Citation Nr: 19148366 Decision Date: 06/20/19 Archive Date: 06/20/19 DOCKET NO. 14-09 580 DATE: June 20, 2019 ORDER Entitlement to service connection for left leg numbness, to include as secondary to the Veteran’s service-connected low back strain is denied. Entitlement to an evaluation in excess of 20 percent disabling for the Veteran’s service-connected low back strain is denied. FINDINGS OF FACT 1. The preponderance of the evidence fails to show that the Veteran has or has had a disability manifested by radiculopathy or sciatica impacting the left leg at any time during the pendency of the appeal. 2. Throughout the appeal period, the Veteran’s service-connected low back strain has been manifested by no worse than flexion limited to 80 degrees, with no evidence of muscle spasm, guarding, or localized tenderness resulting in abnormal gait or abnormal spinal contour. The evidence also fails to show flexion limited to 30 degrees or less, ankylosis, radicular pain, or intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for left leg numbness, to include as secondary to the Veteran’s service-connected low back strain have not been met. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 2. The criteria for establishing entitlement to an evaluation in excess of 20 percent disabling for the Veteran’s service-connected low back strain have not been met. 38 U.S.C. § 1155, 5107 (2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Navy from October 1961 to August 1962. In his March 2014 substantive appeal, the Veteran requested a video conference hearing. In May 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In a June 2018 Board decision, this matter was remanded for additional development to include scheduling the Veteran for new VA examinations. As the requested development has been completed, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (2014); 38 C.F.R. §§ 3.303 (a), 3.304 (2018). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2018). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2018). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for left leg numbness, to include as secondary to the Veteran’s service-connected low back strain The Veteran contends that he suffers from left leg numbness, to include as causally related to his service-connected low back strain. The preponderance of the evidence is against his claim. In analyzing the Veteran’s claim, the threshold inquiry before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of radiculopathy or sciatica impacting the left leg and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records are silent for complaints of pain nor any injury to the left knee or leg during active service. At enlistment, no physical abnormalities were observed in August 1954. Reports of medical history, dated August 1954, May 1960, and September 1961, made no reference to complaints of leg or knee pain, numbness or any specific injury. A report of medical examination revealed normal physical findings at separation in July 1962. Post-service treatment records show sporadic complaints of left leg and knee pain. A podiatry outpatient record, dated August 2012, referenced bilateral leg edema. In September 2013, a primary care treatment record noted non-radiating pain on the left side. The Veteran endorsed a history of chiropractic treatments. In March 2012, the Veteran was afforded a VA examination. During the clinical evaluation, the Veteran reported suffering a left knee injury simultaneously with his low back strain during active service. An onset of left knee numbness was endorsed 20 years later. On examination, no flare-ups of pain were noted. Range of motion of the left knee revealed flexion limited to 130 degrees with normal extension. There was no evidence of painful motion. No additional functional loss was observed with repetitive use testing. There was no evidence of functional loss, localized tenderness or pain to palpation. The Veteran’s muscle strength and joint stability was normal. Decreased sensation was observed below the left knee. No additional knee conditions were indicated. The Veteran denied use of assistive devices. Following the clinical evaluation, the examiner opined that the Veteran’s left knee was fully functional, although a circular area of numbness was observed around the entire knee. Further, it concluded that it was less likely than not that the Veteran’s left knee condition is causally related to active service, to include as due to his service-connected low back condition. In support of the stated conclusion, the examiner noted that the Veteran was diagnosed with degenerative disc disease L5-S1 in 2007. A VA treatment record, dated August 2011, referenced complaints of non-radiating lumbar pain. In a March 2012 podiatry note, a diagnosis of mild diabetic sensory neuropathy of the bilateral feet was rendered. The medical evidence made no reference to complaints of left knee numbness until 20 years after initial onset of his low back injury. Further, at no time has a physician concluded that the Veteran’s symptomology is causally related to his service-connected low back disability or in any other way related to military service. During an April 2018 Board hearing, the Veteran testified that he experienced numbness and pain radiating down his left leg dating back to 1962, immediately following separation from active service. He further asserted recent problems with circulation in the left leg and acknowledged a current diagnosis of mild diabetic sensory neuropathy. According to the Veteran, his VA physician recently suggested that his bilateral lower extremity numbness was causally related to his service-connected low back disability. Pursuant to a June 2018 Board decision, the Veteran’s claim was remanded for additional development to include scheduling a new VA examination. On examination in April 2019, the Veteran reported impaired balance and stated that his legs “sometimes go out.” A current diagnosis of lower extremity peripheral sensory polyneuropathy was rendered. Mild numbness impacting the bilateral lower extremities was also observed. Muscle strength was normal with no evidence of muscle atrophy. Although the Veteran’s deep tendon reflexes were normal, with absent sensation in the bilateral feet and toes. The Veteran’s gait was described as normal. Mild incomplete paralysis impacted the internal popliteal (tibial) nerve and anterior crural (femoral) nerve of the left and right lower extremity. Use of assistive devices was denied. No functional impact was reported. Following the clinical evaluation, the examiner indicated that there was no objective evidence of lower extremity radiculopathy or sciatica. Although diagnostic findings revealed degenerative arthritis of the lumbar spine, no nerve compression was observed. The examiner further stated that sensory polyneuropathy occurs when the small nerves in the distal extremities are injured or die off. Possible causes included diabetes mellitus - type II, peripheral vascular disease, a vitamin 12 deficiency (B-12), prescribed medications such as statins for treatment of high cholesterol, excessive drinking, and the normal aging process. In finding that the record fails to show a current diagnosis of radiculopathy or sciatica, the Board has fully considered the Veteran’s complaints of left leg numbness and pain. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that pain, even in the absence of a presently-diagnosed condition, can be viewed as a “disability” when there is evidence of functional impairment. However, a veteran cannot demonstrate service connection simply by asserting subjective pain; to establish a disability, the pain must amount to a functional impairment. Id. at 1367-68. As described above, two separate VA examinations, date March 2012 and April 2019, specifically concluded that there was no evidence of radiculopathy or sciatica. Additionally, no functional impact was reported as causally related to the Veteran’s complaints of symptoms. Therefore, despite the Veteran’s report of pain and left leg numbness, the evidence does not demonstrate that his alleged symptomology reaches the level of a functional impairment of earning capacity, and as such, is not a disability under 38 U.S.C. § 1110. While the Board has fully considered the Veteran’s lay statements regarding left leg numbness and pain and recognizes his subjective belief that his condition is causally related to his service-connected low back strain, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical training, expertise, and the ability to interpret complicated diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Although the Board is sympathetic to Veteran’s complaints of symptoms, the medical evidence does not support a diagnosis of radiculopathy or sciatica impacting the left leg to include as causally related to the Veteran’s service-connected low back strain. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to service connection for a left leg numbness, to include as secondary to the Veteran’s service-connected low back strain must be denied. Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2018). The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.1, 4.10 (2017). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an evaluation in excess of 20 percent disabling for the Veteran’s service-connected low back strain The Veteran contends that the current severity of his service-connected low back strain warrants a higher evaluation. The preponderance of the evidence is against his claim. The Veteran’s lumbar spine disability is currently evaluated under Diagnostic Code 5237, which pertains to the lumbar spine. 38 C.F.R. § 4.71a (2018). Under the General Formula, a 10 percent rating is warranted for limited forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for limited forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for limited forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a (2018). The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a (2018). Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a (2018). For VA purposes, normal range of motion for the thoracolumbar spine is flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and rotation from 0 to 30 degrees. The combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V (2018). Alternatively, a back disability can also be evaluated as intervertebral disc syndrome (IVDS) with incapacitating episodes. Under the criteria listed in Diagnostic Code 5243, a 20 percent evaluation requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks but more than four weeks, and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a (2018). As there is no evidence of a current diagnosis of IVDS, Diagnostic Code 5243 is not for application. In this case, the Board has reviewed the competent evidence of record and finds no support for an assignment of the next higher evaluation of 40 disabling for the Veteran’s service-connected lumbar low back strain. VA outpatient treatment records shows ongoing complaints of low back pain. Review of the record indicates that the Veteran has been afforded multiple VA examinations. In March 2012, the Veteran was afforded a VA examination. Range of motion testing revealed forward flexion limited to 80 degrees, extension limited to 10 degrees, left and right lateral flexion limited to 20 degrees, and left and right lateral rotation limited to 15 degrees. Evidence of painful motion was observed. Repetitive use testing did not result in additional functional loss or loss of range of motion. Functional loss was described as less movement than normal, weakened movement, pain on movement, interferences with sitting, standing, and/or weight-bearing. Localized tenderness or pain was described as muscle spasms or guarding which did not result in abnormal gait or spinal contour. The Veteran’s muscle strength, sensation, and deep tendon reflexes were normal, with no evidence of muscle atrophy. Decreased sensation was acknowledged in the left thigh/knee. Straight leg raise testing yielded negative findings. No evidence of radicular pain, IVDS or neurological abnormalities were noted. The Veteran denied use of assistive devices. The examiner acknowledged the Veteran’s assertion that his left knee pain dated to his in-service low back injury, with persistent symptoms thereafter. He also endorsed the onset of left knee numbness 20 years later. Diagnostic imaging revealed degenerative arthritis of the lumbar spine, with no evidence of radiculopathy or sciatica. During an April 2018 Board hearing, the Veteran testified that his low back pain had worsened. Current symptoms included frequent episodes of pain, including incapacitating episodes that impair his activities of normal daily living. He also endorsed frequent chiropractic adjustments and use of both oral prescribed and over-the-counter medications to treatment pain. Pursuant to a June 2018 Board Remand decision, the Veteran was afforded an additional examination. On examination in April 2019, the examiner acknowledged current diagnoses including osteoarthritis and degenerative disc disease L5-S1. No radicular pain was observed. An MRI conducted in May 2012 revealed mild to moderate left and moderate right neural foraminal stenosis at L5-S1, with a broad-based disc bulge. Mild bilateral neural foraminal stenosis L4-5 and L3-4 secondary to mild broad-based disc bulges was also observed. There was no evidence of spondylosis or spondylolisthesis. Range of motion testing revealed forward flexion limited to 85 degrees, extension limited to 0 degrees, right and left lateral flexion limited to 20 degrees, and right and left lateral rotation limited to 20 degrees. Abnormal range of motion does not contribute to functional loss. No pain was observed on examination, to include with weight-bearing. There was also no evidence of localized tenderness or pain to palpation of the thoracolumbar spine. Repetitive use testing did not result in any additional functional loss or loss of range of motion. Neither pain, weakness, fatiguability, or incoordination significantly limited the Veteran’s functional ability over time. No flare-ups of pain, muscle spasms, or guarding was reported. The Veteran’s muscle strength, sensation, and deep tendon reflexes were normal. There was no evidence of muscle atrophy, radicular pain, IVDS or ankylosis. Straight leg raise testing yielded negative findings. No neurological abnormalities were observed. The Veteran denied use of assistive devices. Diagnostic findings confirmed degenerative arthritis of the lumbar spine. No evidence of lower extremity radiculopathy or sciatica was indicated. Considering the foregoing, the Board finds that an evaluation in excess of 20 percent disabling for the Veteran’s service-connected low back strain is not warranted. As previously indicated, the next higher rating of 40 percent disabling requires limited forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the thoracolumbar spine. See 38 C.F.R. § 4.71a. Throughout the appeal period, the Veteran’s low back strain has not been manifested by forward flexion limited to 30 degrees or less, ankylosis, or IVDS with incapacitating episodes. Thus, the Veteran’s symptomology more nearly approximates the rating criteria described by the assigned evaluation of 20 percent disabling. While the Board recognizes the Veteran’s competence to report his current symptoms and their worsening, the evidence of record does not support his assertion. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The preponderance of the evidence is against the Veteran’s claim of entitlement to an evaluation in excess of 20 percent disabling for service-connected low back strain is denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Whitaker, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.