Citation Nr: 18149343 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-17 266 DATE: November 9, 2018 ORDER Entitlement to service connection for bradycardia is denied. Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for peripheral neuropathy (claimed as pinched nerves) in the right, lower extremity, to include as secondary to a lumbar spine disability is granted. Entitlement to a 30 percent rating, and no higher, for peripheral neuropathy in the femoral nerve of the left, lower extremity from October 24, 2016 is granted. Entitlement to a 30 percent rating, and no higher, for peripheral neuropathy in the popliteal nerve of the left, lower extremity from October 24, 2016 is granted. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The available evidence of record does not show the Veteran’s bradycardia had its onset in or is otherwise etiologically due to service. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence is in at least relative equipoise as to whether his lumbar spine disability was incurred in service. 3. Resolving all reasonable doubt in favor of the Veteran, the evidence is in at least relative equipoise as to whether his peripheral neuropathy of the right, lower extremity was caused by his lumbar spine disability. 4. Prior to October 2016, the Veteran’s left, lower extremity peripheral neuropathy was manifested by no more than moderate, incomplete paralysis. 5. From October 2016, the Veteran’s left, lower extremity peripheral neuropathy has manifested by severe, incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bradycardia have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for peripheral neuropathy of the right, lower extremity have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 4. The criteria for a 30 percent rating for peripheral neuropathy in the femoral nerve of the left, lower extremity from October 24, 2016 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8526. 5. The criteria for a 30 percent rating for peripheral neuropathy in the popliteal nerve of the left, lower extremity from October 24, 2016 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8621. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from October 1975 to October 1979 and from September 1980 to January 1987. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for bradycardia. The Veteran has a current diagnosis of bradycardia (irregular heart beat) per his treatment records. This was first diagnosed in August 2005 after a private physician conducted an ECG and found it to be abnormal. Therefore, the first element of service connection is met. His service treatment records are silent for any symptoms or diagnosis. His May 1986 examination was normal; there was no indication of any chest pains, palpitations, or heart disease. VA treatment records show he continued to experience bradycardia and was given medication to stabilize his condition; however, records do not provide insight into the etiology of his condition. Based on the foregoing, the Board finds that service connection for bradycardia is not warranted. Although the Veteran is diagnosed with bradycardia, and has asserted that it is related to service, there is no evidence to support his assertions. In addition, he has not claimed that he has had a continuity of symptomatology since service. Similarly, the treatment records show his condition was diagnosed in August 2005 (he has not claimed it began any earlier), which is over 18 years after service. Importantly, there is no evidence of symptoms indicative of bradycardia prior to that date—therefore, the Board cannot find that there was an in-service event, injury, or disease. Further, there is no medical evidence establishing a nexus between any current bradycardia and active service. In this regard, the Veteran has not been provided a VA examination because the available evidence does not meet the requirements. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As noted above, the Veteran has a diagnosis of bradycardia; however, there is no evidence showing that the heart condition manifested during service or that an in-service event, injury, or disease caused his disability. The Veteran contends that his symptoms are due to service. As discussed below, this lay etiology opinion is not competent. There is no competent medical or lay evidence of record to indicate that his heart condition is related to service. The second and third elements set forth in McLendon are not satisfied. A VA examination for the heart is not necessary. The Board has considered the Veteran’s lay statements that his bradycardia is related to service. He is competent to report related symptoms because this requires only personal knowledge. Layno, 6 Vet. App. at 469. However, he is not competent to offer an opinion as to the etiology or diagnosis of his bradycardia due to the medical complexity of the matter involved. Jandreau, 492 F.3d at 1372. Such competent evidence has been provided by the medical personnel who have treated the Veteran during the current appeal and by treatment records obtained and associated with the claims file. The Board attaches greater probative weight to the treatment records showing a diagnosis approximately 18 years after service, than to Veteran’s statements. The preponderance of the evidence is against the claim for service connection and there is no doubt to be resolved. As such, the appeal is denied. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for pinched nerves in the right leg and foot. The Veteran has a current diagnosis of degenerative disc disease of the lumbar spine with pain radiating to his lower extremities. He has stated that he injured his back during service while unloading supplies by hand; soon after he experienced lower back pain and numbness in his lower extremities. Treatment records show ongoing complaints of back pain and numbness in the bilateral lower extremities. The Veteran was afforded a VA spine examination in October 2016 and reported a chronic low back condition that began in 1984/1985 while he was stationed in Germany. He noted that his duties frequently included unloading heavy objects by hand due to broken forklifts. He began to notice pain in his low back and since that time, his condition has worsened. He described flare-ups during which he experienced severe back pain that radiated to his buttocks and interfered with sitting. He also noted numbness in his legs and feet several times per day. He could not walk without using a cane or wearing a back brace; he was unable to lift over 10 to 15 pounds, sit or stand for prolonged periods of time. Ultimately, the examiner diagnosed degenerative arthritis of the spine and