Citation Nr: 21022875 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-38 286 DATE: April 19, 2021 ORDER Service connection for left lower extremity radiculopathy, as secondary to a back disability, is granted. REMANDED Service connection for a left foot disability, to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT The Veteran’s left lower extremity radiculopathy is reasonably shown to be related to or caused by his service-connected back disability. CONCLUSION OF LAW The criteria have been met for service connection for left lower extremity radiculopathy. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to August 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs Regional Office (RO). In January 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. This case was previously before the Board in June 2019 when it was remanded for additional development. Concerning the issue of service connection for left lower extremity radiculopathy, the Board finds that there has been substantial compliance with its prior remand directives. Concerning the issue of service connection for a left foot disability, unfortunately, for the reasons discussed below, another remand is required. See Stegall v. West, 11. Vet. App. 268 (1998)). Additionally, the Veteran initially filed a claim to establish service connection for a left foot disability manifested by numbness. In determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the decision in Clemons and the diagnoses of record, the Board has expanded the Veteran’s claim, and split it into two separate claims, to include a left foot disability and left lower extremity radiculopathy, and the issues have been recharacterized as stated on the title page. This will provide the most favorable review of the Veteran’s claims in keeping with the holding in Clemons. In a November 2020 Form 10182, the Veteran opted-into the Appeals Modernization Act (AMA) for the issues of service connection for neck and left leg disabilities, and for traumatic brain injury (TBI) residuals. Because of this, these claims are no longer in the Legacy system and cannot be adjudicated in this appeal. These issues will be addressed in a separate AMA decision at a future date. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. §§ 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection for left lower extremity radiculopathy, as secondary to a back disability, is granted Factual Background In the June 2019 remand, the Board ordered the RO to schedule the Veteran for a VA examination to determine if he was diagnosed with a left foot condition manifested by numbness. The examiner was specifically asked to provide opinions as to whether any diagnosed disability was proximately due to or aggravated by the Veteran’s service-connect left knee disability. The remand noted that the Veteran’s service treatment records (STRs) contained notations from October 1974 of a left ankle injury and from October 1975 of left foot pain. Additionally, the examiner was asked to opine as to whether the Veteran’s disability was directly related to active service. In a September 2020 VA examination report, the Veteran was diagnosed with left foot degenerative arthritis and hallux valgus. The Veteran noted that his left foot condition and numbness started after his femur surgery in the 1970s. Over the years, he reported that it worsened and was characterized by intermittent dull pain and numbness in the lateral part of his left foot. The examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the examiner was unable to establish a left foot disability manifested by numbness [emphasis added] as secondary to the left knee disability. According to the VA examiner, there was no objective evidence of record to support the Veteran’s claim of a left foot condition that resulted in numbness [emphasis added]. The Board notes that the VA examiner never addressed the Veteran’s diagnosed left foot arthritis and hallus valgus, or the STRs noting that he injured his left ankle and had left foot pain during active service. In a September 2020 VA peripheral nerves examination report, the Veteran was diagnosed with left lower extremity sciatica. The Veteran noted that he experienced numbness in the lateral part of his left foot, which started in 1976. He reported that over the years, the condition worsened, and he had more numbness on the lateral side of his left foot. The VA examiner noted that the Veteran had symptoms attributable to a peripheral nerves condition. The Veteran had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in his left lower extremity. The examiner determined that the Veteran had mild incomplete paralysis of his left sciatic nerve. The examiner opined that it was less likely than not that the claimed condition was proximately due to or the result of the Veteran’s service-connected left knee. The rationale was that while the Veteran had left lower extremity radiculopathy, it was not the result of his left knee disability. In a subsequent September 2020 VA addendum opinion, the examiner provided a more detailed rationale, explaining that the Veteran’s left lower extremity radiculopathy was related to his lower back condition, not his left knee. The Board notes that the Veteran has been service connected for a low back strain since September 18, 1991. Analysis While the Veteran claims that his left foot disability manifested by numbness is the result of his left knee, he is not a medical expert. The September 2020 addendum opinion, while finding no nexus between the Veteran’s left lower extremity radiculopathy and his left knee disability, DID find a nexus between his radiculopathy and his service-connected back disability. Because of this, the Board finds that it is at least as likely as not that the Veteran’s numbness in his left foot is actually radiculopathy, which is causally related to his service-connected low back strain. Accordingly, the criteria for service connection have been met, and the claim for left lower extremity radiculopathy is granted. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS FOR REMAND Service connection for a left foot disability, to include as secondary to service-connected disabilities, is remanded. As noted above, in the June 2019 remand, the Board ordered the RO to schedule the Veteran for a VA examination to determine if he was diagnosed with a left foot condition manifested by numbness. The examiner was specifically asked to provide opinions as to whether any diagnosed disability was proximately due to or aggravated by the Veteran’s service-connect left knee disability. Additionally, the remand noted that the Veteran’s STRs contained notations from October 1974 of a left ankle injury and from October 1975 of left foot pain. The examiner was asked to opine as to whether the Veteran’s disability was directly related to active service. In a September 2020 VA examination report, the Veteran was diagnosed with left foot degenerative arthritis and hallux valgus. The examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the examiner was unable to establish a left foot disability manifested by numbness as secondary to the left knee disability. According to the VA examiner, there was no objective evidence of record to support the Veteran’s claim of a left foot condition that resulted in numbness. The Board notes that the VA examiner never addressed the Veteran’s diagnosed left foot arthritis and hallus valgus, or the STRs noting that he injured his left ankle and had left foot pain during active service. Because of this, a new VA opinion is needed to determine if the Veteran’s left foot disability, not including radiculopathy, was related to active service or to any other service-connected disabilities. The matters are REMANDED for the following actions: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. Then, arrange for the Veteran’s file to be forwarded to a VA examiner for a clarifying addendum opinion, or a telehealth interview, regarding the likely cause of the Veteran’s diagnosed left foot conditions. The examiner or consulting physician must review the entire record (including all updated records obtained pursuant to the above development order). Based on his or her review, the examiner or consulting physician should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s left foot disability is directly related to active military service, represents the initial manifestations of his current diagnosis, OR is proximately due to or aggravated by his service-connected disabilities. In reaching any conclusion, the examiner must take into consideration the October 1974 STR noting a left ankle injury and an October 1975 STR noting left foot pain. 4. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.