Citation Nr: 20005199 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 15-43 923 DATE: January 22, 2020 ORDER Entitlement to service connection for right lower extremity radiculopathy is granted. FINDING OF FACT The Veteran’s right lower extremity radiculopathy began during active service. CONCLUSION OF LAW The criteria for service connection for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION This appeal has been advanced on the Board’s docket. 38 C.F.R. § 20.900(c). The Veteran served in the Army from February 2010 to December 2013. He is a veteran of the Gulf War Era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that was based on a claim filed in April 2014. The issue of service connection for right lower extremity radiculopathy was previously before the Board in November 2016 when it was remanded for further development, including a Board hearing. The Veteran withdrew his hearing request in December 2017. The claim was returned to the Board for further appellate action. The issue of service connection for right lower extremity radiculopathy was also previously before the board in January 2018, when it was remanded for further development. The Board’s remand directive and the subsequent actions by the Agency of Original Jurisdiction (AOJ) are discussed below. This issue has been returned to the Board for further appellate consideration. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (2017). The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Shedden v. Principi, 381 F.3d 1163 (Fed.Cir. 2004). Under 38 C.F.R. § 3.303(b), a demonstration of continuity of symptomatology may can act as substitute for a positive medical opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the disability and the post-service symptomatology. 38 C.F.R. § 3.303(b); Savage v. Grober, 10 Vet. App. 488 (1997), Hickson v. West, 12 Vet. App. 247. Entitlement to service connection for right lower extremity radiculopathy. The Board’s decision dated January 9, 2018, remanded for a VA examination to: a. Determine whether or not the Veteran has any current low back disabilities. b. Determine whether or not the Veteran has right lower extremity radiculopathy. c. Determine whether or not the Veteran has left lower extremity radiculopathy. d. For each disability present, provide an opinion as to whether or not the disability is etiologically related to the Veteran’s active duty service. The Board noted that in June 2013, the Veteran was evaluated for medical discharge and his noted symptoms included muscle spasms, flare-ups, stiffness, decreased range of motion, parenthesis, and lower leg/foot numbness. However, no diagnosis was provided. Later in June 2013, a follow-up opinion was obtained, but again, no diagnosis was provided and the only statement provided stated that the “decreased range of motion is considered normal for SM due to body habitus.” As this opinion did not have a thorough rationale and did not address the Veteran’s extensive symptoms that were previously noted, the Board found it to be inadequate. Finding the evidence of record did not contain sufficient medical evidence to decide the Veteran’s claims, the Board remanded for an examination to “clarify any current potential low back and bilateral lower extremity radiculopathy disabilities and to determine their nature and etiology.” 38 C.F.R. § 3.159(c)(4) (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The VA examination ordered on remand was completed in November 2019. The examination did not show a diagnosis of or symptoms of sciatica right lower extremity, a narrower issue than the issue on appeal, which is right lower extremity radiculopathy. In a December 2019 rating decision, entitlement to service connection for lumbar strain was granted; entitlement to service connection for sciatica left lower extremity as secondary to the service-connected disability of lumbar strain was granted; and entitlement to service connection for sciatica right lower extremity was denied, based on the examiner’s finding of no diagnosis. The SSOC explained that the evidence of record does not support entitlement to service connection for sciatica right lower extremity. In the absence of a diagnosed condition, the RO denied the claim, concluding that service connection has not been established. The Board finds that the most recent VA examination is incomplete. First, right lower extremity radiculopathy is a broad disability indicating neurological impairment of any nerve affecting the right leg. The Board remanded for an examination to clarify “any current potential low back and bilateral lower extremity radiculopathy disabilities” and to determine their nature and etiology. The examiner provided an opinion naming one specific nerve involved (sciatica) to diagnose sciatica left lower extremity, but did not render a diagnosis of sciatica right lower extremity. More importantly, there is no indication that the examiner specifically considered VA treatment records dated since the filing of the claim on appeal that demonstrated diagnoses that included right lower extremity radiculopathy. Service treatment records dated in the month of June 2011 note the Veteran reported back pain following an airborne operation. The Veteran stated that he injured his back in a jump. He reported that when he impacted the ground, he felt tingling in his extremities. In May 2013, service treatment records indicate that the Veteran reported that he injured his right knee in a night jump in July 2012 and was assisted by a medic, then two to three weeks later, he went to a VA emergency room. He described the pain as dull but when he moves it sends “spikes up his back.” An MRI demonstrated a disrupted distal patellar tendon. He underwent surgery, which he asserted “made it worse.” On examination, pain was described as a 7 on a 0-10 pain scale, 5 with ice and medication, and 9 with mis-use, requiring use of his hinged orthosis. Examination showed passive flexion was decreased, active flexion was decreased, pain was elicited by motion. The Veteran was ultimately recommended for a MEB. In a Notice of Disagreement dated October 2014, the Veteran stated that he cannot get out of bed without his wife’s assistance because of pain in his back and legs. He noted that he was receiving treatment at a VA clinic, was given a cane by the VA doctor, and that he tried physical therapy but it seemed to make his condition worse. In a November 2015 statement, the Veteran stated that he was injured on an airborne operation and sought medical attention at his aide station, and that he was seen in service on numerous occasions for back pain and back spasms, followed by shooting pain down both extremities. He stated that his VA doctor informed him that this pain is caused by degenerative disc disease and that he was given a shot of cortisone in his right leg to help with the pain in his leg and back. He was prescribed muscle relaxers. The Veteran’s wife provided a statement in June 2014 that following his injury and surgery, he continued to have pain and swelling, was not able to move and barely able to function daily. She stated he had problems with his back and his knees. She stated he is discouraged and at times, angry, because he cannot do things that he used to be able to do. A buddy statement was provided in April 2016 from a sergeant who recalled conducting an operation in 2011 with the Veteran, during which the Veteran hit the side of the airplane when exiting the door. The sergeant stated that the Veteran was examined by the medical coverage on the drop zone. The Board notes that the Veteran and his spouse are competent to give evidence about what they experienced and observed. Layno v. Brown, 6 Vet. App. 465 (1994). The Board must determine the credibility of those statements and the weight to be afforded to them, which are factual determinations going to the probative value of the evidence. The Board finds the Veteran’s statements to be credible as to his in-service experiences and symptoms. Also, his wife’s statement, and the buddy statement provide further credible evidence of the Veteran’s symptoms, and the in-service events, respectively. The VA examiner opined that the Veteran’s low back disorder is at least as likely as not (50% or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran’s subjective diagnoses are consistent with subjective symptoms reported upon MED evaluation in March 2011 and that both subjective and objective examination findings are consistent with lumbar strain with associated left lower extremity radiculopathy. The examiner noted that the Veteran has radicular pain or other signs or symptoms due to radiculopathy. The examiner noted involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve), mild, left lower extremity. The examiner determined that the Veteran did not report symptoms nor did tests indicate sciatica right lower extremity. However, as noted previously, the examiner did not address VA treatments records that assessed paresthesia of both lower extremities since April 2017. The December 2019 rating decision denied entitlement to service connection for sciatica right lower extremity, finding there is no current diagnosis. In the December 2019 SSOC, the RO noted the examination does not show a diagnosis of or symptoms of sciatica of the right lower extremity. The RO then concludes that in the absence of a diagnosed condition, service connection is not established. However, the Board finds that VA treatment records, private records, and lay statements provided further evidence that was not addressed by the examiner. Barr v. Nicholson, 21 Vet. App. 303 (2007). The record evidence, including service treatment records, private medical records, and lay evidence, indicates complaints of and treatment for right lower extremity radiculopathy, including records dated after the April 2014 filing date of the claim on appeal. The medical evidence specifies symptoms of right, left, and bilateral lower extremity radiculopathy at various points in time. A VA treatment record from January 2016 reflects that the Veteran’s complaints were low back and right leg pain of two years duration. In April 2017, a VA assessment included low back pain and increase in paresthesia bilaterally, lower extremities, and the plan was to obtain an electromyogram. In August 2017, the Veteran complained of right leg pain. In January 2018, the Veteran’s complaints included shooting pains into the buttocks, right greater than left, and that the right leg felt weak. Assessments at this time through October 2019 continued to include paresthesia bilaterally, lower extremities. Further, the evidence indicates continuing symptoms of right lower extremity radiculopathy since the in-service jumps, including pain, and tingling in the Veteran’s right lower extremity. Accordingly, finding that the evidence is at least in relative equipoise as to the existence of right lower extremity radiculopathy during the pendency of this appeal, and affording the Veteran the benefit of the doubt, the Board finds it is at least as likely as not that the Veteran has right lower extremity radiculopathy that began during service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for right lower extremity radiculopathy is therefore warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, Associate 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.