Citation Nr: 18159383 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-56 879 DATE: December 19, 2018 ORDER Entitlement to service connection for radicular pain in the left lower extremity is granted. Entitlement to service connection for radicular pain in the right lower extremity is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The evidence of record is at least in equipoise as to whether the Veteran’s radicular pain in the left lower extremity is proximately due to his service-connected degenerative disc disease of the lumbar spine. 2. The evidence of record is at least in equipoise as to whether the Veteran’s radicular pain in the right lower extremity is proximately due to his service-connected degenerative disc disease of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for secondary service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Marine Corps from May 1981 to July 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for left lower extremity radiculopathy, right lower extremity radiculopathy, and obstructive sleep apnea. Service Connection 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. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). 1. Entitlement to service connection for radicular pain in the right and left lower extremities is granted. The appellant contends that he has bilateral radiculopathy in the lower extremities, caused by his service connected degenerative disc disease of the lumbar spine. He asserts that he has pain that begins in his lower back, and radiates down into his buttocks and thighs bilaterally. After a review of the evidence of record, and affording the appellant the benefit of the doubt, the Board concludes that he has bilateral radicular pain in his lower extremities that is at least as likely as not caused by his service connected degenerative disc disease of the lumbar spine. 38 C.F.R. §§ 3.102, 3.310. In support of his claim, the appellant submitted an August 2017 opinion from his private treating physician which found that the appellant’s “radicular pain involving his buttocks and legs bilaterally is more likely than not a result of degenerative disc disease of the lumbar spine.” The Board affords this opinion significant probative weight as it was offered by the appellant’s treating private physician who has a history of treating the appellant’s disability. The appellant has also repeatedly sought treatment for pain radiating down into his lower extremities, as noted in his VA treatment records from October 2017 through July 2018. He began reporting symptoms of a gradual onset of pain, numbness, and tingling in his legs at a February 2018 VA examination. The appellant has undergone VA examinations of his thoracolumbar spine that did not diagnose symptoms of radiculopathy. The appellant’s testing at these examinations has produced negative straight leg raise test results, and no evidence of decreased reflexes, signs of muscle atrophy, or loss of muscle strength. At the appellant’s February 2017 VA examination, the examiner concluded that there was insufficient objective evidence found to support a diagnosis of radiculopathy. As such, the examiner found the evidence was insufficient to find the appellant had bilateral lower extremity radiculopathy secondary to his degenerative disc disease of the lumbar spine. Considering the above, the Board finds the evidence is in relative equipoise on the issue of whether the appellant has symptoms of bilateral radicular pain in his lower extremities related to his degenerative disc disease of the lumbar spine. Competent medical professionals have offered conflicting diagnoses and opinions on the cause of the appellant’s reported symptoms. The Board finds the appellant is competent to report symptoms of pain radiating down from his lower back into his lower extremities. As the evidence is in relative equipoise on this issue, the Board finds that the appellant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); see also 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). “This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an ‘approximate balance of positive and negative evidence.’ By tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Accordingly, affording the appellant the benefit of the doubt, the Board finds that the appellant has bilateral radicular pain in his lower extremities that is proximately due to his degenerative disc disease of the lumbar spine. Therefore, the Board finds that service connection is warranted for left and right lower extremity radiculopathy. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea is remanded. The appellant contends that his obstructive sleep apnea is causally related to his active service. He asserts that he has snored for many years, that his wife has told him that he snores constantly while he sleeps, and that he has had daytime sleepiness for many years. He also asserts that his service connected degenerative disc disease of the cervical spine contributes to this sleep apnea. After a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating this claim. The appellant underwent a VA examination for his obstructive sleep apnea in February 2017. This examination noted that the appellant’s disability was first diagnosed in August 2011. At that time, the examiner offered an opinion that the appellant’s obstructive sleep apnea was not secondary to, or aggravated by, the appellant’s service connected cervical spine disability. However, the examiner failed address the appellant’s lay contentions that he has had symptoms of his obstructive sleep apnea for many years prior to the diagnosis of the disease and failed to render an opinion addressing whether the appellant’s disability was incurred during, or was causally related to his active duty service. Accordingly, the Board finds that remand is necessary to obtain a medical opinion on whether the appellant’s obstructive sleep apnea had its onset during the appellant’s active duty service. The examiner must elicit information on the onset of the appellant’s symptoms of obstructive sleep apnea, and provide opinions on when the disability onset, and whether that onset date was during the appellant’s active duty service. The examiner should also opine as to whether the appellant’s disability was caused by any incident or injury incurred during active duty service. The examiner must also consider the appellant’s lay testimony that he has had these symptoms for many years. The matter is REMANDED for the following action: Schedule the appellant for an examination by an appropriate clinician to determine the nature, onset, and etiology of any symptoms of obstructive sleep apnea. The examiner should elicit from the appellant information about the onset of his symptoms of snoring and daytime sleepiness. The examiner should then provide an opinion on when the appellant’s sleep apnea had its onset, and whether it at least as likely as not had its onset during the appellant’s active duty service period. The examiner must also opine whether it is at least as likely as not that the appellant’s obstructive sleep apnea is causally related to his active duty service. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel