Citation Nr: 18141287 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 12-21 126 DATE: October 10, 2018 ORDER Service connection for a respiratory disorder, to include bronchitis and pneumonia, is granted. Service connection for left lower extremity radiculopathy, is granted. Service connection for an acquired psychiatric disorder, claimed as depression, is granted. Service connection for a hip disorder other than radiculopathy, is denied. REMANDED An effective date of January 7, 2013 for the grant of service connection for right lower extremity radiculopathy is remanded. An initial rating higher than 10 percent for right lower extremity radiculopathy is remanded.   FINDINGS OF FACT 1. The Veteran’s chronic bronchitis began during active duty service. 2. The Veteran’s left lower extremity radiculopathy is causally related to his service-connected low back disability. 3. The Veteran’s depression is causally related to his service-connected low back disability. 4. A hip pain disorder (other than lumbar radiculopathy) is not related to service or any incident thereof. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic bronchitis have been met. 38 U.S.C. §§ 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for left lower extremity radiculopathy, as secondary to service-connected low back injury, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for an acquired psychiatric disorder, to include depression/major depressive disorder, as secondary to service-connected low back injury, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for hip pain/a hip pain disorder other than lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1997 to January 1999; and from January 2003 to August 2003. The case is on appeal from rating decisions dated in July 2011, April 2014, and May 2016. The July 2011 rating decision purported to reopen, and then again deny, claims of service connection for hip, low back, and respiratory disorders. In December 2013, the Board reopened the hip, low back, and respiratory disorder claims; granted service connection for a low back disorder; and then remanded the other two claims for further development. The April 2014 rating decision denied service connection for depression and left and right lower extremity radiculopathy. In the May 2016 rating decision, the RO granted service connection for right lower extremity radiculopathy with a rating of 10 percent effective February 26, 2016; thus resolving the appeal for service connection. However, the Veteran has appealed the assigned effective date and rating. The Board notes that the Veteran also appears to have perfected an appeal regarding the length/duration of a back related temporary total rating (see June 2017 notice of disagreement and September 2017 Form 9); however, that issue has not been certified to the Board, and there is no summary brief on the matter from the Veteran’s attorney. The Board’s review of the claims file reveals that the RO may still be taking action on this matter. As such, the Board will not accept jurisdiction over this issue at this time, but it will be the subject of a subsequent Board decision, if in order. In July 2018, the Veteran’s attorney submitted additional evidence and argument regarding the issues of service connection for hip, psychiatric, left lower extremity radiculopathy, and respiratory disorders; and the effective date and initially assigned rating for service-connected right lower extremity radiculopathy; along with a waiver of agency of original jurisdiction review. As such, and as there is no indication that fellow development is needed, remand of the claims decided below is not warranted. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. A veteran is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). If a particular disability is not noted at entry, then the presumption of soundness may be rebutted by clear and unmistakable (obvious or manifest) evidence that the injury or disease existed prior thereto and was not aggravated by such service. Such an evidentiary standard is an onerous one and the result must be undebatable. See, e.g., Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Vanerson v. West, 12 Vet. App. 254, 258 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Service connection for a respiratory disorder, to include bronchitis and pneumonia The Veteran seeks service connection for a respiratory disorder, claimed as chronic bronchitis. See Veteran’s claims for service connection dated in February 1999 and August 2010. He avers that his bronchitis began during active duty service, and that he has suffered from recurrent bronchitis since then. In a statement dated in August 2010 he added: “my bronchitis turns into walking pneumonia very easily.” Service treatment records (STRs) show that the Veteran’s April 1996 entrance examination of the lungs/chest was normal; and there is no medical evidence dated prior to the April 1996 enlistment examination of any respiratory disorder. During service the Veteran reported to the emergency room with complaints of difficulty breathing, and was diagnosed with bronchitis. See STRs dated in January 1998. Thereafter, he was treated during service for recurrent bouts of bronchitis, and for pneumonia. The Veteran did not report a pre-service history of asthma or any other respiratory at any time during service. After service, the Veteran allegedly informed VA that he had had asthma as a child. See VA medical record dated in August 2006. But see May 2011 VA examination report, noting “He denies any HX of Asthma prior to 1997.” In any event there, again, is no medical record of asthma, much less bronchitis (or pneumonia), prior to service; and, absent said, the Board is unable to find that the Veteran’s bronchitis clearly and unmistakably preexisted service. Therefore, the Board finds that the Veteran is presumed to have been in sound condition when he entered service with respect to claimed bronchitis. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). As for the merits of the claim for service connection, the earliest lay or medical record of bronchitis is found in the STRS, which chronicle treatment for bronchitis since January 1998. See, e.g., STRs dated in September 1998, which advise of “1 yr h/o intermittent bronchitis (w/ 2 episodes of pneumonia).” Additionally, the Veteran sought treatment for difficulty breathing immediately after his separation from service (see Emergency Room dated in February 1999, which reflect a diagnosis of and show treatment for bronchitis); and VA medical records show a current diagnosis of bronchitis. See, e.g., VA medical records dated in February 2003; and the report of pulmonary function testing done by VA in April 2011, which returned a diagnosis of “chronic bronchitis.” In May 2011 the Veteran was afforded a VA respiratory examination, which was done by a nurse practitioner. The diagnosis was “moderately severe chronic bronchitis by PFT at this time.” According to the examiner, the Veteran’s “current chronic bronchitis” is not related to service because “his in service treatment for acute bronchitis/pneumonia resolved as he returned to full duty.” This opinion is based on an inaccurate factual premise, as STRs clearly chronicle recurrent bouts of bronchitis after the initial episode during service. See also Emergency Room records dated immediately after the Veteran’s separation from service, which reflect a diagnosis of and show treatment for bronchitis. In short, the Board finds that the Veteran was sound on entry into service with regard to the issue of a respiratory disorder, as a respiratory disorder was not detected, noted, or reported during the Veteran’s enlistment examination; and there is no pre-service medical diagnosis of a respiratory disorder. Moreover, competent medical evidence confirms that the Veteran was treated on more than one occasion for bronchitis during service, and promptly thereafter; and pulmonary function testing confirms a current diagnosis of chronic bronchitis. As the presumption of soundness was not rebutted and there is no material dispute that the current diagnosis is related to the in-service symptoms, service connection is warranted. See Simmons v. Wilkie, No. 16-3039, 2018 U.S. App. Vet. Claims LEXIS 1265, at *14 (Vet. App. Sep. 20, 2018). Thus, in consideration of the evidence, and when resolving reasonable doubt in the Veteran’s favor, the claim is granted. See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for left lower extremity radiculopathy The Veteran seeks service connection for left lower extremity neuropathy/radiculopathy, which he contends is secondary to his service-connected low back disorder. Service treatment records (STRs) reflect a diagnosis of degenerative disc disease of the lumbar spine, and chronicle complaints of left lower extremity pain and numbness. See, e.g., STRs dated in February 1998, which inform of a 4 month history of “pain and numbness in bilateral lower extremities right greater than left,” provisionally diagnosed as “neuropathy, unknown etiology bilateral lower extremity.” See also STRs dated in April 1998, which contain the diagnosis: “? per. neuropathy [bilateral] ? 2° to lower back/radiculopathy.” Moreover, VA medical records dating from 2012 show “lumbar radiculopathy” on the Veteran’s Active Problem list (since 2011), and VA medical records dated in July 2014 document the Veteran as complaining of “chronic low back... also with bilat LE tingling/shooting pain L>R, much worse in the last 6 months.” On VA peripheral nerves examination in March 2014, the examiner said there was “insufficient clinical evidence at the present time to warrant a diagnosis of radiculopathy of the Veteran’s bilateral lower extremities.” See also March 2016 VA peripheral nerves examination report, in which the examiner averred “he does not have objective findings to indicate a radiculopathy, neuropathy or other nerve condition in the L lower extremity.” However, medical records dated after the March 2016 VA examination advise of “left lumbar radiculopathy.” See, e.g., VA medical records dating from April 2016, and May 30, 2017 private Operative/Procedure Report. In consideration of all of the evidence of record, and when resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for left lower extremity radiculopathy secondary to service-connected lumbar spine DDD is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. 3. Service connection for an acquired psychiatric disorder, claimed as depression The Veteran seeks service connection for depression, which he asserts is secondary to his service-connected low back disorder. He was not diagnosed with or treated for a psychiatric disorder during service, however, VA medical records dating from at least December 2011 reflect a clinical diagnosis of depression. See, e.g., VA Psychotherapy records authored by VA psychiatrist G.W. in December 2014 and February 2015, which reflect a “DSM-5” diagnosis of, and show treatment for, recurrent major depressive disorder. On VA examination in March 2014, the diagnosis was “Unspecified Depressive Disorder.” In the ensuing opinion (which was provided by another examiner in April 2014), the examiner stated that there “is NO evidence to suggest that the Veteran’s depression is at least as likely as not (50 percent or greater probability) proximately due to or the result of his back condition.” The examiner indicated that the Veteran’s depression was a result of his recurrent alcohol use, and explained that the Veteran had “a history of a history of heavy alcohol use over the years that has been associated with multiple situational stressors [specifically] “a painful divorce with subsequent reported suicidal ideation, multiple legal issues, and vocational challenges that have likely impacted his mood.” However, the Board observes that the examiner did not mention the Veteran’s low back disorder/chronic low back pain in her rationale, which is significant since mental health records note “he has been using [alcohol] to self medicate a severe back pain that he hurt while in the military.” See, e.g., VA mental health records dating from January to May 2012, and in December 2014. In February 2016, the Veteran was afforded another VA mental disorders examination. In the ensuing report the examiner averred “depression is not diagnosed at this time” and so did not opine as to service connection. However, VA medical records prior to and since the February 2016 examination refer a clinical diagnosis of, and show treatment for, major depressive disorder. See e.g., VA medical records dating from October and November 2015. See also McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative). Indeed, the Veteran recently underwent another psychological evaluation. See June 2018 private psychiatric evaluation report. The physician (a psychologist/ neuropsychologist) reported that he reviewed the claims file. He also administered a battery of psychological tests, and reported the results in his report. The diagnosis was major depression. The physician then averred “the current data, along with the continuity of previous test finding and the c-file, all support a theory of causal connection between his chronic low back pain and his chronic depression;” and reiterated that the Veteran’s “chronic depression is proximally due to the relentless back pain disorder.” The Board finds this opinion, which was proffered after review of the claims file and includes an accurate synopsis of the medical evidence and facts in this case, to be highly probative evidence in favor of the claim. The Board accordingly finds that the evidence is at least in equipoise as to the nexus element of the claim. When resolving reasonable doubt in the Veteran’s favor, the Board finds that his depression is caused by his service-connected low back disability. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 3.310. Thus, service connection for depression is warranted. 4. Service connection for a hip disorder other than radiculopathy The Veteran seeks service connection for hip pain/a hip disorder. See Veteran’s claims for service connection dated in February 1999 and August 2010. STRs advise of hip pain, however, radiology testing during service was negative, and the Veteran was not diagnosed with an intrinsic hip disorder during service. Rather, competent medical evidence informs that the in-service bilateral lower extremity pain (including hip pain) evolved from his service-connected lumbar spine disorder (see January 2018 VA examiner’s opinion); and the Veteran has already been service-connected for bilateral lower extremity lumbar radiculopathy. As for a hip pain disorder other than radiculopathy, the Board observes that the Veteran has been diagnosed with an intrinsic hip disorder (osteoarthritis). See January 2018 VA examination report. However, according to the January 2018 VA examiner, the Veteran’s bilateral hip osteoarthritis is not related to service (including the in-service hip pain) but is more likely age related. The examiner pointed out that there is no radiologic evidence of arthritis until 2011; that the arthritis is symmetrical (affecting both hips) and mild; and that