with chronic lumbar sprain with L5-S1 degenerative disc disease with a history of left-sided sciatica. The examiner noted that the Veteran's left-sided radiculopathy was related to his disc bulge. In an April 2011 VA chronic pain treatment note, the Veteran complained of chronic back pain that radiated into his left leg and was diagnosed with lumbar radiculitis. According to an October 2011 VA medical addendum, the examiner noted that although the Veteran's diagnosis of radiculopathy was based on subjective complaints, the radiculopathy was related to the Veteran's low back disability. In a June 2014 VA Disability Benefits Questionnaire (DBQ), the Veteran complained of chronic low back strain. Sensory tests were normal and the straight leg test was negative. The examiner noted that the Veteran had constant pain, but it was not due to radiculopathy. During a May 2014 videoconference hearing, the Veteran testified that he believed his neuropathy was due to his back pain and that numbness would go down his left leg to his foot, if he stood on his feet for more than 10 minutes. He stated that he had to sit in a reclining position or take medication for relief. The Veteran, as a layperson, is competent to report observable symptoms of neuropathy, such as numbness. In a June 2014 VA "PMRS" physician consultation note, the Veteran was seen for worsening chronic low back pain. The examiner noted infrequent lower limb paresthesia, with no worsening numbness or weakness. The Veteran was afforded an additional VA back compensation examination in August 2015. The Veteran complained of low back pain with muscle spasms with neuropathic-type symptoms. Guarding and muscle spasms were not present and the sensory examination was normal. Straight leg tests were negative and the examiner did not indicate radiculopathy was present. After review of all evidence of record, both lay and medical, the Board finds that service connection is warranted for radiculopathy of the left lower extremity. The evidence in support of the claim includes the Veteran's consistent, competent and credible reports of radicular pain in the left leg; the January 2011 VA examination findings; the October 2011 VA addendum; and April 2011 VA treatment notes. This favorable evidence reflects that the Veteran has left radiculopathy that is secondary to his service-connected back disability. The evidence against the Veteran's claim includes the June 2014 DBQ and August 2015 VA examination report; this evidence indicates that the Veteran does not have radiculopathy. Additional development could be undertaken so as to obtain an additional opinion; however, the Board finds that, at the very least, the medical evidence for and against the claim for service connection for radiculopathy of the left lower extremity, as secondary to a low back disability, is in equipoise. Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the appellant shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Therefore, service connection for neuropathy of the left lower extremity, secondary to a service-connected low back disability, is granted. ORDER Service connection for radiculopathy of the left lower extremity, secondary to a service-connected low back disability, is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs