Citation Nr: 21067289 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-21 116 DATE: November 3, 2021 ORDER Service connection for left lower extremity radiculopathy is granted. Service connection for the Veteran's left hip disability, as currently diagnosed, is granted. Service connection for abnormal gait is granted. REMANDED The issue of entitlement to a rating higher than 20 percent for the Veteran's lumbar spine disability is remanded. The issue of entitlement to service connection for back spasms is remanded. FINDINGS OF FACT 1. The Veteran has a diagnosis of left lumbar radiculopathy, secondary to his service-connected lumbar spine disability. 2. The Veteran has a diagnosis of degenerative joint disease of the left hip, and the evidence establishes that he has had left hip symptoms since service. His current left hip disability is presumed to have been incurred in service. 3. The evidence shows that the Veteran has abnormal gait secondary to his service-connected left hip disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left lower extremity radiculopathy as secondary to the service-connected lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for the Veteran's left hip disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for abnormal gait as secondary to the service-connected left hip disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) from March 2013 and May 2014 rating decisions. The Veteran testified at a Board hearing in July 2021. 1. Service connection for left lower extremity radiculopathy is granted. The May 2014 rating decision and April 2017 statement of the case indicate that the present appeal stems from a July 2013 claim. Nevertheless, a review of the record reflects that, along with his July 2013 claim, the Veteran submitted a statement that can be construed as a timely notice of disagreement regarding a prior March 2013 rating decision that denied service connection for left hip pain, to include the Veteran's complaints of low back pain radiating to his left leg. Additionally, the Veteran submitted new details about his history and symptoms. Based on this, the Board finds that the March 2013 denial of service connection for left hip pain did not become final. Accordingly, the Board finds that the present appeal stems from the initial claim of service connection for left hip pain, which was received on November 4, 2010. 11/04/2010, VA 21-4138 Statement in Support of Claim. As there is no prior final denial for this issue, the question of whether new and material evidence has been received is not for consideration. The Veteran seeks service connection for a left lower extremity disability, described as a sciatic nerve condition. 07/30/2013, VA 21-526EZ, Fully Developed Claim & VA 21-4138 Statement in Support of Claim. The evidence shows complaints of low back pain radiating to the left lower extremity. 11/04/2010, VA 21-4138 Statement in Support of Claim. Nevertheless, there is conflicting evidence as to whether the Veteran has radiculopathy. In this regard, an August 2011 VA examiner acknowledged that the Veteran's history of low back pain with radiation could be a manifestation of possible early radiculopathy but declined to enter a diagnosis of radiculopathy, based on recent EMG testing that produced normal results. 01/03/2011, VA examination. In contrast, more recent VA treatment records from 2013, forward, show a diagnosis of lumbar radiculopathy. 03/01/2019, CAPRI, at 10, 125 & 237. These more recent records establish that the Veteran has a current diagnosis of left lower extremity radiculopathy. As this diagnosis is secondary to the Veteran's service-connected lumbar spine disability, service connection is granted. 2. Service connection for the Veteran's left hip disability, as currently diagnosed, is granted. The May 2014 rating decision and April 2017 statement of the case indicate that the present appeal stems from a July 2013 claim. Nevertheless, a review of the record reflects that, along with his July 2013 claim, the Veteran submitted a statement that can be construed as a timely notice of disagreement regarding a prior March 2013 rating decision that denied service connection for left hip pain. Additionally, the Veteran submitted new details about his history and symptoms. Based on this, the Board finds that the March 2013 denial of service connection for left hip pain did not become final. Accordingly, the Board finds that the present appeal stems from the initial claim of service connection for left hip pain, which was received on November 4, 2010. 11/04/2010, VA 21-4138 Statement in Support of Claim. As there is no prior final denial for this issue, the question of whether new and material evidence has been received is not for consideration. As discussed above, the Board has granted service connection for lumbar radiculopathy of the left lower extremity. The Veteran, however, is claiming service connection for a separate left hip disability. 07/30/2013, VA 21-526EZ, Fully Developed Claim (listing the left hip as a standalone issue, separate from his left lower extremity pain secondary to his lumbar spine disability). The medical evidence shows a diagnosis of degenerative arthritis of the left hip, with a total hip joint replacement in 2013. 03/01/2019, CAPRI, at 128 & 132. The Veteran has reported a history of low back and left hip pain since service and explained that his hip symptoms were initially thought to be manifestations of his lumbar spine disability. 03/01/2019, CAPRI, at 128; July 2021 Board hearing transcript. The Veteran has also submitted a statement from a fellow servicemember who served alongside him for approximately three years, beginning in late 1988 or early 1989. This servicemember indicated that he has been aware of the Veteran's low back and left hip issues during the entire time that they have known each other, adding that the Veteran's conditions have worsened through the years they have remained in contact. 01/13/2019, Buddy/Lay Statement. The Board finds that the Veteran meets the criteria for service connection of his left hip disability. Certain chronic diseases, to include arthritis, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In this case, the evidence shows that the Veteran has a diagnosis of left hip arthritis, and he has submitted competent and credible testimony that establishes a continuity of hip symptoms since service. Under these circumstances, his current left hip disability of arthritis is presumed to have been incurred in service. Service connection on a presumptive basis for a chronic disease, degenerative arthritis of the left hip, is granted. 3. Service connection for abnormal gait is granted. The Veteran raised the issue of an abnormal gait in a July 2013 statement. The March 2013 rating decision denied service connection for abnormal gait based on a finding that the evidence did not show a diagnosis for this condition. This finding appears to be based on an August 2011 VA opinion, in which the examiner reported that he noted no paraspinal muscle spasm. At his July 2021 Board hearing, the Veteran testified that he experiences spasms on a biweekly basis. The Veteran initially asserted that his abnormal gait was due to his back spasms. 07/30/2013, VA 21-4138 Statement in Support of Claim. At his Board hearing, however, he suggested that his abnormal gait could be due to his left hip disability. A review of the record shows that, in April 2014, a VA examiner opined that the Veteran's abnormal gait is at least as likely as not the result of the degenerative joint disease of the left hip. As discussed above, service connection for the Veteran's left hip degenerative joint disease has been granted. As the evidence establishes that the Veteran's abnormal gait is secondary to his now service-connected left hip disability, service connection for the abnormal gait is granted. REASONS FOR REMAND 1. The issue of entitlement to a rating higher than 20 percent for the Veteran's lumbar spine disability is remanded. The Veteran seeks a higher rating for his service-connected lumbar spine disability, which is characterized as lumbar spine degenerative joint disease. His disability is currently rated as 20 percent disabling, from November 4, 2010, under Diagnostic Code 5242. The May 2014 rating decision and April 2017 statement of the case indicate that the present appeal stems from a July 2013 claim. Nevertheless, a review of the record reflects that, along with this July 2013 claim, the Veteran submitted a statement that can be construed as a timely notice of disagreement regarding a prior March 2013 rating decision that assigned a higher rating of 20 percent for the Veteran's lumbar spine disability. As this appeal was pending at the time of the July 2013 claim, the Board finds that the present appeal extends all the way back to November 4, 2010, when the prior claim of an increased rating for the lumbar spine was received. 11/04/2010, VA 21-4138 Statement in Support of Claim. The Veteran last underwent a VA examination for his back in June 2015. See 03/01/2019, CAPRI, at 120. At his July 2021 Board hearing, the Veteran testified that his back condition had progressively worsened, reported on going treatment, and mentioned that his doctors had discussed the need for back surgery. This testimony suggests that the Veteran's condition has worsened since his last VA examination. 38 C.F.R. § 3.327(a). A new VA examination is therefore necessary. 2. The issue of entitlement to service connection for back spasms is remanded. The May 2014 rating decision and April 2017 statement of the case indicate that the present appeal stems from a July 2013 claim. Nevertheless, a review of the record reflects that, along with his July 2013 claim, the Veteran submitted a statement that can be construed as a timely notice of disagreement regarding a prior March 2013 rating decision that denied service connection for back spasms. Additionally, the Veteran submitted new details about his history and symptoms. Based on this, the Board finds that the March 2013 denial of service connection for back spasms did not become final. Accordingly, the Board finds that the present appeal stems from the initial claim of service connection for back spasms, which was received on November 4, 2010. 11/04/2010, VA 21-4138 Statement in Support of Claim. As there is no prior final denial for this issue, the question of whether new and material evidence has been received is not for consideration. The Veteran raised the issue of back spasms in a November 2010 statement. 11/04/2010, VA 21-4138 Statement in Support of Claim. The March 2013 rating decision denied service connection for back spasms based on a finding that the evidence did not show a diagnosis for this condition. This finding appears to be based on an August 2011 VA opinion, in which the examiner reported that he noted no paraspinal muscle spasm. In his July 2021 Board hearing, the Veteran testified that he experiences spasms on a biweekly basis. He also indicated that his spams decreased after his hip replacement. This testimony provides a strong indication that the Veteran's reported back spasms are manifestations of his service-connected lumbar spine and left hip disability. As this is ultimately a medical determination, the appropriate course of action is to request a VA opinion on the matter, to include consideration of whether the Veteran's back spasms are manifestation of a disability other than the service-connected lumbar spine and left hip disabilities. These matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should estimate any additional functional loss in terms of additional degrees of limited motion of the lumbar spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's descriptions as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided **The examiner must include a discussion of the Veteran's reported back spasms. The examiner is to discuss the nature and etiology of any such spasms, to include consideration of whether they are manifestations/complications of the Veteran's service-connected lumbar spine or left hip disabilities, or of an altogether separate disability. If the spams are found to be unrelated to the service-connected disabilities, the examiner is to opine whether they are at least as likely as not as related to service. The Veteran has stated that he has experienced spasms since service.** The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.