Citation Nr: 21002925 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-40 316 DATE: January 19, 2021 ORDER Entitlement to service connection for a back disability, for accrued benefits, is granted. Entitlement to service connection for radiculopathy, right lower extremity, also claimed as sciatic nerve, to include as secondary to a back disability, for accrued benefits, is denied. Entitlement to service connection for radiculopathy, left lower extremity, also claimed as sciatic nerve, to include as secondary to a back disability, for accrued benefits is granted. Entitlement to a total disability rating for individual unemployability (TDIU) for accrued benefits is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s back disabilities are related to his service. 2. The competent evidence is against a finding that Veteran had a diagnosis of radiculopathy, right lower extremity, during the period on appeal. 3. The evidence is in equipoise as to whether the Veteran’s radiculopathy, left lower extremity, also claimed as sciatic nerve, is related to his service. 4. The evidence is in equipoise as to whether the Veteran was been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability, for accrued purposes, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a radiculopathy, right lower extremity, for accrued purposes, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a radiculopathy, left lower extremity, for accrued purposes, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Unfortunately, the Veteran died in March 2019. Given such, prior to discussing the appeal at hand, the Board would be remiss if it did not recognize his outstanding service, where he served in the United States Army on active duty from August February 1994 to February 1997. The Veteran received the National Defense Service Medal. The Veteran was clearly a credit to the United States Army and to his family, and his service to his country is greatly appreciated. In September 2020, the RO granted the request for substitution to the appellant, the mother of the Veteran, in the Veteran’s pending appeal. In October 2018, this appeal was remanded for further development. The Board notes that based on the evidence of record, the Board has re-characterized the appellant’s claim of entitlement to service connection for service connection for invertible disc syndrome due to lumbar stenosis with bulging disc, also claimed as degenerative disc disease, more broadly as a claim of entitlement to service connection for a back disability, for accrued purposes. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Legal Regulations and Principles Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. Thus, if the Secretary determines that the causal disease or disability is, in fact, connected to service, then the claim for benefits for the condition “reasonably encompasses” a claim for that causal disease or disability, such that no additional filing is necessary to initiate a claim for benefits for the causal disease or disability. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Analysis Back Disability and Left Lower Extremity Radiculopathy The Veteran contends that his back disability arose within one year of his discharge of service. However, the Veteran contended that the earliest he was able to be treated for his back condition was about 15 months after his separation, due to the time it took to schedule an appointment. The Veteran contended that since that time he has continued treatment for his back disability. See December 2010 correspondence. The Veteran contended that his back disability was caused by his military occupational specialty (MOS) as a 13 Bravo crew member, in which his duties involved constantly lifting heavy objects and performing strenuous activity for long periods without rest. The Board reviewed the extensive statements and outlines provided by the Veteran, which depict a timeline related to the problems associated with his back condition. To summarize, the Veteran contends that his back condition primarily arose due to his MOS, which required strenuous activities and heavy lifting for long periods of time. Upon review of the evidence, to include the lay statements by the Veteran, the buddy statements provided by the Veteran’s family members, the private medical records, as well as the VA medical records, the Board finds that the evidence is in equipoise as to whether the Veteran’s back disability and radiculopathy of the left lower extremity were related to the Veteran’s service. At the onset, the Board notes that the Veteran’s March 2013 VA examination report reflects that he has intervertebral disc syndrome due to lower lumbar stenosis with bulging disc and sciatic nerve neuropathy of the left lower extremity. The VA examiner also noted that the Veteran has lumbar strain with an onset beginning between 1995 to 1996. Thus, the record establishes that the Veteran has disabilities during the period on appeal. Although the Veteran was provided a general examination in 2012, which did have a section regarding the Veteran’s back, the VA examiner did not provide an opinion addressing whether the Veteran back conditions were related to the Veteran’s service. Likewise, while the 2013 VA examination report was specific to the Veteran’s back condition, no opinion was provided as to whether the Veteran’s back condition is related to the Veteran’s service. Lastly, the Veteran was afforded another VA examination in 2016. Here, while the VA examiner continued the previous diagnoses, the VA examiner only noted that there was “no evidence” that the Veteran had documented in-service treatment of his back. However, the VA examiner also noted that in 1999, the Veteran noted a “history of lower back pain.” Once again, the 2016 VA examiner did not provide an opinion as to whether the Veteran’s back conditions are related to his service. Given such, the Board finds there has not been an adequate VA medical opinion addressing whether the Veteran’s disabilities are related to his service. Nevertheless, the Board notes that Dr. J.W.B., a private doctor, provided a positive opinion as to the Veteran’s back conditions are related to his service. In providing this opinion, Dr. J.W.B. reviewed the Veteran’s entire claims file citing to the Veteran’s lay statements, the buddy statements, as well as the medical evidence of record. Dr. J.W.B. pointed out that the Veteran’s MOS involves “intense physical exertion, which certainly would involve repetitive lifting, carrying, bending, squatting, kneeling and crouching.” Dr. J.W.B. opined that this type of activity would be consistent with the Veteran’s lower back pain experienced while in service. Furthermore, the doctor noted that “[i]t would be quite common for there to be a variable degree of lag time between his military physical demands and the subsequent development of significant lumbar spine and lower extremity pathology.” Thus, the doctor noted that the lower back pain experienced during service, which continued upon his separation from service, were early manifestations of the back disabilities and left lumbar radiculopathy he developed later in his life. As such, based on the thorough review of the record, the doctor opined that the Veteran’s back disabilities are “more likely than not” related to the Veteran’s service; and that the Veteran’s left-sided lumbar radiculopathy is “more likely than not” related to the Veteran’s service. See September 2011 medical opinion; see also July 2014 nexus letter. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Accordingly, upon review of the evidence of record, the Board finds that the evidence is in equipoise as to whether the Veteran’s back disabilities and left lower radiculopathy are related to service. Consequently, the claims should be granted. Radiculopathy, Right Lower Extremity With respect to the Veteran’s claim for radiculopathy of the right lower extremity, the Board notes that the record does not reflect a diagnosis of radiculopathy of the right lower extremity. Specifically, in the March 2013 and the March 2016 VA examination reports, the VA examiner noted that there is no constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness of the right lower extremity. In fact, the VA examiner noted that the only nerve roots involved are L4/L5/S1/S2/S3 (sciatic nerve) of the left lower extremity; and, that the right lower extremity is “not affected.” Given such, the Board concludes that the Veteran does not have a diagnosis of right lower extremity radiculopathy and has not had a diagnosis at any time during the pendency of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Also, the Board has considered the Veteran’s assertions that he experiences pain in his lower right extremity. However, the record does not reflect that he had the requisite training or expertise to offer a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Making a medical diagnosis of right lower extremity radiculopathy requires medical knowledge and training, that, as a layperson, the Veteran has not shown to possess. Particularly, a medical diagnosis of right lower extremity radiculopathy requires medical testing to ascertain which nerve is causing impairment. Thus, the Veteran is not competent to provide a medical diagnosis in this case. Furthermore, as previously noted above, the medical records explicitly state that the Veteran’s right lower extremity is not affected. Significantly, there is no medical opinion to the contrary. Although the Veteran does not have a formal diagnosis of right lower extremity radiculopathy, the Board is cognizant of the holding in Saunders v. Wilkie, which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. 886 F.3d 1356, 1368 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. To the extent the Veteran noted that his right lower extremity radiculopathy caused him pain, the evidence does not reflect the Veteran’s right lower extremity radiculopathy caused functional impairment. As discussed above, the March 2013 and the March 2016 VA examiners both noted that the Veteran’s right lower extremity has no evidence of constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness. The VA examiners noted that the sciatic nerve only caused impaired on the left lower extremity; and, that the right lower extremity is “not affected.” As such, Saunders is not applicable to his case. In light of the above, the Board finds that the probative evidence of record does not demonstrate that the Veteran has radiculopathy of the right lower extremity, and it finds that the first element of service connection has not been met. In the absence of evidence of radiculopathy of the right lower extremity there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223.225 (1992); 38 C.F.R. § 3.385 (2008) (for VA purposes, “impaired hearing will be considered to be a disability” only when hearing loss examination results reach certain auditory thresholds). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). The evidence must show that the Veteran currently has the disability for which benefits are being claimed. Accordingly, the Veteran’s claim for radiculopathy of the right lower extremity is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. TDIU Legal Principles and Regulations A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Analysis In the present case, the Veteran contended that he was unable to maintain employment due to his service-connected disabilities. In this case, in terms of whether the minimum schedular requirements for TDIU are met, the Veteran is in receipt of a 70 percent combined rating since December 2, 2010. Here, the Veteran filed his claim for TDIU on December 2, 2010. As such, for the entire period on appeal, the Veteran has met the schedular requirements. Thus, the issue in this case is whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment. The Veteran contended that his service-connected disabilities have precluded him from following any substantially gainful employment. The Veteran’s employment history includes working in a supply warehouse and as a supply data collector. However, the Veteran contended that he was unable to continue work due to his back pain. The Board notes that the Veteran was granted disability benefits from the Social Security Administration (SSA). SSA found the Veteran disabled partly due to his back disability. The Veteran is service connected for the following other disabilities: migraine headaches, hand disability, left foot disability, tinnitus, right knee condition, left knee condition, residuals of right foot, bilateral plantar fasciitis, and allergic rhinitis with maxillary sinusitis. Based on the evidence of record, the Board finds that the evidence is in equipoise as to whether the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. In an October 2011 VA medical note, the VA examiner noted that the Veteran is unable to function his normal occupational environment due to his back disabilities. The VA examiner noted he cannot lift, climb ladders, stand or walk for no more than 10 to 15 minutes of, and no prolonged keyboard typing. Also,Dr. J.W.B.. opined that the side effects of the Veteran’s pain medication for his back “more likely than not” preclude him from engaging in gainful employment. When determining whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment the Board has not only considered whether any one of the Veteran’s disabilities renders him unemployable, but reinforces that it is a combination of his service-connected disabilities that rendered him unable to secure and follow a substantially gainful occupation. Therefore, the Board finds that based on the Veteran’s lay statements as to the symptomatology of his service-connected disabilities, coupled with the collective impact of the Veteran’s service-connected disabilities, the SSA medical records and determination, and medical opinions of record, which expressly stated that the Veteran cannot work due to his service-connected back disability, all support a finding that the evidence is in equipoise that that the Veteran was unable to secure and follow a substantially gainful occupation by means of his service-connected disabilities. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran’s favor, entitlement to a TDIU is warranted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.