Citation Nr: 21071605 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-22 741 DATE: November 30, 2021 ISSUE Entitlement to service connection for a neurologic disability of the bilateral lower extremities, to include sciatica, to include as due to service-connected lumbosacral strain. REMANDED Entitlement to service connection for a neurologic disability of the bilateral lower extremities, to include sciatica, to include as due to service-connected lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1974 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran's claim for entitlement to service connection for "leg and groin pain claimed as possible sciatica" was denied in November 2012. The Veteran submitted a timely Notice of Disagreement (NOD) in December 2012. The Veteran was issued a statement of the case (SOC) in March 2014. Following the submission of a VA Form 9, the Veteran's claim was certified to the Board. A February 2016 Board Decision reframed the issue as described on the title page. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). The claim was then remanded for further development and adjudication. The claim returned to the Board and it was denied in March 2018. The Veteran, through her Attorney, appealed the claim to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) from January 2019, the Court vacated the portion of the March 2018 Board Decision that denied the Veteran's claim and remanded the issue back to the Board. The Board then remanded the Veteran's claim in September 2019, August 2020, January 2021, and most recently in June 2021, for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Despite that finding, the Board again finds that additional evidentiary development is required before the claim on appeal is adjudicated. Entitlement to service connection for a neurologic disability of the bilateral lower extremities, to include sciatica, to include as due to service-connected lumbosacral strain is remanded. The Veteran has claimed that she has a neurological disability to the bilateral lower extremities, which may be due to or aggravated by her service-connected lumbosacral strain. The Veteran has asserted that she has leg pain, possibly sciatica, and that she also has pain in the groin area. The Veteran's Attorney has also asserted that the Veteran believes that her pain, which she experiences two to three times a week, to be related to her service-connected lumbosacral strain with lumbago. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Turning to the available evidence, VAMC records from November 2010 show that the Veteran complained of back pain that radiated to the back of the calf but denied tingling or numbness in the lower extremities. In a November 2011 VA examination, the Veteran reported no radiation of pain or tingling in the legs. In July 2013, the Veteran was administered a Nerve Conduction Study where no denervation was noted. The tibial and peroneal nerves were noted as normal and sensory nerve conduction study of the sural nerves was also normal. Accordingly, it was determined that there was no electrical evidence of radiculopathy or neuropathy in either leg. In an April 2014 VA examination, the Veteran reported that her pain radiated in the left groin and then across the anterior left thigh down to the lateral surface of the left thigh as far as the left knee. The examiner noted that mixed radicular dermatomes in the pain were indicated by the patient and therefore a radicular component to the back pain was not certain. The examiner noted the Veteran's complaints in the radiculopathy section of the examination report, characterizing them as mild radiculopathy in the left leg. No radiculopathy in the right leg was noted. A May 2016 VA examination diagnosed left ilioinguinal neuropathy. The examiner noted that the Veteran's left ilioinguinal neuropathy caused the pain in the groin and not the leg. The examiner clarified that neuropathy and radiculopathy were different concepts and that the clinical examination was suggestive of left ilioinguinal neuralgia causing left groin pain. The examiner found that the Veteran had a positive straight leg raise examination, which suggested mild left sciatica, consistent with the Veteran's back arthritis at the L5-S1 spine level. The Veteran's sciatica was noted as normal with no motor weakness noted. The May 2016 VA examiner then opined that it was less likely than not that the left inguinal pain and left posterior leg pain had its onset due to any incident in service. The examiner explained that the Veteran's left groin pain was in the distribution of the left ilioinguinal nerve. The Veteran has a neuralgia in that nerve distribution causing pain on the medial side of the groin which was not related to service and the Veteran maintained that the nerve pain occurred years after separation from service. The examiner opined that although the Veteran had some symptomatology consistent with sciatica, that the Veteran was at risk for that condition due to her back arthritis, which was not a result of the incident in service. In a June 2016 VA addendum opinion, the examiner noted that left groin pain, related to the left ilioinguinal nerve was neuropathy and not radiculopathy. The examiner noted that neuropathy is local and does not come from the spinal roots in the back. Therefore, the pain was not related to the service-connected back disability. The examiner instead noted that the Veteran's neuropathy was due to local problems in the groin or vaginal area and there was no neuropathic pain in the groin area noted in the service medical records. The June 2016 examiner also wrote that the Veteran had posterior leg pain consistent with left sciatica which was due to spinal root problems related to the natural advancement of back arthritis. The examiner opined that one incident of low back injury, as mild as the Veteran's, did not cause advancing arthritis over the years. Rather, the Veteran's arthritis occurred at its own natural rate and was not due to any injury incurred in service. The examiner further indicated that although the Veteran complained of recurrent back pain in the report of medical examination for separation, it was not clear what she meant in that report. It was also highlighted that the Veteran's service medical records showed the Veteran complained of sacral pain after giving birth vaginally but that nerve roots in the sacrum do not contribute to the groin or the posterior leg pain that the Veteran had on examination. In a December 2019 Disability Benefits Questionnaire, it was noted the Veteran presented with clinical signs of sciatica in the diagnosis section. The examiner determined the Veteran had mild incomplete paralysis of the sciatic nerve in the left lower extremity, and mild incomplete paralysis of the femoral nerve in the same extremity. No abnormalities for the right lower extremity were noted. The examiner noted that following radiological evaluation of the spine and left hip, that the Veteran was noted to have interval progression of multilevel degenerative disc disease in the spine at the L3-L4 through L5-S1 levels, and an enthesophyte on the left femoral head which could account for some of the Veteran's leg pain and weakness, and that there was bilateral asymmetrical sacroiliitis of unknown etiology. The examiner then opined that the Veteran's lower extremity neurological disorder was less likely than not related to the service-connected lumbar strain disability. The examiner noted that the Veteran has signs and symptoms of left leg sciatica which was related to progressive arthritis of the spine. The examiner also noted that the Veteran's incident in service of lumbosacral strain did not create the present arthritis but rather the Veteran had progressive arthritis due to the natural progression of aging or new disease. In June 2020, a VA medical opinion found that the Veteran's worsening left sciatica was due to the natural progression of arthritis and that the arthritis was not due to the service-connected lumbago, lumbar spine injury, or knee disability. The Board noted in January 2021 that this medical opinion did not contain a rationale. Therefore, in January 2021 the claim was remanded by the Board for a VA opinion regarding direct service connection and secondary service connection for left leg pain, diagnosed as sciatica or radiculopathy; groin pain, diagnosed as ilioinguinal neuropathy or neuralgia; and mild incomplete paralysis of the femoral nerve in the left lower extremity. In a February 2021 VA examination, the Veteran's sciatic nerve was marked as normal bilaterally. The examiner also found that the Veteran did not have a peripheral nerve condition. The Veteran reported that a few years prior to the examination she experienced shooting and radiating pain from the back to left knee, which had subsided. On examination, the Veteran denied any radicular pains. The Veteran stated that she started having intermittent left groin ache without any radiation, tingling, or numbness since the 1980s after service. The Veteran denied any fall or injury to the left groin or hip after service. The February 2021 VA examiner then opined that there was no current diagnosis of radiculopathy, left sciatica, left femoral radiculopathy, or right lower extremity condition. The examiner noted that according to the Veteran's reported history, the previously reported groin pain and shooting pains to the legs were after service. There was a notation of the Veteran's job as a postal worker involving carrying mail and lifting heavy mail. The examiner also opined that the left groin pain was biomechanically unrelated to service-connected lumbar strain. Most recently, the claim returned to the Board in June 2021, where the claim was remanded again. The Board highlighted the procedural and diagnostic history of the Veteran's disability, to include those diagnoses that had previously been confirmed. The Board then noted that, although the February 2021 VA examiner denied that the Veteran had a current diagnosis, the Veteran had been diagnosed with disabilities during the appeal period. Importantly, the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). As such, the Board remanded the claim for an opinion should be issued regarding whether those diagnosed conditions were related to service or a service-connected disability even though they were not diagnosed at the time of the February 2021 VA examination. Following the most recent remand, the Veteran was scheduled for a VA examination in July 2021. The Veteran was seen in person, and the examiner indicated that they reviewed the Veteran's claims file. During the exam, the Veteran reported that a "few years ago she had shooting/radiating pain from her back to left knee which has subsided now." She also reported that she was "having intermittent left groin ache with out any radiation or tingling or numbness." The examiner then denied that the Veteran had a current disability of a peripheral nerve condition or peripheral neuropathy. The examiner wrote that after reviewing history, physical exam, [claims file], VA treatment records and medical textbook, clinically as well as by EMG study there is no objective evidence of neuropathy of lower body including both lower extremities as per current exam. EMG study done on [June 20, 2021] at Detroit VA hospital is normal without neurological abnormality of lower body including both lower extremities and clinically also there is no objective evidence of neuropathy. As such, the examiner wrote that the Veteran did not have a current diagnosis. The RO, correctly, requested a subsequent addendum opinion from the same examiner. In that request, the RO highlighted the fact that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. See, McClain, Id. The same examiner from July 2021 provided the addendum opinion in November 2021. The examiner wrote As I mentioned in my last opinion that after reviewing [relevant evidence] there was no objective evidence of neuropathy of lower body including both lower extremities and ilioinguinal neuralgia or neuropathy on my last exam. I can not opine regarding previous diagnosis which was done by different provider and I could not comprehend their exam so please refer to provider who diagnosed those neurological conditions. Thus, the examiner continued to deny a current diagnosis, as per their own last exam. The examiner also indicated that they are unable to provide an opinion, and that they were unable to "comprehend" the other examinations. The Board therefore finds the July 2021 VA examination and the subsequent November 2021 addendum opinion inadequate, as the examiner indicated an inability to provide the opinion requested, despite their apparent review of the claims file. Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes). Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that she is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran's claim must be forwarded to a different VA examiner for an addendum opinion. That examiner should be a VA neurologist, or other suitable professional, and an examination should be scheduled if deemed necessary. That examiner must review the Veteran's file, to include the confirmed diagnostic history, before providing an opinion on secondary service connection. That opinion must include discussion of possible aggravation, and a rationale must be included. The examiner is also reminded that the presence of a chronic disability originating in service at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. See, McClain, Id. As it relates to the Veteran's right lower extremity specifically, to which the Veteran has generally claimed causes her pain, the examiner is requested to provide an opinion pursuant to Saunders. In Saunders v. Wilkie, the Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to a VA neurologist, or other suitable specialist, who has not previously examined the Veteran in conjunction with this claim, for a medical opinion that addresses whether any neurologic disability of the lower extremities is related to service or caused or aggravated by the Veteran's service-connected disabilities, to include her lumbosacral strain. The Veteran should be scheduled for a VA examination if deemed necessary. The examiner must review the claims file and should note that review in the report. The examiner should provide a complete rationale for all opinions provided. The examiner should address the following: (a.) Diagnose all current and/or previous lower extremity neurologic disabilities found during the course of the appeal and specify the nerves involved. The examiner is reminded that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. (b.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left leg pain, previously diagnosed as sciatica and radiculopathy, is due to or the result of the service-connected disabilities, to include the lumbosacral strain. (c.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left leg pain, previously diagnosed as sciatica and radiculopathy, has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include the lumbosacral strain. (d.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's groin pain, previously diagnosed as ilioinguinal neuropathy or neuralgia, is due to or the result of the service-connected disabilities, to include the lumbosacral strain. (e.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's groin pain, previously diagnosed as ilioinguinal neuropathy or neuralgia, has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include the lumbosacral strain. (f.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's previously diagnosed mild incomplete paralysis of the femoral nerve in the left lower extremity is proximately due to or the result of the service-connected disabilities, to include the lumbosacral strain. (g.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's previously diagnosed mild incomplete paralysis of the femoral nerve in the left lower extremity has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include the lumbosacral strain. (h.) Opine as to whether the Veteran currently has a disability or diagnosis of the right lower extremity resulting in functional impairment, and if so, whether it is at least as likely as not (50 percent or greater probability) that any disability resulting in functional impairment of the right lower extremity is related to the Veteran's service or any event, injury, or disease during service. (i.) Opine as to whether the Veteran currently has a disability or diagnosis of the right lower extremity resulting in functional impairment, and if so, whether it is at least as likely as not (50 percent or greater probability) that any disability resulting in functional impairment of the right lower extremity has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include the lumbosacral strain. **Please note new case law: pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). 2. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, she and her Attorney should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her Attorney should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.