Citation Nr: 21008643 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 19-04 928 DATE: February 17, 2021 ORDER Entitlement to service connection for bilateral lower extremity radiculopathy, as secondary to the Veteran’s service-connected lumbar spine disability, is granted. REMANDED Entitlement to service connection for migraines as secondary to the Veteran's service-connected cervical spine is remanded. Entitlement to a temporary total evaluation for surgical convalescence due to the Veteran's cervical spine surgery is remanded. FINDING OF FACT The evidence is at least in equipoise regarding whether the Veteran has bilateral lower extremity radiculopathy which is etiologically related to her service-connected lower back disability. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bilateral lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1994 to July 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision from a Department of Veteran’s Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). In her January 2019 substantive appeal (VA Form 9), the Veteran indicated that she was appealing the issues of “service connection for migraine” and “temporary total evaluation.” The issues listed in the SOC were entitlement to service connection for a right leg condition secondary to the service-connected lower back disability, entitlement to service connection for a left leg condition secondary to the Veteran’s service-connected lower back, entitlement to service connection for migraines, and entitlement to a temporary total evaluation for treatment requiring convalescence or hospital treatment in excess of 21 days. 38 C.F.R. § 20.202, in effect at the time the substantive appeal was filed in this case, provided that a substantive appeal consists of a properly completed Form 9 or correspondence containing the necessary information and that arguments as to the issues being appealed made are to be construed “in a liberal manner.” Given the terminology used in the SOC and other documents, namely the Veteran’s Appellant’s Brief, the Board finds that the Veteran indicated that she intended to appeal the denial of service connection for her leg conditions. Moreover, timely filing of a substantive appeal is not jurisdictional. Percy v. Shinseki, 23 Vet. App. 37, 4245 (2009). Given the context of the language used in the substantive appeal, the rationale underlying Percy, the February 2021 hearing before the undersigned indicating that the issue of entitlement to service connection for bilateral lower extremity radiculopathy was on appeal indicating reliance by the Veteran, the desire to provide timely appellate review, and a lack of any prejudice to the Veteran in this matter, the Board will proceed with deciding the claim for entitlement to service connection for a lower extremity radiculopathy disability. Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral Lower Extremity Radiculopathy The Veteran seeks service connection for her bilateral lower extremity radiculopathy which she contends is etiologically related to her service-connected lower back condition. The Board briefly observes that the Veteran’s service treatment records (STRs) do not show a diagnosis of lower extremity radiculopathy in service. However, the Board does note the Veteran’s STRs contain treatment notes for leg numbness related to her lower back pain from an in-service motor vehicle accident. The Veteran was most recently afforded a December 2019 VA Back conditions examination. During this examination, the examiner found that the Veteran did not experience radicular pain or any other signs or symptoms due to radiculopathy. However, the Veteran’s most recent VA treatment records indicate that she experiences back pain with radicular features. Further the Veteran has provided lay statements wherein she noted that she experiences pain, tingling, and numbness in her bilateral lower extremities. Additionally, during her February 2021 Board hearing the Veteran testified that she experiences pain, tingling, and numbness which radiates into her lower extremities. Given the conflicting diagnoses of lower extremity radiculopathy, and the Veteran’s competent lay statements, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran meets the diagnostic criteria for lower extremity radiculopathy. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran met the current disability requirement with regard to the claim for service connection for a lower extremity condition. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment), Martinez-Bodon v. Wilkie, No. 18-3721, 2020 U.S. App. Vet. Claims LEXIS 1523 (Vet. App. Aug. 11, 2020). (Saunders is not limited to pain, such that a disability for VA purposes includes any condition that results in functional impairment of earning capacity.) Based on the foregoing, the Board finds that the probative medical evidence indicates that the Veteran’s current lower extremity radiculopathy is proximately due to her service-connected lower back condition. There are no medical opinions contrary to this conclusion. Hence, service connection for bilateral lower extremity radiculopathy, secondary to service-connected lower back condition, is granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS FOR REMAND Migraines While there is a January 2017 VA examination in the record for the Veteran’s claimed migraine disability, the Board finds it to be inadequate. The January 2017 examination diagnosed the Veteran with migraine and tension headaches. However, the examiner only offered an opinion regarding direct service connection for the Veteran’s migraine disability. The Board notes that the Veteran has indicated that her headaches are etiologically related to her now service-connected cervical spine disability. As such, the Board finds it necessary to obtain an additional medical opinion to determine whether the Veteran’s diagnosed headache disabilities are secondary to, aggravated by, or otherwise etiologically related to her service-connected cervical spine disability. Temporary Total Evaluation The Veteran contends she is entitled to a temporary total disability rating due to a surgery for her cervical spine. The RO denied the temporary total rating because, at the time of the rating decision and subsequent statement of the case (SOC), she was not service connected for a cervical spine disability. On her January 2019 VA Form 9, substantive appeal, the Veteran timely appealed the issue. Subsequently, the Board granted the Veteran’s claim for service connection for a cervical spine disability in a December 2020 decision. Given the recent award of service connection of a cervical spine disability, the RO should readjudicate the temporary rating claim due to convalescence. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran’s claimed migraine condition. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether the Veteran’s claimed headache disability is at least as likely as not (a 50 percent probability or greater): secondary to, aggravated by, or in any way etiologically related to her service-connected cervical spine disability. For purposes of this opinion, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran’s competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. 2. Readjudicate the Veteran’s claim currently on appeal for a temporary total disability rating for convalescence following January 2017 cervical spine surgery, with consideration of the December 2020 grant of service connection for cervical spinal stenosis with degenerative disc disease, and the Veteran’s assertion that the surgery was secondary to her service-connected cervical condition. If the full grant of benefits sought on appeal are not granted, return this claim to the Board for further appellate consideration. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.