Citation Nr: 18145494 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-33 260 DATE: October 30, 2018 ORDER Entitlement to service connection for radiculopathy, right lower extremity is denied. Entitlement to service connection for radiculopathy, left lower extremity is denied. REMANDED Entitlement to service connection for a kidney disorder is remanded. FINDINGS OF FACT 1. The Veteran has not been clinically diagnosed with radiculopathy, right lower extremity. 2. The Veteran has not been clinically diagnosed with radiculopathy, left lower extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for radiculopathy, right lower extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for entitlement to service connection for radiculopathy, left lower extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Navy from December 1967 to September 1977 and from June 1982 to January 1986. In a July 2017 correspondence, the Veteran, through his representative, withdrew the request for a Board videoconference hearing. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for radiculopathy, right lower extremity and radiculopathy, left lower extremity. Initially, the Board observes that the Veteran’s service records are silent as to any treatment for or complaints of radiculopathy. The Board further observes that the Veteran has received both VA and private treatment for a variety of medical problems, including his service-connected low back disorder and right knee disorder. However, these reports repeatedly fail to document complaints of radiculopathy and no clinical diagnosis has been established. The Veteran received a VA back examination in December 2013. The Veteran was diagnosed with a lumbosacral strain. Notably, the examiner reported that the Veteran does not have any radicular pain or any other signs or symptoms of radiculopathy. Importantly, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). The evidence of a current diagnosis of radiculopathy of the right and left lower extremities is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability such as radiculopathy requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent to relate such to his service-connected low back. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Highlighting this is the fact that doctors have identified neurological symptoms of the lower extremities, but associate such with nonservice-connected diabetes mellitus. In light of the absence of any competent evidence of clinically diagnosed radiculopathy of the right and/or left lower extremity, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for a kidney disorder is remanded. Service records indicate that the Veteran was treated in November 1976 and April 1977 for right flank renal pain. The provisional diagnosis was renal calculus, but apparently no kidney stones were found in his strained urine. The Veteran has received both VA and private treatment for kidney stones. It appears that the Veteran was most recently treated for kidney stones in December 2016. These reports suggest that the Veteran has a history of treatment for kidney stones. The Veteran has not received VA examination for his claimed kidney disorder. As discussed above, he has been diagnosed with kidney stones and was treated for renal pain while in service. A connection is possible. Therefore, a VA examination for the Veteran’s claimed kidney disorder is required. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Veteran has received VA and private treatment for his claimed kidney disorder. However, the most recent and pertinent treatment records are from approximately December 2016. Thus, it would be prudent for VA to obtain all relevant and outstanding treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Contact the Veteran and request properly executed, separate VA form 21-4142’s, Authorization and Consent to Release Information to the Department of Veterans Affairs, for any private care providers who have treated him since July December 2016 for any kidney problems. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Associate with the claims file all updated VA treatment records from the VA medical center at Chillicothe, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period of December 2016 to the present. 3. Schedule the Veteran for a VA kidney examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all current diagnosis related to the kidneys, and for each such, must opine as to whether it is at least as likely as not related to military service. In service reports of flank pain and the Veteran’s lay statements regarding symptoms during and after service must be considered in rendering the requested opinion. 4. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel