Citation Nr: 1808838 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 16-04 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for radiculopathy of the bilateral lower extremities as secondary to service-connected degenerative joint disease and degenerative disc disease of the lumbar spine (lumbar spine disability). 2. Entitlement to a rating in excess of 20 percent prior to August 12, 2015, and in excess of 40 percent thereafter, for service-connected lumbar spine disability. 3. Entitlement to a rating in excess of 10 percent for service-connected right knee disability. 4. Entitlement to a rating in excess of 10 percent for service-connected left knee disability. 5. Entitlement to an initial compensable rating for service-connected headaches. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Todd S. Hammond, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1993 to February 2002. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In an October 2015 rating decision, the agency of original jurisdiction (AOJ) increased the Veteran's disability rating for his service-connected lumbar spine disorder from 20 percent to 40 percent, effective August 12, 2015. As this does not constitute a full grant of the benefits possible, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2016, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing; a transcript of the hearing is of record. Although his attorney requested that additional evidence added to the record following the February 2016 supplemental statement of the case be first considered by the AOJ, as it relates to his claim for service connection for radiculopathy of the bilateral lower extremities, as the Board is granting the full benefit sought on appeal, there is no prejudice to the Veteran by the Board considering this evidence in the first instance. 38 C.F.R. § 20.1304 (2017). The issue of entitlement to service connection for radiculopathy of the bilateral lower extremities is addressed in the decision below. The remaining issues on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence of record is in relative equipoise as to whether his radiculopathy of the bilateral lower extremities is a neurological manifestation of his service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for service connection for radiculopathy of the bilateral lower extremities as secondary to his service-connected lumbar spine disability are met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. § 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts demonstrate that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if pre-existing service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury; (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran claims entitlement to service connection for radiculopathy of the bilateral lower extremities as secondary to his service-connected lumbar spine disability. Initially, with regard to the first element of service connection, the medical evidence of record demonstrates a present disability, namely radiculopathy of the bilateral lower extremities. For example, the August 2015 VA examiner confirmed the diagnosis of radiculopathy of the bilateral lower extremities involving the sciatic nerves of both lower extremities. Thus, the first element of service connection is met. Next, the Board notes that the Veteran has been awarded service connection for a lumbar spine disability. Thus, the second element of service connection is met, and the remaining inquiry is whether his radiculopathy of the bilateral lower extremities is either secondary to his service-connected lumbar spine disability. Specifically, as issue here is whether the Veteran's radiculopathy of the bilateral lower extremities was secondary to his service-connected lumbar spine disability, or whether such was due to an intervening cause, namely an October 2010 motor vehicle accident. Here, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's radiculopathy of the bilateral lower extremities is secondary to his service-connected lumbar spine disability. A May 2008 VA treatment record noted that an MRI revealed a strong suspicion of mild right lateral disc protrusion (or herniation) at L4-5 that correlated clinically for right L4 radiculopathy. The same treatment record noted that the Veteran experienced episodic bilateral lower extremity numbness and weakness. A March 2010 private treatment record noted that an MRI revealed the presence of lumbar radiculopathy. Specifically, there was an effacement of the fat along the ventral aspect of the exiting right L4 root due to a right lateral component annulus bulge. The diagnosis was mild degenerative disc disease in the lower lumbar spine with a possible mild irritation of the existing right L4 nerve root. Another March 2010 private treatment record noted that the Veteran was experiencing pain in both thighs, and that the symptoms had been present for months. A May 2010 private treatment record noted the Veteran's report of generalized weakness in the lower extremities. Dr. J.B. noted that, upon examination, pressure on the bilateral lumbosacral musculature reproduced some pain that radiated to the groin or the anterior hips. With regard to the complaint of pain radiating into the lower extremities, Dr. J.B. identified a lumbar epidural steroid injection as a possible procedure to help alleviate these symptoms. An August 2010 private treatment record noted that the Veteran experienced weakness in his bilateral legs. The assessment was possible lumbar radiculopathy. In an August 2010 letter to the Veteran's employed, Dr. J.B. indicated that he was unable to bend, twist, or lift anything over twenty five pounds due to low back pain and lumbar radiculopathy. An October 2010 private treatment record reflects that the motor vehicle accident in question occurred on October 15, 2010. The treatment record noted that the accident appeared to have exacerbated some of his chronic low back pain. The treatment provider noted the March 2010 MRI, as well as the Veteran's reports of sciatic type symptoms in the past. The Veteran also reported that the accident caused increased numbness and pain in his legs. Upon examination, the straight leg raise was positive bilaterally, and the assessment was an exacerbation of chronic low back pain with lumbar radiculopathy. As noted above, the Veteran underwent a VA examination in August 2015. The examiner noted that he received treatment for lumbar radiculopathy in 2010 and 2011 following a motor vehicle accident. The examiner noted the diagnosis of radiculopathy of the bilateral lower extremities, but stated that the radiculopathy began after the 2010 motor vehicle accident. In February 2016, an addendum opinion from another medical provider noted the absence of any in-service treatment for radiculopathy, as well as his post-service motor vehicle accidents and treatment. Ultimately, the examiner opined that the Veteran's radiculopathy of the bilateral lower extremities was less likely than not secondary to his lumbar spine disability. Initially, pointing to other medical evidence, the examiner noted the evidence of record failed to support a continued diagnoses of a lumbar strain, and that despite his subjective complaints, there was no objective evidence of radiculopathy. Furthermore, the examiner cited to another treatment record which determined that the Veteran's lumbar spine disability had returned to its base line following the October 2010 motor vehicle accident. Thus, there was no basis to support that his lumbar spine aggravated his radiculopathy. The Board finds that, at the very least, the evidence is in relative equipoise as to whether the Veteran's radiculopathy of the bilateral lower extremities is secondary to his service-connected lumbar spine disability or the result of the October 2010 motor vehicle accident. Although the August 2015 and February 2016 opinions concluded that the Veteran's radiculopathy of the bilateral lower extremities manifested only after the October 2010 motor vehicle accident, as noted above, the other medical evidence suggests that manifestations of radiculopathy of the bilateral lower extremities begin prior to then. See, e.g., March 2008 VA Treatment Record; March 2010, May 2010, and August 2010 Private Treatment Records. Moreover, the pre-October 2010 treatment records clearly identify the disorder as "lumbar radiculopathy," indicating a clear secondary relationship between the Veteran's service-connected lumbar spine disability and his radiculopathy of the bilateral lower extremities. The Board finds that the pre-October 2010 treatment records provide clear conclusions with sufficient reasoning to allow the Board to make an informed decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, the Board finds that the evidence is, at the very least, in relative equipoise as to whether radiculopathy of the bilateral lower extremities is secondary to his service-connected lumbar spine disability and whether it was due to an intervening cause, namely the October 2010 motor vehicle accident. After resolving all reasonable doubt in the Veteran's favor, the claim for service connection for radiculopathy of the bilateral lower extremities is granted. 38 U.S.C. § 5107. ORDER Service connection for radiculopathy of the bilateral lower extremities is granted as secondary to service-connected lumbar spine disability. REMAND Initially, following the February 2016 supplemental statement of the case, in July 2016 and October 2016, the Veteran's attorney submitted additional evidence pertinent to the claims on appeal. During the September 2016 hearing, the Veteran's attorney expressly requested initial AOJ consideration of this evidence. See 38 C.F.R. § 20.1304 (2017). As such, remand is warranted to allow the AOJ to consider this evidence in the first instance. Increased Rating Claims The record shows that the most recent examinations to assess the nature and severity of the Veteran's service-connected lumbar spine disability, bilateral knee disabilities, and headaches were in August 2015. However, during the September 2016 hearing, the Veteran's attorney indicated that the severity of his disabilities had worsened. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggerman v. Brown, 5 Vet. App. 281 (1993). Not only are the last examinations remote, but the record indicates that his condition may have worsened. Given the foregoing, the Board finds that more contemporaneous examinations are needed to fully and fairly evaluate the Veteran's claim for increased ratings for his service-connected lumbar spine disability, bilateral knee disabilities, and headaches. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). TDIU During his September 2016 hearing, the Veteran indicated that he stopped working in October 2011. However, other evidence suggests that he may have worked beyond this point. For example, in a September 2012 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, the Veteran's employer, the United States Postal Service, indicate that he had been employed from November 2002 to the present. Moreover, in a February 2013 Social Security Administration (SSA) Work History Report, the Veteran indicated that he was still working at the United States Postal Service. While the record indicates that the Veteran may have worked after October 2011, further development is necessary to discern whether any employment activity constituted substantially gainful employment. Thus, on remand, the AOJ should also request that the Veteran complete and return an updated VA Form 21-8940, Veterans Application for Increased Benefits Based on Unemployability, and provide any information regarding his income since July 12, 2011 (the date his claim for a TDIU was received), the number of hours he worked, the type of work performed, and the amount of time lost due to his service-connected disabilities. While some SSA records are associated with the claims file, including a July 2013 Disability Determination Explanation that concluded that the Veteran was not disabled, during his September 2016 hearing, the Veteran indicated that SSA benefits had been granted. In Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010), the United States Court of Appeals for the Federal Circuit held that, as long as a reasonable possibility exists that SSA records may be relevant to a veteran's claim; VA must assist him or her in obtaining the records. Therefore, a remand is necessary to obtain any records pertinent to his claim for SSA disability benefits, including any medical records relied upon concerning that claim. The AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through February 4, 2016, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with, and ask that he complete and return, a Veterans Application for Increased Benefits Based on Unemployability, VA Form 21-8940, and a Request for Employment Information in Connection with Claim for Disability Benefits, VA Form 21-4192, for any former and/or current employer since July 2011. He must be advised to provide his employment and financial information, including any information regarding any part-time employment, such as his income, from July 2011 to the present. Additionally, Provide a VA Form 21-8940 to the Veteran and ask him to provide information regarding from 2011 forward. Ask the Veteran to provide IRS tax returns from 2011 through 2017 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2011 thru 2017 and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 2. Associate with the claims file any VA treatment records dated from February 4, 2016, to the present. 3. Obtain and associate with the Veteran's claims file any outstanding SSA records, including any medical records relied upon by the SSA in its determination. 4. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 5. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 6. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA examination to determine the current nature and severity of his service-connected lumbar spine disability and bilateral knee disabilities. The electronic record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. As part of the examination, the examiner should conduct range of motion studies on the lumbar spine and bilateral knees. The examiner should record the range of motion observed on clinical evaluation, in terms of degrees. In so doing, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, or provide an explanation as to why it is not possible to do so. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion and/or extension at which such pain begins. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. The examiner should also address whether the Veteran's bilateral knee disabilities causes instability or laxity, and whether such is slight, moderate, or severe. The examiner should also address the functional effects, to include any limitations, that the Veteran's lumbar spine and bilateral knees have on his activities of daily living, to include employment. In addressing such inquiries, the examiner should take into consideration all of the evidence of record, to include medical records as well as the Veteran's lay statements, accepted medical principles and objective medical findings. A complete medical rationale for all opinions expressed must be provided. 7. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA examination to determine the current nature and severity of his service-connected headaches. The electronic record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should describe any current manifestations of the Veteran's headaches, including the frequency and whether they are associated with prostrating attacks. If prostrating attacks are present, then the examiner should note the frequency of these attacks and indicate whether they result in severe economic inadaptability. The examiner should also address the functional effects, to include any limitations, that the Veteran's headaches have on his activities of daily living, to include employment. In addressing such inquiries, the examiner should take into consideration all of the evidence of record, to include medical records as well as the Veteran's lay statements, accepted medical principles and objective medical findings. A complete medical rationale for all opinions expressed must be provided. 8. Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated. If the benefits sought on appeal are not granted, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs