Citation Nr: 21074155 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-48 147 DATE: December 14, 2021 ORDER Entitlement to service connection, to include on a secondary basis, for left leg numbness is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for a service-connected lumbar spine disability is remanded. Entitlement to an initial rating in excess of 10 percent for a service-connected cervical spine disability is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his left leg numbness is etiologically related to his active service and to his service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for entitlement to service connection for left leg numbness have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2011 to February 2017. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a Board hearing; however, he withdrew his request for a Board hearing in July 2021. Entitlement to service connection for left leg numbness A February 2013 service treatment record notes that the Veteran had low back pain radiating to his right buttocks. A February 2016 service treatment record notes that the Veteran reported a numb sensation in his lateral left thigh and lower leg and that he could not feel himself slapping his leg when the numbness occurred. The Veteran reported symptoms occurred intermittently while he was sleeping. At the time of examination, he had normal sensation but reported that his sensory disturbances had been occurring for more than 6 weeks. A March 2016 service treatment record noted that the Veteran had lumbar pain bilateral with left sided radiculopathy. The record noted that symptoms had been present for over 6 months and that the Veteran had occasional loss of sensation reported in his left lateral lower extremity. Straight leg raise testing was negative bilaterally. A provisional diagnosis of lumbago with sciatica, left side, was noted. A March 2016 magnetic resonance imaging (MRI) noted that the Veteran had a history of chronic low back pain and left leg numbness. The Veteran was afforded a VA examination for his claimed left leg numbness in May 2017. The VA examiner determined that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. The Veteran reported that he had onset of symptoms in 2015 when he developed numbness and tingling on the sides of both legs coming from his back. The Veteran reported that the condition stayed the same since onset and was especially worse when he sits for a while. The Veteran reported symptoms of severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. Muscle strength testing, reflex examination, and sensory examination were all normal as was the Veteran's gait. Special tests were not indicated and performed for median nerve evaluation, including electromyography studies. The VA examiner concluded that there was no diagnosis because there was no pathology to render a diagnosis. A January 2019 VA examination for the Veteran's service-connected back disability noted that Straight leg raising tests were positive bilaterally suggesting radiculopathy. The Veteran reported radicular pain or signs or symptoms due to radiculopathy and the Veteran had mild intermittent pain and mild numbness bilaterally. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that entitlement to service connection for left leg radiculopathy is warranted. The Board acknowledges that the May 2017 VA examiner determined that the Veteran did not have a left leg disability. However, service treatment records and post-service records show that the Veteran regularly reported left leg numbness. In addition, the January 2019 VA examiner noted that the Veteran had radicular signs and symptoms and that straight leg raising tests were positive suggesting the Veteran had radiculopathy. Accordingly, the Board finds that the evidence is at least in equipoise and supports a finding that the Veteran had radiculopathy of his left lower extremity. Service treatment records show that the Veteran's reports of left leg numbness began during service. Moreover, the January 2019 VA examiner's report also indicates that the left leg numbness was secondary to the Veteran's service-connected lumbar spine disability. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran's left leg numbness is etiologically related to his service and his service-connected low back disability. The Veteran's claim for left leg numbness is granted. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for a service-connected lumbar spine disability is remanded. 2. Entitlement to an initial rating in excess of 10 percent for a service-connected cervical spine disability is remanded. The Veteran was issued a statement of the case (SOC) in July 2017. Since the issuance of the SOC, additional information, to include recent VA examinations dated January 2019 were associated with the claims folder after the appeal was certified to the Board in May 2018. The additional information is relevant to the Veteran's increased initial rating claims on appeal for service-connected lumbar spine and cervical spine disabilities and have not been considered by the RO as required under 38 C.F.R. § 19.31 (b)(1). The Board notes that initial RO review is automatically waived for evidence submitted by the Veteran or his representative if the Veteran's appeal to the Board is dated after February 2, 2013, as it is in this case. However, this automatic waiver does not apply to VA-generated evidence, such as VA examination reports that were not submitted by the Veteran. 38 U.S.C. § 7105(e). In an October 2021 letter, the Board informed the Appellant that additional evidence had been received that was not previously considered in a decision by the Agency or Original Jurisdiction. The Appellant was informed that he had a right to have the Agency of Original Jurisdiction review the evidence before the Board does, but if he wished, he may waive that right by submitting a waiver in writing. The Board informed the Appellant that if he did not respond within 45 days of the date of the notice letter, the Board would remand the appeal to the Agency of Original Jurisdiction for review. The Appellant did not respond to the October 2021 letter. Therefore, in accordance with the October 2021 letter, the case must be remanded for initial review of the additional evidence by the Agency of Original Jurisdiction. A supplemental statement of the case is needed for the issues of entitlement to increased initial ratings for service-connected lumbar spine and cervical spine disabilities. 38 C.F.R. § 19.31. The matters are REMANDED for the following action: (Continued on the next page) Review all evidence received since the last adjudication of the claims and readjudicate the Veteran's remaining claims on appeal. If any claim on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi, 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.