Citation Nr: 18148854 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 17-53 085 DATE: November 8, 2018 ORDER Entitlement to service connection for left lower extremity radiculopathy is denied. Entitlement to an evaluation in excess of 10 percent for a chronic lumbosacral strain is denied. FINDINGS OF FACT 1. The most probative evidence is against a finding that the Veteran currently has a radiculopathy disability. 2. The most probative evidence is against a finding that the Veteran’s service-connected chronic lumbosacral strain disability has caused limitation of forward flexion limited to not greater than 60 degrees, or a combined range of motion not greater than 120 degrees, or guarding or muscle spasm severe enough to cause abnormal spinal contour or abnormal gait. CONCLUSIONS OF LAW 1. The criteria for service connection for lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to an evaluation in excess of 10 percent for a chronic lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242, 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from February 1978 to January 1981 and from September 1984 to August 1992. The Board sincerely thanks him for his service to his country. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans’ Affairs (VA) Regional Office (RO). An August 1992 rating decision granted the Veteran’s claim of service connection for a lumbosacral strain rated at 10 percent. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b). Secondary service connection may be established for a disability that is proximately due to, or the result of, or aggravated by a service connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service connected disability; and (3) that the current disability was either (a) caused, or (b) aggravated by the service connected disability. See 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Increased Rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 – 5243. For a lumbosacral strain disability, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. 4.71a, Diagnostic Code 5237, 5242 (2017). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 1. Entitlement to service connection for left lower extremity radiculopathy The Veteran first reported radiculopathy of his left leg secondary to his lumbar disability in his June 2016 claim. There is no evidence in the Veteran’s Service Treatment Record (STRs) that he experienced radiculopathy following his initial back injury. His 1994 VA Exam contains a diagnosis of lumbosacral strain with no evidence of radiculitis. In August 2016, a VA examiner found that there was no pathology for radiculopathy, and therefore no diagnosis. The examiner reviewed the Veteran’s claims file and treatment records and found it was less likely than not (less than 50% probability) that the radiculopathy symptoms claimed were proximately due to the Veteran’s service connected lumbosacral strain. The examiner also found that the Veteran exhibited no signs of radicular pain during a physical exam, including during a straight leg raise test on each leg. The Veteran was in a motor vehicle accident in March 2017 and presented to the emergency room. In a follow-up visit to his primary care physician, the Veteran reported aggravation of back pain but denied “sharp pain [or] sciatica.” The record from that visit notes normal curvature of the thoracolumbar spine, full range of motion in hips, and no pain on single leg raise. The Board acknowledges the Veteran’s October 2017 Form 9 in which he describes sciatic pain in his lower back that travels to his left leg. Although the Veteran is competent to report symptoms such as pain, he has not been shown to have the experience, training, or education necessary to make a diagnosis or an etiology opinion as to radiculopathy. The threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually has the disability for which service connection is sought. In the absence of proof of a present disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the preponderance of the evidence is against a finding of radiculopathy. Both before and after his recent car accident, the Veteran reported no radiating or sciatic pain when seeking treatment for his lumbar disability. Moreover, in both his VA Exam and in treatment following his car accident, the Veteran exhibited no signs of pain on single leg raise testing, which is conducted specifically to determine if radicular or sciatic pain is present. As the preponderance of the evidence is against a finding that the Veteran had the claimed disability at any time during this appeal, the claim is denied. 2. Entitlement to an evaluation in excess of 10 percent for chronic lumbosacral strain The Veteran’s service-connected chronic lumbosacral strain is rated as 10 percent disabling from August 5, 1994. In June 2016, the Veteran filed his claim for an increased rating. He seeks a rating of 40 percent. In an August 2016 VA Exam, the record reflects that the Veteran exhibited a normal gait during his physical exam. The examiner noted that the Veteran experienced pain that limited his functional ability over a period of repeated use and with flare-ups. However, the examiner was not able to describe the functional loss in terms of range of motion in either circumstance because the Veteran continued to have normal range of motion even with increased pain. The examiner also found the Veteran had full range of motion of the spine with no signs of pain during testing. Given the consistently normal range of motion findings during the appeal, the Board finds that the joint testing requirements in Correia v. McDonald, 28 Vet. App. 158 (2016) have been satisfied, and flare-ups have been considered by the examiner as required by Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The Veteran also had no limits on range of motion or function following three repetitions of the motion testing. The examiner also noted that there was no guarding or muscle spasm associated with the disability. Finally, the examiner found that the thoracolumbar strain did not impact the Veteran’s ability to work. In his October 2016 Notice of Disagreement, the Veteran explained that he experiences pain after walking for more than 30 minutes or standing for more than 45 minutes and needs to rest. In correspondence in April 2017, the Veteran further described how his back pain had increased in the past several years, and how the March 2017 car accident (described above) had further aggravated his back. He claimed his back pain begins by mid-day during his work, causing him to decrease his workload. Private treatment records from April 2017 show that after his car accident the Veteran reported dull pain after walking for 30 minutes, standing for most of the day, or doing yard work. The treating physician found normal curvature of the thoracolumbar spine, full range of motion, and no pain on the single leg raise test. VA treatment records from March – June 2017 show that the Veteran’s X-rays following his car accident were negative. The treating physician assessed the Veteran as having degenerative disc disease (DDD) and recommended short term pain medication, ice, and rest. The Veteran expressed unwillingness to take painkillers during the day due to work. The Veteran requested an MRI, but the physician stated that imaging was unnecessary at that time. There are no records of any follow-up treatment. In his October 2017 Form 9, The Veteran explained that he avoids taking pain pills because he drives up to 4 hours per day at work. He described pain and muscle spasms when he walks more than 20 minutes. However, he also stated that flexibility was not an issue, and how he stretches to alleviate pain. The Veteran also repeatedly expressed doubt over the quality of his VA exam. The Board acknowledges the Veteran’s concerns; however, the VA exam findings are consistent with those in his private treatment records, and the VA examiner conducted the battery of tests necessary to determine the extent of his disability. As there is no conflicting medical evidence of record, the Board affords a high degree of probative weight to the VA medical records. The Veteran is already rated at 10 percent due to his functional loss from painful motion under 38 C.F.R. § 4.59. There is no medical evidence of any limit on the Veteran’s range of motion of his spine, either before or after his car accident. Although the Veteran mentions experiencing spasms with pain when walking over 20 minutes, there is no medical evidence of any effect on his gait or spinal contour, both of which have been described as normal by various examining physicians. While the Board credits the Veteran’s statements regarding the impact on his daily routine his back pain causes, there is no indication that it has prevented him from maintaining gainful employment, or any functional loss beyond that already considered in his current rating. In short, none of the elements required for a rating above 10 percent are present, and therefore the claim is denied. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. McCormick, Associate Counsel