there is no radiographic evidence of prior hip joint injury or trauma that would be consistent with a post traumatic arthritis condition or residuals thereof; and averred that “these findings are radiographically consistent with age related changes.” This is negative against the claim, and there is no competent medical evidence to the contrary. To the extent that the Veteran’s statements are offered as a nexus opinion to service, that is, an association between his present bilateral hip osteoarthritis and his last military service some 8 years prior to diagnosis, a lay opinion is limited to inferences which are rationally based on a claimant’s perception and does not require specialized knowledge; and no factual foundation has been established to show that the Veteran is qualified through knowledge, education, training, or experience to offer a medical diagnosis or opinion regarding the initial presentation of his bilateral hip osteoarthritis; particularly where, as here, testing during service was negative. The Board therefore finds that the Veteran’s opinion that his bilateral hip osteoarthritis began during service is beyond the Veteran’s lay capacity and is of no probative weight. As for the Veteran’s contention that his hips hurt because his hips are not even because he has one leg longer than the other (see February 1999 statement from Veteran), he is not service-connected for leg length disorder (see February 2000 rating decision, which denied service connection for leg length difference), so service connection for hip pain/osteoarthritis secondary to leg length disorder is not warranted. The weight of the evidence is therefore against the claim under the advanced theories of entitlement. Service connection for an intrinsic hip disorder is therefore not warranted and the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. An effective date of January 7, 2013 for the grant of service connection for right lower extremity radiculopathy, is remanded. 2. An initial rating higher than 10 percent for right lower extremity radiculopathy, is remanded. In May 2016, the RO granted service connection for right lower extremity radiculopathy with a rating of 10 percent effective February 26, 2016. The Veteran is requesting an earlier effective date of January 7, 2013 (the date of claim) for the grant of service connection for right lower extremity radiculopathy; and an initial rating of in excess of 20 percent for the disability. Service treatment records (STRs) chronicle a history of paresthesia involving the lower extremities. See, e.g., STRs dated in June and July 1998. On VA examination in April 2011, the diagnosis was “chronic thoracolumbar strain without evidence of radiculopathy by EMG;” however, it appears that this assessment the relied upon EMG that did not include testing of the right lower extremity. On the other hand, a May 2011 MRI of the lumbar spine found degenerative disc and facet changes at L4-L5 and L5-S1, worse at L5-S1; moderate to severe bilateral foraminal narrowing at L5-S1, and annular fissure at L4-L5; however, the radiologist did not state whether there was radiculopathy. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). In this regard, the Board notes that “lumbar radiculopathy” is among the disorders in the Veteran’s 2012 Active Problems list (see also VA physical therapy records in July 2011, which describe the Veteran as presenting with low back pain and bilateral lower extremity radiculopathy); however, a May 2014 VA examiner averred as follows: the Veteran’s clinical examination was not diagnostic of radiculopathy of his lower extremities and his EMG study did not show electrodiagnostic evidence of radiculopathy. Therefore, there is insufficient clinical evidence at the present time to warrant a diagnosis of radiculopathy of the veteran’s bilateral lower extremities. On EMG testing in February 2016, the diagnosis was abnormal electrodiagnostic study of the right lower extremity; and positive electrodiagnostic evidence of right S1 radiculopathy. In order to ascertain whether the evidence prior to February 2016 supports a diagnosis of right lower extremity radiculopathy, remand for clarification is warranted. Colvin, 1 Vet. App. 171. The Board’s review of the initial rating of the Veteran’s right lower extremity radiculopathy is postponed pending resolution of the inextricably intertwined appeal for an earlier effective date for service connection. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Refer the matter to an appropriate VA examination, such as a neurologist. The examiner should carefully review the claims file, and then advise as to whether the evidence supports a diagnosis of right lower extremity radiculopathy prior to February 26, 2016. (a.) If so, provide the date; and advise as to the severity of the right lower extremity radiculopathy from that date. (b.) If the evidence does support a diagnosis of right lower extremity radiculopathy prior to February 26, 2016, explain why this is so. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Childers, Counsel