Citation Nr: 21015357 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-28 975 DATE: March 17, 2021 THE ISSUE Entitlement to service connection for right lower extremity radiculopathy, as secondary to a lower back disability. ORDER Entitlement to service connection for right lower extremity radiculopathy, as secondary to a lower back disability is denied. FINDINGS OF FACT The most probative evidence is against finding that the Veteran has right lower extremity radiculopathy and the Veteran has not established that his reported symptoms rise to the level of occupational impairment of earnings. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for right lower extremity radiculopathy. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1997 to January 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing sitting in Houston, Texas. A transcript of the hearing is of record. This matter was previously before the Board in October 2019 and September 2020, at which point it was remanded, along with the issues of entitlement to service connection to a low back and lower left extremity radiculopathy, in order to afford the Veteran a VA examination and opinions. In a subsequent January 2021 rating decision, the Veteran was granted service connection for a low back disability and lower left extremity radiculopathy, and therefore, those matters are no longer before the Board. As discussed below, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Entitlement to service connection for right lower extremity radiculopathy, as secondary to a lower back disability is denied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection also may be established on a secondary basis for disability that is proximately due to, or the result of, or being aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran additionally contends that he has right lower extremity radiculopathy due to his service-connected low back disability. However, the Board finds no current diagnosis of right lower extremity radiculopathy in the file upon which to predicate a claim for service connection. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there can be no valid claim). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). At the very least, the evidence must show that, at some point during the appeal period, the Veteran has had the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability has resolved); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). Here, the post-service treatment records show no probative indication of lower right extremity radiculopathy. The Board acknowledges a May 2019 private treatment note which contains a subjective complaint of symptoms radiating to the “right buttock” and “right posterior thigh,” but also finds that the treatment note did not identify radiculopathy of the right lower extremity. The private records, including February 2013and July 2019 MRI reports, are also silent as to a diagnosis of right lower extremity radiculopathy. While the July 2019 MRI report cites a history of “lumbar radiculopathy,” the report did not find lower right extremity radiculopathy. Furthermore, a March 2013 private treatment record notes “no evidence of lumbar radiculopathy.” A December 2019 VA examination only revealed evidence of left lower extremity radiculopathy (in the form of sciatica, which the Veteran is already service connected for) but no evidence or complaints consistent with right lower extremity radiculopathy. In accordance with the September 2020 Board remand, the Veteran was afforded a subsequent December 2020 VA examination, which came to the same conclusion. To qualify for entitlement to compensation, a Veteran must prove the existence of a disability and one that has resulted from a disease or an injury that occurred during active service. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Symptoms alone are not a disability for which service connection may be granted. See id. A more recent Federal Circuit Court case held that a diagnosis is not required to meet the current disability requirement and that pain, alone, can constitute disability if it causes impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). This holding does away with the notion, including cited in Sanchez-Benitez, that "pain alone is not disability" in all circumstances, but this concept is still valid in that a Veteran still needs to show disability due to disease or injury in service to get service connection. Despite his assertions that he has right lower extremity radiculopathy, the Veteran has not offered any competent and credible medical evidence supporting his assertions nor has he demonstrated that he has the knowledge, training, or education required to diagnose this type of medical disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board acknowledges the Veteran’s occasional complaints of pain radiating down his right leg in the medical records and in his correspondence. See, e.g. February 2013 and March 2013 private treatment records, August 2016 VA treatment record. However, the Board finds that these complaints of occasional pain do not rise to the level of functional impairment or earning capacity as outlined in Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). Therefore, the Board therefore finds that service connection for right lower extremity radiculopathy is not warranted as there is no current diagnosis of a disability or required showing of impairment in earning capacity if considering the "pain" scenario discussed in Saunders. Inasmuch as this most fundamental requirement has not been met, there is no present disability to relate or attribute to the Veteran's service, including to the parachuting activity he cites as the source or cause of this, for all intents and purposes, non-existent disability. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.