Citation Nr: 18140638 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 12-02 529A DATE: October 3, 2018 ORDER Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected chronic muscle spasm of the right lumbar region, is denied. Entitlement to an effective date prior to December 23, 2009, for service-connected left hallux rigidus is denied. REMANDED Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to service-connected lumbar strain, is remanded. Entitlement to an initial compensable evaluation for service-connected left hallux rigidus is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. There is no diagnosis of left lower extremity radiculopathy in the record. 2. After a final denial for service connection for left hallux rigidus was issued in May 2007, the Veteran applied to reopen the service connection claim on December 23, 2009. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for left lower extremity radiculopathy, to include as secondary to service-connected lumbar strain, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for establishing an effective date prior to December 23, 2009, for service-connected left hallux rigidus have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.303, 3.400, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from September 1978 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2016 and October 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may be granted on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-14 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995). 1. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected lumbar strain In October 2014, the Veteran submitted a claim for service connection for bilateral lower extremity radiculopathy. He did not provide statements in support of this claim, such as describing any symptoms he experiences in both or either lower extremity. The Veteran has been provided seven VA examinations relevant to his chronic back pain, two of which are relevant to the pendency of this claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of having a current disability is satisfied when there is a disability at the time a service connection claim is filed or during pendency of that claim, regardless of whether the disability resolves prior to adjudication). The Veteran further submitted a disability benefits questionnaire filled out by a private physician in October 2015. In none of these examinations did the Veteran report radiculopathy symptoms in his left lower extremity, whereas he did consistently report symptoms including radiating pain in his right lower extremity. Likewise, the VA treatment records in the claims file do not contain complaints of symptoms consistent with left lower extremity radiculopathy, nor any formal diagnosis of such. The private treatment records the Veteran has submitted also contain no diagnosis of left lower extremity radiculopathy. As there is no competent evidence in the record of current left lower extremity radiculopathy, service connection is not warranted. 2. Entitlement to an effective date prior to December 23, 2009, for service-connected left hallux rigidus Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Where a claim has been finally adjudicated and then reopened at a later date, the effective date of any subsequent award is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002). The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Here, the Veteran initially applied for service connection for left hallux rigidus in May 2004. This claim was denied in an October 2004 rating decision that the Veteran appealed in a timely manner; the claim was eventually denied by the Board in an April 2007 decision. The Board decision became final upon issuance, so new and material evidence was required to reopen the claim. See 38 C.F.R. §§ 3.156(a), 20.1100. The Veteran applied again for service connection for left hallux rigidus in a written statement received on December 23, 2009, and the Board reopened the service connection claim in an October 2014 decision. After further evidentiary development, the RO granted service connection for left hallux rigidus in an October 2016 rating decision, effective the date of the Veteran’s petition to reopen the service connection claim. As there was a prior final denial of the Veteran’s claim for service connection for left hallux rigidus, the effective date cannot under VA laws and regulations be earlier than the claim to reopen except when clear and unmistakable error (CUE) has been found. Review of the record indicates that there is not a pending CUE claim. The Veteran’s claim to reopen was filed on December 23, 2009, which is the current effective date for his award of service connection. Thus, the request for an earlier effective date for service connection for left hallux rigidus must be denied. REASONS FOR REMAND 1. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to service-connected lumbar strain, is remanded. The Veteran was afforded a VA spine examination in October 2014, at which the examiner identified moderate radiculopathy in the right lower extremity. Shortly thereafter, the Veteran applied for service connection for bilateral lower extremity radiculopathy secondary to his service-connected chronic lumbar muscle spasm. The RO obtained an addendum opinion from the same examiner, who opined that the right lower extremity radiculopathy is more likely caused by the degenerative joint or disc disease of the spine, which has been shown not to be related to the Veteran’s service. However, the examiner did not address whether the radiculopathy is aggravated by the chronic muscle spasm. Although the examiner opined that these disabilities were not caused by the right ankle disability, the opinion does not address whether they are aggravated by that disability. Accordingly, a remand is necessary to obtain an opinion addressing all aspects of the Veteran’s claim. See 38 C.F.R. § 3.310; see also Atencio v. O’Rourke, 30 Vet. App. 74, 91 (2018) (causation and aggravation are independent concepts and should have separate findings and rationale); El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (findings of “not due to,” “not caused by” and “not related to” are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). 2. Entitlement to an initial compensable evaluation for service-connected left hallux rigidus is remanded. The Veteran reported in a July 2017 visit to a VA medical center emergency room that he saw a private podiatrist who administered cortisone injections for his hallux rigidus disability, but that the Veteran could no longer offer those injections and the podiatrist was recommending surgery. Likewise, in a September 2017 visit to a VA podiatrist, the Veteran again reported that he was treated by a private podiatrist who administered cortisone injections and performed x-rays. These records are relevant to determining the current severity of the left hallux rigidus disability, and should be obtained on remand. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The TDIU issue is intertwined with the above remanded issue and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for his left hallux rigidus that is not already of record, including any records from his private podiatrist pertaining to current symptomatology and recommendations for surgical treatment of the disability. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Schedule the Veteran for an examination with an appropriate clinician to determine whether the right lower extremity radiculopathy is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the radiculopathy is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected lumbar disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the radiculopathy prior to aggravation by the service-connected disabilities. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. DAVID GRATZ Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel