Citation Nr: 21009834 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-29 496 DATE: February 23, 2021 ORDER Entitlement to service connection for a right lower extremity disability secondary to service-connected degenerative joint disease of the lumbar spine is granted. REMANDED Entitlement to a rating higher than 40 percent for degenerative joint disease of the lumbar spine is remanded. Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy is remanded. FINDING OF FACT Resolving all reasonable doubt in her favor, the Veteran has a right lower extremity disability manifested by pain and functional impairment that was at least as likely as not caused by her service-connected lumbar spine disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for a right lower extremity disability manifested by pain and functional impairment have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from October 24, 1978 to March 8, 1979, and again from March 26, 1979 to March 30, 1979. She had additional service with the Rhode Island Air National Guard. Entitlement to service connection for a right lower extremity disability, manifested by pain and functional impairment, secondary to service-connected degenerative joint disease of the lumbar spine. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated beyond natural progression by, a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Private treatment records show that the Veteran experiences low back pain which radiates into her right lower extremity. Specifically, a January 2011 treatment record produced by the Veteran’s private physician indicates: Her current pain is low back with radiation to both lower extremities, and occasional numbness of her left foot. She denies lower extremity weakness. Her current symptoms coincide well with findings on her most recent lumbar MRI. On VA examination in January 2017, the Veteran had hypoactive deep tendon reflexes in the right knee and ankle. She reported mild constant pain in her bilateral lower extremities. The examiner referenced a January 2017 EMG which indicated: Abnormal study. Electrodiagnostic evidence of old L4 radiculopathy in left lower extremity. No electrodiagnostic evidence of lumbar radiculopathy in right lower extremity. At her Board hearing, the Veteran endorsed functional impairment and pain in her right lower extremity. She reported it being painful and impacting her ability to sleep. The United States Court of Appeals for the Federal Circuit has stated that “‘disability’ in [38 U.S.C] § 1110 refers to the functional impairment of earning capacity.” See Saunders v. Wilkie, 886 F.3d 1356 (2018). The Court found “pain in the absence of a presently-diagnosed condition can cause functional impairment.” It was additionally stated in Saunders that “to establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity.” In this instance, the Veteran’s right lower extremity pain has caused the same functional impairment as that of her left lower extremity radiculopathy, which has been diagnosed and is currently service-connected. In light of Saunders, the Board resolves all reasonable doubt in the Veteran’s favor in finding that the first element of service connection has been met. Further, the Veteran contends that her right lower extremity disability was caused by her service-connected lumbar spine disability. Therefore, the second element of service connection has also been met. Thus, the question before the Board is whether there is a so-called “nexus” between the Veteran’s lumbar spine disability and her right lower extremity disability. The January 2017 VA examiner was asked to opine as to the etiology of the Veteran’s right lower extremity disability. However, the examiner ultimately found that the Veteran did not have a diagnosable disability of the right lower extremity and therefore no medical opinion was rendered. See also April 2014 VA Examination Report. However, in January 2011, the Veteran’s private physician opined that her right lower extremity disability was at least as likely as not caused by her service-connected low back disorder, which the examiner found to be directly related to the Veteran’s in-service injury. The examiner noted the Veteran’s MRI lumbar spine findings and essentially explained that the Veteran did not have any post-service injuries of significance to cause such impairments. He explained that the Veteran’s lower extremity pain radiated from the back and that her symptoms at the time coincided with what was found on MRI. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a right lower extremity disability, manifested by functional impairment and pain, is warranted. REASONS FOR REMAND Entitlement to a rating higher than 40 percent for degenerative joint disease of the lumbar spine is remanded; entitlement to a rating higher than 10 percent for left lower extremity radiculopathy is remanded. The Veteran was last afforded a VA examination for her lumbar spine and left lower extremity radiculopathy in February 2017. At that time, she was noted to have mild left lower extremity radiculopathy. She had flexion to 80 degrees and extension to 30 degrees. Although the Veteran’s low back is currently rated at 40 percent, the highest available rating based on range of motion, she contends her low back as well as her left lower extremity radiculopathy has worsened since her last VA examination. On examination, the examiner will have the opportunity to inquire about the Veteran’s flare-ups as well as any potential periods of bedrest or incapacitating episodes, which could afford the Veteran a higher rating for her low back disorder. Further, given the grant of service connection for right lower extremity functional impairment above, additional VA examination will be helpful to determine the current level of severity of the Veteran’s bilateral lower extremity radiculopathy. As such, remand is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected low back disorder and bilateral lower extremity radiculopathy. The examiner should 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 is specifically asked to comment on any incapacitating episodes or periods of physician prescribed bedrest as it relates to the Veteran’s low back. The examiner must also test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.