Citation Nr: 18150494 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 10-34 188 DATE: November 15, 2018 ORDER The petition to reopen a claim of entitlement to service connection for left leg pain is granted. The petition to reopen a claim of entitlement to service connection for sciatica is granted. Entitlement to service connection for left leg pain is denied. Entitlement to service connection for right leg pain including as secondary to degenerative joint disease of the lumbar spine is denied. Entitlement to service connection for sciatica is denied. FINDINGS OF FACT 1. Claims of service connection for left leg pain and sciatica were denied in an unappealed July 2007 rating decision. 2. Evidence received since the July 2007 rating decision relates to an unestablished fact and triggered VA’s duty to assist. 3. The preponderance of the evidence is against finding that the Veteran has left leg pain, right leg pain or sciatica due to a disease or injury in service; or as secondary to service-connected degenerative joint disease of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for left leg pain are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for reopening the claim of service connection for sciatica are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for left leg pain are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for right leg pain are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for entitlement to service connection for sciatica are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1961 to July 1981. These matters come before the Board of Veterans’ Appeals (Board) from a July 2009 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decisional Review Officer at an RO hearing in April 2010. A transcript is of record. The appeal was remanded by the Board in August 2017 for additional development, which has been substantially completed. Claims to Reopen 1. Whether new and material evidence has been received to reopen a claim for left leg pain and sciatica The Veteran seeks to reopen claims of service connection for left leg pain and sciatica. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Id. at 117. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for left leg disability and sciatica was denied in a July 2007 rating decision. The left leg disability was denied on the basis that no current disability was shown. The sciatica was denied because it was not shown in service or shown to be related to service. The Veteran did not initiate an appeal of this decision. New and material evidence was not received within a year of notice of the rating determination and the determination became final based on the evidence then of record. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). The Veteran sought to reopen his claim in April 2009. Evidence associated with the file since the July 2007 determination includes the Veteran’s written statements, a transcript from an April 2010Ro hearing, VA and private medical records, and VA examination reports. The Veteran’s statements are largely duplicative of those previously considered. Many of the medical records are also duplicative. However, there are VA examination reports that are new, and the September 2017 examination in particular discusses the nature of the current, relevant diagnoses and their etiology. As these were elements that were previously unestablished, they are considered material. The claims are reopened. Having reopened the claims, the Board will proceed to address the underlying merits. The Veteran is not prejudiced by this action as the RO has also reopened and adjudicated the claim on the underlying merits. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Service Connection 2. Entitlement to service connection for left and right leg pain and sciatica, to include as secondary to degenerative joint disease of the lumbar spine The Veteran seeks service connection for left and right leg pain, and sciatica. The Veteran asserts that these conditions are related to service. The Veteran also relates leg conditions to the physical rigors of his duties, including flight seat ejection simulations. Alternatively, the Veteran asserts a secondary theory of entitlement related to his service-connected degenerative joint disease of the lumbar spine. 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service treatment record notes a complaint of left leg pain in July 1976. Thereafter, an August 1978 clinical evaluation showed no related abnormality. In a February 1981 report of medical history, the Veteran noted rheumatism of both legs with temperature or humidity changes. The related clinical evaluation showed no abnormalities of the lower extremities. Post-service treatment records notes complaints of pain in the legs. See January 2005 private treatment record and April 2013 VA treatment records. In June 2008 VA treatment records, the Veteran complained of sensory nerve loss in both leg. The evidence of record shows several tests evaluating the Veteran’s leg conditions. In October 2006 private treatment records, the Veteran underwent a Nerve Conduction Study (NCS). The clinician noted a history of chronic alcoholism and complaints of lower extremity pain and numbness in the left, and bilateral buttock pain. The study indicated mostly demyelinating sensory motor polyneuropathy affecting the bilateral lower extremities. There was no evidence of radiculopathy in the bilateral lower extremities upon testing. The clinician explained that the Veteran’s history of chronic alcoholism can account for the finding of polyneuropathy. The Board notes that the Veteran’s history of heavy drinking and alcoholism was also reported in a June 2004 private treatment record. In March 2010 private treatment records, the Veteran underwent an electromyogram (EMG) and NCS. Results showed no evidence of peripheral neuropathy in lower extremities. Further, although the clinician noted complaints of radicular type pain, there was no evidence of radiculopathy involving injury to the nerve roots. In February 2014, the Veteran again underwent EMG and NCS testing. The clinician noted complaints of numbness and radiating pain. EMG and NCS testing showed early peripheral neuropathy with superimposed bilateral peroneal neuropathy. The EMG was noted to be indicative of a questionable old injury to the right superficial peroneal nerve, with no evidence of denervation. At the June 2009 VA examination, the Veteran was noted to have a diagnosis of neuropathy. The examiner noted the Veteran’s reported in-service injury in a softball game and current symptoms of radiating pain to both legs and numbness. The examiner noted prior testing including EMG and NCS showing mild polyneuropathy of lower extremities and no lumbar radiculopathy. Ultimately, the examiner opined that polyneuropathy of the lower extremities is less likely than not due to the Veteran’s service-connected lumbar condition. Rather, the examiner opined that the most likely etiology is related to past alcohol use. An October 2014 VA examination in relation to Agent Orange exposure noted that the Veteran’s peripheral neuropathy did not manifest in service or within one year of discharge. Pursuant to the Board August 2017 Remand, the Veteran was afforded another VA examination in September 2017. The examiner indicated a diagnosis of peripheral neuropathy of the bilateral lower extremities and right peroneal nerve neuropathy. The examiner determined that the Veteran does not have a lumbar radiculopathy or a sciatica/sciatic nerve condition. The examiner reviewed all of the evidence requested by the Board remand including, but not limited to: the Veteran’s report of in-service injury, duties involving the ejection seat simulation, and reported onset of pain radiating down both leg in service. The examiner also discussed the prior testing and treatment records including the October 2006, March 2010 and February 2014 testing results. The examiner opined that the right and left leg conditions are less likely than not related to service. In her rationale, the examiner noted the October 2006 private treatment record which indicated the Veteran’s conditions is likely related to prior alcoholism. In discussing the February 2014 EMG/NCS (with findings indicative of a questionable old injury to the right superficial peroneal nerve), the examiner explained that that there is no relationship between those injuries and peripheral nerve disorder with peroneal nerve disease since they are not caused by a spine condition but due to a peripheral nerve disease. The examiner explained that polyneuropathies have a variety of causes to include diabetes, alcohol abuse, and immune disorders. The examiner noted the Veteran had a prior history of daily alcohol use, with 3 to 6 beers daily, until 2004 when he quit. Moreover, the examiner indicated that peripheral neuropathy by definition, as distinguished from lumbar radiculopathy, is not related to a lumbar condition. Rather, it relates to peripheral nerves. Thus, neuropathy is unlikely to be due to or aggravated by the Veteran’s lumbar condition. Upon review, the preponderance of the evidence weighs against finding that the Veteran’s peripheral neuropathy and peroneal neuropathy of the bilateral lower extremities are related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). These conditions were not diagnosed during service. Treatment records show the Veteran was not diagnosed until 2006, decades after his separation from service. Further, the most probative and competent evidence does not support a causal nexus to service, or to the service-connected lumbar spine disability. The June 2009 and September 2017 VA examiners opined that the Veteran’s peripheral neuropathy and peroneal neuropathy in the bilateral extremities are not at least as likely as not related to service. The September 2017 VA examiner further opined that these conditions were neither caused nor aggravated by the service-connected lumbar spine disability. The rationale was that the Veteran’s neuropathy was more likely related to past alcoholism given the nature of peripheral neuropathy and the Veteran’s medical history. The examiners’ opinions are probative, because they are based on a review of the Veteran’s statements and his medical history and were supported with rationale that contained clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, entitlement to service connection for sciatica is not warranted because there is no competent evidence of such a current disability. Service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). At the September 2017 VA examination, the examiner opined that there was no evidence to support a clinical diagnosis of sciatica. Based on the competent and probative evidence, a current disability is not established. There are no equally competent and probative opinions to the contrary. Rather, the Board notes that the October 2006 private evaluation also relates the Veteran’s neuropathy to his history of alcoholism. The Veteran is competent to report his experience and symptoms. Also, because he worked as a medical corpsman/ medical assistant and his Form shows completion of field medical training and basic hospital course, he is considered to be some level of competency. However, the Board finds that the opinions provided by the September 2017 VA far outweigh his opinions because the examiner is a licensed physician with far more medical training, clinical experience and expertise. Accordingly, the Veteran’s assertions regarding his diagnosis and their etiology is less probative than the VA examiner’s opinion. The same reasoning applies to the June 2009 VA examiner’s opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board has considered that the Veteran’s contention regarding the adequacy of the June 2009 VA examination. See February 2010 and April 2010 correspondence. Specifically, the Veteran indicated that the examination was brief, the examiner failed to listen to the Veteran’s answers, and the report contained false information, to include the account of the in-service injury in the softball game, and his current medication regimen. However, the Board finds the June 2009 examination is adequate. The examination report included consideration of the Veteran’s reported symptoms both during and after service, the Veteran’s account of his in-service injury, and the post-service clinical history. The opinion is free of significant error as to the relevant and material facts. Further, the examination and report contained sufficient detail for the Board to make a fully informed evaluation of whether direct service connection is warranted. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In sum, the preponderance of the competent and probative evidence weighs against the claims. Accordingly, the benefit of the doubt doctrine does not apply. Service connection for left leg pain, right leg pain, and sciatica is not warranted. See 38 U.S.C. §5107 (2012); 38 C.F.R. §3.102 (2016); Gilbert v. Derwinski, 1 Vet. App.49, 55 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel