Citation Nr: 20003370 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-38 526 DATE: January 14, 2020 ORDER Entitlement to service connection for left lower extremity radiculopathy is granted. REMANDED Issue of entitlement to a higher initial rating for degenerative disc disease with L5 S1 herniation, currently rated at 20 percent, is remanded. FINDING OF FACT The evidence is in at least relative equipoise as to whether the Veteran’s left lower extremity radiculopathy is a current disability that manifested to a compensable degree during service. CONCLUSION OF LAW The criteria for entitlement to service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2016 to April 2012. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2012 rating decision issued by the Department of Veterans Affairs (VA). See May 2013 Notice of Disagreement (NOD); May 2017 Statement of the Case (SOC); July 2017 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in an October 2019 hearing. See October 2019 Hearing transcript. 1. Entitlement to service connection for left lower extremity radiculopathy. The Veteran asserts that his medical records show he has left lower extremity radiculopathy. May 2013 NOD. The Veteran testified to having numbness in his left foot and pain from his back to his lower left extremity since service. October 2019 Hearing transcript. The Veteran also testified that his symptoms wax and wane daily and worsened after harder days at work. See id. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1112, 1133; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Certain chronic diseases, including organic diseases of the nervous symptom such as radiculopathy, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Board finds that the evidence is in at least relative equipoise as to whether the Veteran’s left lower extremity radiculopathy is a current disability. Service treatment records show the Veteran complained of having back pain with numbness and weakness in his lower left extremity. June 2010 Service treatment record. Service treatment providers later diagnosed his left lower extremity symptoms as left S1 radiculopathy based on EMG testing. June 2010 Service treatment record; October 2010 Service treatment record. Shortly after separation, the Veteran reported similar complaints of low back pain that radiated to his left mid-calf to VA treatment providers. May 2012 VA treatment evidence. The Veteran testified at the October 2019 hearing to having continued lower left extremity numbness and pain since service that waxes and wanes, which Board finds probative. October 2019 Hearing transcript. The Board recognizes that the Veteran was noted as not seeking entitlement to service connection for left lower extremity radiculopathy during the June 2011 VA examination. June 2011 VA examination. In addition, the more recent VA treatment evidence also shows that the Veteran denied having numbness, tingling, and radicular symptoms. See June 2016 VA treatment evidence; November 2016 VA treatment evidence. However, the June 2011 VA examiner also noted that the Veteran complained of numbness in his left foot during the examination despite not claiming service connection. A review of the VA treatment evidence shows that the Veteran’s statements to treatment providers denying numbness, tingling, and radicular symptoms were made in context of a seeking treatment for a right calf injury, neck pain, and shoulder pain; and not for his back or left lower extremity. See June 2016 VA treatment evidence; November 2016 VA treatment evidence. Moreover, the Veteran has testified that his symptoms wax and wanes. The Board finds that this evidence does raise a reasonable doubt as to whether the Veteran’s left lower extremity radiculopathy is a current disability. In resolving any reasonable doubt in favor of the Veteran, the Board finds the Veteran’s left lower extremity radiculopathy is a current disability. Finally, the Board finds that the Veteran’s left lower extremity radiculopathy is a chronic disease that manifested to a compensable degree during service. As noted above, the Veteran complained of left lower extremity numbness. June 2010 Service treatment record. The Veteran reported problems running due to his continued leg numbness. Id. The Veteran’s pain improved with use of a TENS unit, but still could not stand on his left toes during a physical examination. August 2011 Service treatment record; August 2011 Service treatment record. The evidence supports that the Veteran’s left lower extremity radiculopathy manifested as at least a mild paralysis of the sciatic nerve during service and is, thus, compensable. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. According, the Board finds that presumptive service connection for the Veteran’s left lower extremity radiculopathy is warranted. REASONS FOR REMAND 1. Issue of entitlement to a higher initial rating for degenerative disc disease with L5-S1 herniation, currently rated at 20 percent, is remanded. The Board finds that the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his degenerative disc disease with L5-S1 herniation. The last VA examination for his back was in June 2011, more than eight years ago. The Veteran testified during the October 2019 hearing that his back condition worsened and he has had episodes of severe back pain four to five times in the last year. See October 2019 Hearing transcript. In addition, the Veteran reported during the June 2011 VA examination that he had flare-ups that affected his back range of motion. June 2011 VA examination. The Veteran testified that he still has flare-ups. October 2019 Hearing transcript. However, it is unclear if the June 2011 VA examination complies with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The June 2011 VA examination report does not indicate if the range of motion testing was during a flare-up and, if not, whether the Veteran’s statements about his symptoms during flare ups were considered. The Board, thus, finds that the Veteran should be afforded the opportunity for another VA examination for his degenerative disc disease with L5-S1 herniation. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for his back and lower left extremity radiculopathy, to specifically include the emergency room treatment for back pain that he testified to during the October 2019 hearing. Ask that the Veteran provide authorizations for VA to obtain records of any such private treatment. Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the claims file. If a provider does not respond to VA’s request for the identified records sought, the Veteran must be so notified and reminded that it is ultimately his responsibility to ensure that private treatment records are received. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative disc disease with L5 S1 herniation. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (a) In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (b) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Review the record and ensure that all development sought in this remand has been completed. Arrange for any further development indicated by the results of the development requested above if deemed warranted by the Agency of Original Jurisdiction (AOJ), and re-adjudicate the claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.