noted it was less likely than not incurred in or caused by service. The examiner opined: “The claimed Lumbar condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness of left foot numbness. The claimant[‘s] medical records show that there is a back condition that caused a lower extremity condition. The reverse is no supported by medical evidence. That is, numbness in the left foot cannot cause a low back condition.” The examiner from the December 2017 VA examination indicated the Veteran had a lumbar strain and degenerative arthritis. The Veteran reported a lower back injury during service and was later given injections for the pain; there were no flare-ups, functional loss or impairment. Range of motion was measured to 70 degrees of forward flexion and 30 degrees of both right and left lateral flexion and rotation. There was pain noted on the exam but it did not result in or cause functional loss. Ultimately, the examiner found that his claimed condition was at least as likely as not incurred in or caused by service, noting the Veteran had arthritis of the back, as documented by the exam and pain with range of motion. A private physician submitted an opinion in August 2018; after a review of his military history and service treatment records, the physician provided an overview of degenerative disc disease, spinal stenosis, and radiculopathy. Ultimately, the physician indicated the Veteran’s lumbar spine and right lower extremity radiculopathy began in service, noting: “[The Veteran’s] in-service symptom of left foot numbness parallels medical literature in many ways, and is consistent with his later diagnosed DDD with spinal stenosis. He did not have any other diagnosed conditions that may have produced his in-service symptoms...In this case, this condition cannot be caused by any pathology other than his lumbar spine degenerative disc disease. It is broadly accepted that the term radiculopathy refers to compression or irritation of a nerve root as it exits the spinal column.” As to the Veteran’s right, lower extremity neuropathy, the private physician indicated: “As expected, due to the development of DDD and spinal stenosis, other neural structures were compressed and/or irritated. This translates to worsening symptoms. Later on, as his condition progressed, he presented recurring back pain and bilateral radiculopathy. Given the fact that there are no other causal factors for his right lower extremity radiculopathy, this is clearly attributable to his current back condition.” Based on the foregoing, the Board finds that service connection for both a lumbar spine disability and peripheral neuropathy of the right, lower extremity is warranted. The Veteran has a current diagnosis of degenerative disc disease of the lumbar spine and neuropathy in his bilateral lower extremities. He noted an injury to his low back during service, and described pain radiating to and numbness in his lower extremities. As such, the first two elements of service connection have been met and this appeal turns on the nexus element. As to a causal relationship, the Veteran was afforded two VA examinations. The October 2016 examiner provided a negative opinion. The December 2017 VA examiner provided a positive opinion. The Board is also persuaded by the August 2018 private opinion, which detailed the Veteran’s history and provided a complete to accompany the positive opinion. The favorable and unfavorable evidence is at least in equipoise and, as such, reasonable doubt is resolved in the Veteran’s favor and the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection for the Veteran’s low back condition has been established, neuropathy of his right lower extremity is also granted as secondary to his back disability. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he or she, should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require reevaluation in accordance with changes in a veteran’s condition. It is thus essential in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Further, the Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that the competency of evidence differs from its weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interests may affect the credibility of testimony, it does not affect competency to testify”). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996). 4. Entitlement to an increased rating for peripheral neuropathy in the femoral nerve of the left, lower extremity 5. Entitlement to an increased rating for peripheral neuropathy in the popliteal nerve of the left, lower extremity The Veteran seeks a higher rating for his left, lower extremity (LLE) neuropathy. Throughout the period on appeal, the Veteran’s LLE neuropathy has been rated separately as 20 percent disability for the femoral nerve and 20 percent for the popliteal nerve. Under Diagnostic Code (DC) 8526 (femoral nerve), mild incomplete paralysis is rated as 10 percent disabling, moderate incomplete paralysis is rated as 20 percent disabling, severe incomplete paralysis is rated as 30 percent disabling, and complete paralysis of quadriceps extensor muscles is rated as 40 percent disabling. Under DC 8621 (popliteal nerve), mild incomplete paralysis is rated as 10 percent disabling, moderate incomplete paralysis is rated as 20 percent disabling, severe incomplete paralysis is rated as 30 percent disabling, and complete paralysis is rated as 40 percent disabling. Complete paralysis consists of foot drop and slight drop of the first phalanges of all toes, inability to dorsiflex the foot, inability to extend (dorsal flexion) the proximal phalanges of the toes; inability to abduct the foot; weakened ability to adduct; and anesthesia covers the entire dorsum of the foot and toes. 38 C.F.R. § 4.124a. Treatment record show the Veteran experienced low back pain with numbness to the buttocks, posterior thighs, calves, and bottom of his feet that interfered with walking, standing, and sitting for too long. The pain was partially relieved by changing positions and hydrocodone. His legs gave out periodically causing occasional falls; he used a cane for ambulation. Private treatment records show the Veteran continued to experience low back pain that traveled down both legs; the pain in his legs ranged from mild to excruciating. The Veteran was granted social security benefits based on severe impairment of his lumbar spine and numbness in both legs and feet. The Veteran was afforded a VA examination for peripheral nerves in February 2016 and reported pain that has worsened over the years. His symptoms included moderate intermittent pain and moderate paresthesias and/or dysesthesias, and severe numbness in his bilateral, lower extremities. His reflexes were normal but sensory examination showed decreased sensation in the left, lower leg, ankle, foot, and toes. Unfortunately, the examiner did not mark the nerves affected or the overall severity of his reported condition. During the October 2016 VA spine exam, the Veteran reported experiencing numbness down both legs to his feet several times per day and severe back pain that radiated to his buttocks, which interfered with sitting. The examiner noted the Veteran had decreased reflexes in his left knee and ankle; there was also a slight decrease in muscle strength at the hip and knee. There was also mild intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness in the left, lower extremity. Overall, the examiner indicated the Veteran experienced moderate radiculopathy on the left side. Another VA peripheral nerves conditions exam was conducted in May 2017 and he reported longstanding history of spinal stenosis with chronic low back pain, numbness, and paresthesias involving bilateral lower extremities. He noted that both legs gave out periodically, causing him to fall occasionally. He was given epidurals without significant improvement in his symptoms. He experienced moderate paresthesias, and severe, constant pain and numbness. There was decreased sensation in the left, lower leg, ankle, foot, and toes. For the sciatic nerve, the examiner indicated the Veteran experienced moderate, incomplete paralysis. As for functional impact, the examiner noted the Veteran would have difficulty standing or walking for prolonged periods, which would impact his ability to obtain employment requiring physical labor. In the December 2017 VA spine examination report, the examiner noted the Veteran experienced normal sensation and reflexes; there were no signs or symptoms of radicular pain. Upon review of the evidence, the Board finds that a rating of 30 percent for neuropathy of the left, lower extremity from October 24, 2016 is warranted. Although, the October 2016 and May 2017 examinations reflect moderate paresthesias, the Veteran continued to describe his pain and numbness as severe, he had trouble walking, often falling when his legs gave out, and he had decreased sensory examinations. His condition also began to impact his reflexes, as indicated by the “hypoactive” rating in both the left knee and ankle as well as decreased muscle strength. As such, the Board finds that the Veteran’s symptoms more closely approximate severe, incomplete paralysis under both DCs 8621 and 8526 from the date of the October 2016 examination. However, there is no evidence in the record that the Veteran had complete paralysis with foot drop and slight drop of the first phalanges of all toes, inability to dorsiflex the foot, inability to extend (dorsal flexion) the proximal phalanges of the toes; inability to abduct the foot; weakened ability to adduct; and anesthesia covers the entire dorsum of the foot and toes. Nor is there evidence showing complete paralysis of the paralysis of quadriceps extensor muscles. Therefore, the evidence of record does not show that a rating higher than 30 percent for neuropathy of the left, lower extremity would be warranted at any time during the period on appeal. 38 U.S.C. § 5110. The probative evidence prior to February 2016 does not show severe peripheral neuropathy in either the sciatic or femoral nerves of the left lower extremity; rather, the Veteran only experienced sensory symptoms. Here, the February 2016 VA examination indicated moderate bilateral intermittent pain, and paresthesias, as well as severe numbness in the left lower extremity. In addition, the Veteran had decreased light touch to the feet and toes; however, there were no other symptoms such as decreased reflexes or muscle strength. 38 C.F.R. § 4.124(a) notes that when the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. The above determinations are based on consideration of the applicable provisions of VA’s rating schedule. For all the foregoing reasons, the Board finds that the claim for two separate ratings of 30 percent, but not higher, for neuropathy of the left, lower extremity in both the popliteal and femoral nerves from October 24, 2016 is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8521. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. The Veteran was afforded a VA examination for cervical spine disability in December 2017 and the examiner confirmed a diagnosis of degenerative arthritis. However, the examiner’s opinion did not include an adequate rationale; specifically, it was noted the Veteran had arthritis and pain with range of motion but there was no discussion of the etiology of his diagnosed condition. Therefore, on remand, a new opinion should be sought discussing the etiology of the Veteran’s claimed condition. 2. Entitlement to a TDIU. A remand is required prior to adjudication of the claim for a TDIU. Service connection for a lumbar spine disability and peripheral neuropathy of the right, lower extremity has been granted pursuant to the Board’s decision above, but the disability has not yet been rated. As the assigned rating would affect the Veteran’s potential entitlement to a TDIU under 38 C.F.R. § 4.16 (a), the claim for TDIU is not yet ripe for adjudication and shall be remanded to the AOJ for readjudication pending the assignment of ratings for the lumbar spine disability and peripheral neuropathy of the right, lower extremity. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records relevant to the claims on appeal. 2. Obtain an addendum opinion from a suitably qualified VA examiner regarding the nature and etiology of the Veteran’s claimed neck disability. The examiner is required to review all pertinent records associated with the claims file. The examiner is asked to provide opinions for the following: (a) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s neck disability was incurred in service or is otherwise causally related to his active service? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s neck disability was caused by his service-connected lumbar spine disability? (c) Is it at least as likely as (i.e., a 50 percent or greater probability) that the Veteran’s neck disability has been aggravated (chronically worsened) by his service-connected lumbar spine disability? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time. A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative. 3. After all development has been completed, the RO should readjudicate the issue of entitlement to a TDIU pending the assignment of a rating for service connected lumbar spine disability and peripheral neuropathy. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel