Citation Nr: 18155317 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-52 047 DATE: December 4, 2018 ORDER Entitlement to a temporary total evaluation due to treatment for a service-connected disability requiring convalescence is denied. Entitlement to service connection for sciatica, right lower extremity, is denied. Entitlement to service connection for sciatica, left lower extremity, is denied. REMANDED Entitlement to a compensable rating for thoracic spine apophysitis is remanded. FINDINGS OF FACT 1. The Veteran did not require surgical or other treatment necessitating convalescence as a result of a service-connected disability. 2. The preponderance of the evidence is against a finding that the Veteran’s sciatica of the right lower extremity was caused or aggravated by service-connected thoracic spine apophysitis or otherwise etiologically related to service. 3. The preponderance of the evidence is against a finding that the Veteran’s sciatica of the left lower extremity was caused or aggravated by service-connected thoracic spine apophysitis or otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for the assignment of a temporary total disability evaluation based on surgical or other treatment necessitating convalescence have not been met. 38 C.F.R. §§ 4.30 (2017). 2. The criteria for service connection for sciatica of the right lower extremity have not been met. 38 U.S.C. § 1110 (2012); 38 C.F. R. § 3.303 (2017). 3. The criteria for service connection for sciatica of the left lower extremity have not been met. 38 U.S.C. § 1110 (2012); 38 C.F. R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1986 to October 1990. During his period of service, he earned the Army Service Ribbon, Marksman Badge (M-16 Rifle), Sharpshooter Badge (Hand Grenade), Army Achievement Medal (1st Oak Leaf Cluster), and Good Conduct Medal. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).   Convalescence Under 38 C.F.R. § 4.30(a), temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. The Veteran seeks a temporary total disability rating for an April 2011 anterior cervical discectomy and neural decompression. The Board notes that temporary total ratings under 38 C.F.R. § 4.30 are only awarded for surgeries or treatment pertaining to a service-connected disability. Here, the evidence of record indicates that the April 2011 surgical procedure was due to a nonservice-connected cervical spine condition. As the Veteran is not service-connected for a cervical spine disability, the claim for a temporary total rating based on convalescence must be denied as a matter of law because any such surgery or treatment was unrelated to a service-connected disability. See 38 C.F.R. § 4.30. Because the law is dispositive on this matter, the claim must be denied due to a lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Sciatica of the Right and Left Lower Extremities The Veteran contends that he is entitled to service connection for sciatica of the right and left lower extremities as a result of an in-service, or in the alternative, due to his service-connected thoracic spine disability. With regard to a present disability, the Veteran’s August 2011 VA examination notes a diagnosis of sciatica. Thus, the first elements of the Shedden and Wallin analysis have been met. With regard to direct service-connection claim, a review of the Veteran’s service treatment records reveals complaints of numbness and weakness in the lower extremities, as well as pain radiating down the back of the Veteran’s legs in association with back pain following an in-service injury after a weapons crate fell onto him. With regard to secondary service connection, the Board notes that the Veteran is service-connected for thoracic spine apophysitis. Thus, the second elements of the Shedden and Wallin analysis have been met. However, the Board finds that the preponderance of competent and credible evidence weighs against finding that the Veteran’s current sciatica had its onset during active duty service, or that his current sciatica is otherwise related to his active duty service; therefore, the third element under Shedden is not met. Further, the Board finds that the preponderance of competent and credible evidence weighs against finding that the Veteran’s current sciatica was caused or aggravated by his service-connected thoracic spine disability; therefore, the third element under Wallin is not met. The Veteran appeared for VA spine and peripheral nerves examinations in August 2011. The Veteran reported mid-back burning pain that radiated to the abdomen and bilateral inguinal area. He also reported lower back pain that radiated down to his bilateral lower extremities. The examiner did not observe any tenderness in the thoracic spine. The examiner noted that April 2011 thoracic spine MRI results failed to reveal any major disc herniation nor any significant neural compression. The examiner opined that it was less likely as not that the Veteran’s sciatica was caused or a result of the in-service injury. In support of his opinion, the examiner indicated that the Veteran’s sciatica was related to the compression fractures of the lumbar spine and not his service-connected thoracic spine disability. In an addendum opinion entered in February 2012, the examiner noted that the Veteran’s reported symptoms of mid-back burning pain that radiated to the abdomen and bilateral inguinal area did not follow the dermatome of the thoracic spine. The examiner indicated that the symptoms were consistent with the Veteran’s MRI. The examiner further indicated that the subjective symptoms, including low back pain radiating to the bilateral lower extremities, numbness in the toes, and abnormal gait, were secondary to the compression fracture at L1-5. As such, the examiner opined that it appeared that the Veteran’s symptoms were not related to his thoracic spine and were either related to his cervical spine and/or lumbar spine conditions. A VA medical opinion was obtained in August 2016. The examiner opined that the Veteran’s current sciatica of the right and left lower extremities was less likely than not related to his in-service injury or his service-connected thoracic spine apophysitis. The examiner indicated that the Veteran’s lumbar spine degenerative changes were responsible for the development of his current sciatica of the left and right lower extremities. The examiner further indicated that the Veteran’s service-connected thoracic spine apophysitis would not have given rise to his current sciatica of the right and left lower extremities, as it was not in the correct anatomical position to do so. Based on the evidence of record, the Board finds that service connection for sciatica of the right and left lower extremities on a direct basis is not warranted. As the preponderance of the evidence does not show a medical nexus between the presently diagnosed sciatica of the right and left lower extremities and the Veteran’s service, service connection for sciatica of the right and left lower extremities cannot be granted on a direct basis. Further, the Board finds that the preponderance of competent and credible evidence weighs against finding that the Veteran’s current sciatica was caused or aggravated by his service-connected thoracic spine apophysitis. In reaching these conclusions, the Board finds the August 2011 VA examination report to have great evidentiary weight, as the VA examiner reviewed the Veteran’s claims folder and medical history, and examined the Veteran before rendering the medical opinion. The Board further finds the August 2016 VA examination report to be highly probative as it reflects a comprehensive and reasoned review of the entire evidentiary record and medical literature prior to rendering the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (finding an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed decision). Consideration has also been given to the Veteran’s contentions that his sciatica of the right and left lower extremities is related to his service-connected thoracic spine disability. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a layperson, as it involves making definitive clinical diagnoses based on knowledge of neurology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report that he experiences numbness, weakness, and radiating pain, he is not competent to link those complaints to a particular etiology. His assertions are therefore not competent evidence of a medical nexus. Accordingly, the Board finds that the claims of entitlement to service connection for sciatica of the right and left lower extremities must be denied under any theory of entitlement. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). REASONS FOR REMAND The Veteran contends that he is entitled to a compensable rating for his service-connected thoracic spine disability. The evidence shows that the Veteran last underwent a VA spine examination in August 2011. However, the examination of record does not provide sufficient information regarding range of motion. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. While the spine is not a paired joint such that range of motion measurements for the opposite undamaged joint are not necessary, under Correia, there is a need for testing for pain on both active and passive motion and, if possible, when weight-bearing and nonweight-bearing. A review of the record reveals that neither the August 2011 VA examination nor the VA treatment records demonstrate range of motion for the thoracic spine in passive motion, weight bearing, and non-weight-bearing situations. As such, the Board finds the August 2011 VA examination to be inadequate. Thus, a new VA examination is warranted to determine the current severity and manifestations of the Veteran’s service-connected thoracic spine disability. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with the appropriate examiner to determine the current severity and manifestations of the Veteran’s service-connected thoracic spine disability. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. All necessary testing must be performed. With regard to the Veteran’s thoracic spine disability, the examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected thoracic spine disability, including any associated neurological impairments. All appropriate testing, including range of motion, should be performed. The examiner must further comment as to whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and the degree to which any additional range of motion is lost due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. Pursuant to Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. (Continued on the next page)   Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel