Citation Nr: 21069840 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 10-07 288 DATE: November 19, 2021 ORDER Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to service-connected residuals of coccyx injury, is denied. FINDING OF FACT The preponderance of the evidence does not demonstrate that the Veteran's radiculopathy of the right lower extremity had its onset during active duty service, manifested within one year of separation from service, or was otherwise etiologically related to service; nor does it show that his radiculopathy of the right lower extremity was proximately due to, the result of, or aggravated by his service-connected residuals of coccyx injury. CONCLUSION OF LAW The criteria for entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to service-connected residuals of coccyx injury, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1975 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Jurisdiction of the case is now before the RO in Portland, Oregon. The Veteran testified before a Veterans Law Judge (VLJ) at an October 2010 videoconference hearing. A transcript of this hearing is of record. In June 2021, the Veteran was notified that the VLJ who held his October 2010 hearing was no longer employed by the Board. The Veteran did not respond to the offer for another hearing. 38 C.F.R. § 20.604. This case has an extensive procedural history. Most recently, in January 2019, the Board remanded the issue on appeal for additional development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. In compliance with the January 2019 Board remand, the Board asked the Veteran's representative for a copy of a June 2017 informal hearing presentation (IHP) that was missing from the Veteran's claims file. In a November 2021 VA email correspondence, the Veteran's representative indicated that the representative was unable to locate the June 2017 IHP. The Board finds that the necessary steps have been taken to try to produce a copy of this June 2017 IHP. Moreover, since June 2017, the record shows that the Veteran's representative has been provided multiple opportunities to submit an argument in support of the Veteran's appeal. See November 2018 and May 2021 IHP. For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. Service Connection 1. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to service-connected residuals of coccyx injury The Veteran asserts that his current right lower extremity symptoms developed during service, or alternatively, that his right lower extremity problems were caused or aggravated by his service-connected residuals of coccyx injury. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as other organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include peripheral nerves conditions, such as peripheral neuropathy. Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The question before the Board is whether the Veteran's radiculopathy of the right lower extremity is etiologically related to service or a service-connected disability. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for radiculopathy of the right lower extremity, to include as secondary to service-connected residuals of coccyx injury, is warranted. The Veteran has a current diagnosis for radiculopathy of the right lower extremity. See October 2019 VA examination. The Veteran's service treatment records (STRs) document the Veteran's complaints and treatment associated with his right lower extremity. In August 1975, the Veteran reported having a history of a "knot" on the right leg and pain on dorsiflexion of the toes. The Veteran was diagnosed with fibroma. An October 1975 x-ray of the right knee was negative. In July 1976, the Veteran complained of having a "knot" on the right leg for the past six months. He indicated that his whole leg was hurting. He was diagnosed with chronic tibia discomfort. A July 1976 x-ray report of the right tibia revealed that the Veteran's physical examination was within normal limits, and the right tibia series was negative. Two days later, the Veteran underwent an x-ray of his right lower leg and ankle after he fell in the shower in the barracks. The x-ray was negative. The Veteran was diagnosed with a right ankle sprain. See July 1976 STR. In October 1976, the Veteran complained of having a "knot" in the right knee for the past year. The Veteran was diagnosed with muscle strain. In December 1976, the Veteran sought treatment for pain in the right leg just below the knee joint for the past nine months. The treating physician noted that the Veteran had been to the clinic with the same complaints on numerous occasions and that the physical examinations and x-rays of the tibia had always been within normal limits. The Veteran was diagnosed with right knee pain, but the physician noted that there were no objective signs. A December 1976 right knee x-ray was within normal limits. According to May 1977 STRs, the Veteran injured his coccyx region when he fell on a windowsill. He was diagnosed with probable contusion in the coccygeal region. Eight days after the injury, the Veteran reported that his pain in the coccygeal region had increased, he had pain in his upper legs, and he was unable to sit or walk comfortably. At a March 1978 separation examination, the Veteran had normal spine, lower extremities, and neurologic clinical evaluation results. VA and private treatment records starting in 1984 document the Veteran's neurological complaints related to his right lower extremity. At a September 1984 VA clinic visit, the Veteran reported having numbness intermittently in his bilateral lower extremities. The impression was recurring spinal spasms in lumbosacral region without neurological deficits. In an August 1990 letter, the Veteran's private treating physician indicated that the Veteran was involved in a motor vehicle accident (MVA) in December 1989. The Veteran continued to have numbness and tingling in the right leg. At a February 1991 VA clinic visit, the Veteran reported that his chronic low back and neck pain began during service when he fell on a windowsill and later when he fell on a heating radiator in 1985. He said that he experienced associated pain radiating throughout the length of spine and into his arms, legs, and hips. At an August 1995 private clinic visit, the Veteran reported having bilateral hip pain with lower extremity radiation. The private treating physician noted that the Veteran was status post MVA in December 1994, who had neck, low back, and bilateral hip pain and lower extremity radiation. Subsequent VA treatment records in 2000 to 2019 document the Veteran's complaints of chronic low back pain with radiation to his legs. The VA treatment records included the Veteran's reports that his radiating right leg pain had been present since 1977 and that his radiating pain was worse on the right than the left side. However, those same VA treatment records included conflicting findings of whether the evidence supported a finding of lumbar radiculopathy, neuropathy, or stenosis. See November 2000, April 2001, March 2004, April 2005, January 2011, July 2013, February 2014, January 2015, May 2017, and October 2019 VA treatment records. First, the Board notes that other organic diseases of the nervous system, including peripheral nerves conditions, are a chronic disease under 38 C.F.R. § 3.309(a). The Board has considered whether the Veteran is entitled to presumptive service connection under 38 C.F.R. § 3.307(a)(3). The Veteran's STRs document the Veteran's complaints of right lower extremity problems. Following the Veteran's report of pain in the upper legs in May 1977, during two subsequent clinic visits, the Veteran continued to report his coccygeal area pain, but he did not report any further pain or other symptoms in his lower extremities. Notably, at his March 1978 separation examination, his spine, lower extremities, and neurologic clinical evaluation results were normal. Available treatment records do not document treatment for right lower extremity neurological problems, characterized as intermittent numbness in the bilateral lower extremities, until 1984, more than six years after his discharge from service. See September 1984 VA treatment record. Furthermore, the Veteran's right lower extremity symptoms were first diagnosed as lumbar radiculopathy in August 2013. See August 2013 VA treatment record. There is no clinical evidence that the Veteran's right lower extremity radiculopathy existed prior to 1984. Thus, the Board finds that the evidence does not show that the Veteran's right lower extremity radiculopathy manifested within one year of separation from service; nor does it show that he had continuous symptoms of radiculopathy following service. Accordingly, the Board concludes that presumptive service connection on the Veteran's radiculopathy as a chronic disease is not warranted. Nevertheless, the Board must consider whether the Veteran is entitled to service connection for right lower extremity radiculopathy on a direct basis. On that basis, the Board finds that a November 2020 VA opinion provides the most probative evidence. The November 2020 VA examiner opined that the Veteran's right lower extremity radiculopathy was less likely than not incurred in or caused by his active duty service, to include the Veteran's falling and injuring an area above his right calf or right knee. In providing a rationale, the November 2020 VA examiner found that the Veteran's March 1978 separation examination showed normal spine and lower extremities evaluations, and there was no report of pain, numbness, or tingling in the right lower extremity. The November 2020 VA examiner found that the Veteran's right lower extremity radiculopathy was caused by impingement or compression of the right sciatic nerve at the lumbosacral region. Finding that there was no evidence of etiology of current right lower extremity radiculopathy due to injury of right calf or right knee, the November 2020 VA examiner explained that the right calf or right knee are too distal to cause impingement of the sciatic nerve at the lumbosacral vertebral level. Accordingly, the Board concludes that the Veteran is not entitled to service connection for right lower extremity radiculopathy on a direct basis. Finally, the Board must address whether the Veteran is entitled to service connection for right lower extremity radiculopathy on a secondary basis. On that basis, the Board finds that a November 2020 VA opinion provides the most probative evidence. The November 2020 VA examiner opined that the Veteran's right lower extremity radiculopathy was less likely than not proximately due to, the result of, or aggravated by his service-connected residuals of coccyx injury. In providing a rationale, the November 2020 VA examiner repeated his finding that the Veteran's right lower extremity radiculopathy was caused by impingement or compression of the right sciatic nerve at the lumbosacral region. Further, the November 2020 VA examiner explained that the sciatic nerve is formed from the L4 to S3 segments of the sacral plexus, a collection of nerve fibers that emerge from the sacral part of the spinal cord. The November 2020 VA examiner noted that the coccygeal nerve is not part of the nerve fibers forming the sciatic nerve. Thus, the November 2020 VA examiner determined that the injury to the coccyx less likely caused or aggravated the right lower extremity radiculopathy. Accordingly, the Board concludes that the Veteran is not entitled to service connection for right lower extremity radiculopathy on a secondary basis. The only evidence in support of the Veteran's contentions is his own lay assertions. Although lay evidence may be competent to establish a medical etiology or nexus, the Veteran has not established that he has the requisite specialized knowledge or training to relate his right lower extremity radiculopathy to his active duty service or a service-connected disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the Veteran's lay assertions are not competent to provide an etiological opinion for his right lower extremity radiculopathy, and thus, they offer little probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for right lower extremity radiculopathy on a direct, secondary, or presumptive basis. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.