Citation Nr: 21026297 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 10-14 856 DATE: April 30, 2021 ORDER Service connection for a thoracolumbar spine disability is denied. Prior to August 1, 2011 a rating in excess of 10 percent for right lower extremity peripheral neuropathy is denied. From August 1, 2011 through October 3, 2011, a rating of 40 percent, but not higher, for right lower extremity peripheral neuropathy is granted. Beginning October 4, 2011, a rating in excess of 40 percent for right lower extremity peripheral neuropathy is denied. Prior to October 4, 2011, a rating in excess of 10 percent for left lower extremity peripheral neuropathy is denied. Beginning to October 4, 2011, a rating in excess of 20 percent for left lower extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a current thoracolumbar spine disability was incurred in or caused by service. 2. Prior to August 1, 2011, the Veteran’s right lower extremity peripheral neuropathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve. 3. From August 1, 2011, the Veteran’s right lower extremity peripheral neuropathy has been manifested by no more than moderately severe incomplete paralysis of the sciatic nerve. 4. Prior to October 4, 2011, the Veteran’s left lower extremity peripheral neuropathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve. 5. Beginning October 4, 2011, the Veteran’s left lower extremity peripheral neuropathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. Prior to August 1, 2011, the criteria for a rating in excess of 10 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). 3. From August 1, 2011 through October 3, 2011, the criteria for a rating of 40 percent, but not higher, for right lower extremity peripheral neuropathy have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2020). 4. Beginning October 4, 2011, the criteria for a rating in excess of 40 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). 5. Prior to October 4, 2011, the criteria for a rating in excess of 10 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). 6. Beginning October 4, 2011, the criteria for a rating in excess of 20 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1970. He was awarded a Combat Infantry Badge, among other decorations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Veteran testified at a hearing before a Veterans Law Judge who is no longer with the Board. The Veteran subsequently testified at a hearing before the undersigned Veterans Law Judge in January 2018. Transcripts of both hearings are of record. This matter was most recently before the Board in May 2020, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for a thoracolumbar spine disability The Veteran asserts that a current thoracolumbar spine disability is related to an in-service fall that occurred in 1969. The Veteran testified at his Board hearings that he fell backward off a tower during service, after which he experienced pain in his head, neck, and back. Service treatment records confirm that in March 1969, the Veteran reported falling 30-feet and hitting his head after a step came loose from a tower. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that a current thoracolumbar spine disability was incurred in or caused by service. To the extent that the Veteran claims to have experienced continued thoracolumbar back pain since the in-service fall, the Board finds that such assertions are not consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Service treatment records show that when the Veteran sought treatment after the March 1969 fall, he stated that his only current pain was a headache. He did not report symptoms of back pain. A physical examination revealed a slight abrasion on his left arm, and the assessment was a probable mild concussion. A service treatment record dated the following day shows that the Veteran apparently had no serious injuries from the fall, but he reported pain in the left parietal area. The plan was to continue bed rest, take asprin for headaches, and return to the clinic as needed. Subsequent service treatment records show that the Veteran sought treatment for various conditions; however, he did not report symptoms of back pain. A June 1970 report of medical examination indicates that the Veteran’s spine and musculoskeletal system was normal upon his discharge from active duty, and he reported being in excellent health. In August 1970, he reported no change in his medical condition since his separation examination. Post-service treatment records contain a July 1992 treatment record describing the Veteran’s past medical history; however, there was no mention of back pain. In 2001 and 2002, the Veteran reported pain in the upper cervical spine radiating to the right side of the scalp, and imaging studies showed multilevel spinal stenosis at C4-7 and abnormal curvature of the cervical spine. An October 2002 letter from the Veteran’s physician indicated that the Veteran had osteoarthritis in his back, but stated he “specifically has spinal stenosis, at multiple level of the cervical spine.” The record shows no complaints of or treatment for a thoracolumbar spine condition until approximately November 2003, at which time an MRI of the thoracic spine showed mild multilevel annular disc bulges, and an MRI of the lumbar spine showed moderate to severe lumbar central spinal stenosis at L4-5 secondary to bilateral facet osteoarthritis, annular disc bulge, and short pedicles. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than statements made to VA or VA examiners for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran underwent a VA examination in December 2004, during which he reported back pain since the in-service fall. He reported being diagnosed with herniated discs in the cervical spine in 1998; however, he did not recall what was said about the thoracic or lumbar spine at that time. X-rays performed during the VA examination revealed degenerative disc disease at all levels of the spine. The Veteran underwent another VA spine examination in October 2019, during which he reported neck pain beginning a year after the 1969 fall and back pain beginning around 2000. The examiner opined that it was less likely than not that the Veteran’s current thoracic and lumbar spine conditions were incurred in or caused by service. In support of this, the examiner explained that the primary risk factor for degenerative disc disease is advancing age and obesity, and spinal stenosis typically presents in the fifth decade of life. The examiner indicated that the Veteran was diagnosed with morbid obesity as early as 2001, and although trauma can be a factor in spinal disease, the Veteran was only treated for headaches after the in-service fall. Therefore, the examiner concluded that in this case, it was more likely that the causative factor for the Veteran’s current thoracolumbar spine disability is age-related degeneration and developmental defect (short pedicles) exacerbated by his morbid obesity. In July 2020, another VA examiner reviewed the evidence of record and opined that it was less likely than not that a current thoracolumbar spine disability was incurred in or caused by service. However, the Board assigns no probative value to this opinion, as it is not supported by an adequate rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). In September 2020, another VA examiner reviewed the evidence of record, including the Veteran’s statements and testimony, and opined that it was less likely than not that a current thoracolumbar spine disability was incurred in or caused by service. In support of this, the examiner explained that service treatment records showed no complaints of back pain following the in-service fall, and the Veteran’s spine and musculoskeletal system were normal upon his separation from service. The examiner further explained that the record showed no treatment for a thoracolumbar spine disability for many years after service, and when the Veteran sought treatment in 1998, he only reported pain in the cervical spine. The examiner indicated that degenerative arthritis of the spine is a chronic condition medically known to result from wear and tear over time and advancing age. The examiner indicated that the Veteran was nearly 56 years old when he was diagnosed with thoracolumbar spine degenerative arthritis and spinal stenosis, and his post-service occupation was a heavy equipment operator and driller, which most likely involved heavy lifting and physical work, causing strain on the back. The examiner also noted that the Veteran had a longstanding history of obesity, which was noted proximate to the diagnosis of arthritis of the thoracolumbar spine and indicated that excess body weight is another cause of wear and tear injury over time. The Board finds the opinion of the September 2020 VA examiner to be highly probative and persuasive, as it is based on a review of the evidence of record and supported with a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Although the Veteran believes that a current thoracolumbar spine disability is related service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the diagnosis and etiology of spine disorders are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current thoracolumbar spine disability is not competent medical evidence. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Disability Ratings for Peripheral Neuropathy Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy; and a maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Additionally, the term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. Id. 2. Entitlement to a higher rating for right lower extremity peripheral neuropathy The Veteran’s right lower extremity peripheral neuropathy has been assigned a 10 percent rating prior to October 4, 2011, and a 40 percent rating thereafter. Prior to August 1, 2011 Upon review of the record, the Board finds that a rating in excess of 10 percent for right lower extremity peripheral neuropathy is not warranted at any time prior to August 1, 2011. The Veteran underwent a VA examination in August 2008, during which he reported symptoms of numbness and tingling in the toes, heels, and calves. He stated that he could not walk, but the examiner noted that he reported walking a mile three times a week on a regular basis. There was no evidence of muscle atrophy, and motor function and coordination were normal. VA treatment records show that in April 2009 and September 2009, there was decreased sensation in the lower extremities. In October 2009, reflexes, motor strength, coordination, and sensation were normal throughout the lower extremities. In January 2011 and July 2011 VA, sensation and muscle strength were grossly intact. In sum, the record shows that the Veteran’s right lower extremity peripheral neuropathy was manifested by numbness and tingling in the foot and calf, which did not prevent him from regularly walking a mile three times a week. Sensation was decreased at times, but normal on other occasions, and the record shows normal reflexes, muscle strength, motor function, and coordination. Based on the foregoing, the Board finds that the evidence of record shows no more than mild incomplete paralysis of the right sciatic nerve prior to August 1, 2011. Accordingly, a rating in excess of 10 percent prior to August 1, 2011, is not warranted. Beginning August 1, 2011 Beginning August 1, 2011, the Board finds that the criteria for a rating of 40 percent have been more nearly approximated. A VA treatment record dated September 1, 2011, shows that the Veteran reported that his burning foot pain had increased to a sharp pain in the right foot for the past month, and his dosage of gabapentin was increased. Effective October 4, 2011, the Veteran’s rating for right lower extremity peripheral neuropathy was increased to 40 percent. However, as the record shows that the Veteran’s right lower extremity peripheral neuropathy increased in severity about a month before the September 2011 VA treatment record, the Board finds that the criteria for a rating of 40 percent for right lower extremity peripheral neuropathy have been more nearly approximated as of August 1, 2011. See 38 C.F.R. §§ 4.7, 3.400(o)(2) (the effective date for an increase in disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred). Accordingly, a rating of 40 percent for right lower extremity peripheral neuropathy is granted as of that date. The Board finds that a rating in excess of 40 percent is not warranted for right lower extremity peripheral neuropathy at any time on or after August 1, 2011. The Veteran underwent a VA examination in October 2011, during which he reported constant pain, numbness, and paresthesias and/or dysesthesias in the right lower extremity, which he characterized as severe. Sensation to light touch was normal in the thigh, knee, lower leg, and ankle, but absent in the foot/toes. Sensation to vibration and cold were decreased, but position sense was normal. Deep tendon reflexes and muscle strength were normal throughout the right lower extremity. There was no evidence of muscle atrophy. The examiner observed trophic changes in the form of hair loss on the feet and characterized the Veteran’s right lower extremity neuropathy as moderately severe incomplete paralysis of the sciatic nerve. During the March 2016 Board hearing, the Veteran testified that he experienced numbness, tingling, and cramping in the lower extremities and that his toes got very cold and painful. The Veteran underwent another VA examination in February 2017, during which he reported moderate, constant right lower extremity pain and severe numbness and paresthesias and/or dysesthesias. He described a burning sensation in his feet and cramps in his feet and calves. He also reported feeling intermittent sensations of “pins and needles,” hot and cold, and feeling like his feet were swollen, even though they were not. The Veteran walked with a wide-based gait and used a cane for stability due to his neuropathy as well as right knee and hip disabilities. Muscle strength testing was normal throughout the right lower extremity. Deep tendon reflexes were decreased at the knee and absent at the ankle. Sensation to light touch was normal in the knee/thigh, decreased in the ankle/lower leg and absent in the foot/toes. Sensation to vibration, cold, and position sense were decreased. There was no evidence of muscle atrophy. The examiner observed trophic changes in the form of loss of hair and smooth skin and characterized the Veteran’s right lower extremity peripheral neuropathy as moderately severe incomplete paralysis of the sciatic nerve. During the January 2018 Board hearing, the Veteran testified that his lower extremity peripheral neuropathy was very painful. He reported difficulty walking and stated that he felt weakness in his lower extremities. The Veteran underwent another VA examination in October 2019, during which he reported severe constant right lower extremity pain and numbness and moderate paresthesias and/or dysesthesias. He described numbness in the feet and toes and severe pain, burning, and a “pins and needles” sensation with any significant walking, which was worse on the right. The Veteran walked with a tender gait with a slight sway and used a cane. Muscle strength testing was normal throughout the right lower extremity. Deep tendon reflexes were absent at the knee and ankle. Sensation to light touch was normal in the thigh and knee but decreased in the lower leg/ankle and absent in the foot/toes. The examiner observed trophic changes in the form of loss of hair and shiny skin and characterized the Veteran’s right lower extremity peripheral neuropathy as moderate incomplete paralysis of the sciatic nerve. VA treatment records during this period show that protective sensation to light touch was absent in the right foot between December 2011 and June 2016. Between January 2017 and May 2018, protective sensation was 7/10 to light touch in the right foot. In January 2019, there was a normal response to light touch. In March 2019, L4-S1 dermatomes were intact to light touch, but patella and achilles deep tendon reflexes were absent. Muscle bulk and strength were consistently normal, and there was no evidence of muscle atrophy. In sum, the record shows that the Veteran’s right lower extremity peripheral neuropathy was manifested by constant pain, numbness, and tingling in the foot and calf. However, there was no evidence of marked muscle atrophy, such that a 60 percent rating would be warranted. Moreover, there was no evidence of complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost, such that an 80 percent rating would be warranted. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Based on the foregoing, the Board finds that the evidence of record shows no more than moderately severe incomplete paralysis of the right sciatic nerve as of August 1, 2011. Accordingly, a rating in excess of 40 percent on or after August 1, 2011, is not warranted. 3. Entitlement to a higher rating for left lower extremity peripheral neuropathy The Veteran’s left lower extremity peripheral neuropathy has been assigned a 10 percent prior to October 4, 2011, and a 20 percent rating thereafter. Prior to October 4, 2011 Upon review of the record, the Board finds that a rating in excess of 10 percent for left lower extremity peripheral neuropathy have not been met at any time prior to October 4, 2011. The Veteran underwent a VA examination in August 2008, during which he reported symptoms of numbness and tingling in the toes, heels, and calves. He stated that he could not walk, but the examiner noted that he reported walking a mile three times a week on a regular basis. Sensation was diminished in the left lower extremity. There was no evidence of muscle atrophy, and motor function and coordination were normal. VA treatment records show that in April 2009 and September 2009, there was decreased sensation in the lower extremities. In October 2009, reflexes, motor strength, coordination, and sensation were normal throughout the lower extremities. In January 2011 and July 2011 VA, sensation and muscle strength were grossly intact. In sum, the record shows that the Veteran’s left lower extremity peripheral neuropathy was manifested by numbness and tingling in the foot and calf, which did not prevent him from regularly walking a mile three times a week. Sensation was decreased at times, but normal on other occasions, and the record shows normal reflexes, muscle strength, motor function, and coordination. Based on the foregoing, the Board finds that the evidence of record shows no more than mild incomplete paralysis of the left sciatic nerve prior to October 4, 2011. Accordingly, a rating in excess of 10 percent prior to October 4, 2011, is not warranted. Beginning October 4, 2011 The Veteran underwent a VA examination in October 2011, during which he reported constant pain, numbness, and paresthesias and/or dysesthesias in the left lower extremity, which he characterized as moderate. Sensation to light touch was normal in the thigh, knee, lower leg, and ankle, but decreased in the foot/toes. Sensation to vibration and cold was decreased, but position sense was normal. Deep tendon reflexes and muscle strength were normal throughout the left lower extremity. There was no evidence of muscle atrophy. The examiner observed trophic changes in the form of hair loss on the feet and characterized the Veteran’s left lower extremity neuropathy as moderate incomplete paralysis of the sciatic nerve. During the March 2016 Board hearing, the Veteran testified that he experienced numbness, tingling, and cramping in the lower extremities. He also stated that his toes get very cold and painful. The Veteran underwent a VA examination in February 2017, during which he reported constant left lower extremity pain, numbness, and paresthesias and/or dysesthesias, which he characterized as moderate. He described a burning sensation in his feet and cramps in his feet and calves. He also reported feeling intermittent sensations of “pins and needles,” hot and cold, and feeling like his feet were swollen, even though they were not. The Veteran walked with a wide-based gait and used a cane for stability due to his neuropathy as well as right knee and hip disabilities. Muscle strength testing was normal throughout the left lower extremity. Deep tendon reflexes were decreased at the knee and absent at the ankle. Sensation to light touch was normal in the knee/thigh, decreased in the ankle/lower leg and absent in the foot/toes. Sensation to vibration, cold, and position sense were decreased. There was no evidence of muscle atrophy. The examiner observed trophic changes in the form of loss of hair and smooth skin and characterized the Veteran’s right lower extremity peripheral neuropathy as moderate incomplete paralysis of the sciatic nerve. During the January 2018 Board hearing, the Veteran testified that his lower extremity peripheral neuropathy was very painful. He stated that he had difficulty walking and felt weakness in his lower extremities. The Veteran underwent a VA examination in October 2019, during which he reported constant left lower extremity pain, numbness, and paresthesias and/or dysesthesias, which he described as moderate. He reported severe pain intermittently. He described numbness in the feet and toes and severe pain, burning, and a “pins and needles” sensation with any significant walking, which was worse on the right. The Veteran walked with a tender gait with a slight sway and used a cane. Muscle strength testing was normal throughout the left lower extremity. Deep tendon reflexes were normal at the knee, but absent at the ankle. Sensation to light touch was normal in the thigh and knee but decreased in the lower leg/ankle and absent in the foot/toes. The examiner observed trophic changes in the form of loss of hair and shiny skin and characterized the Veteran’s left lower extremity peripheral neuropathy as moderate incomplete paralysis of the sciatic nerve. VA treatment records during this period show that protective sensation to light touch was decreased in the left foot between December 2011 and June 2016. From January 2017 to May 2018 protective sensation was 5/10 to light touch in the left foot. In January 2019, there was normal response to light touch. In March 2019, L4-S1 dermatomes were intact to light touch, but patella and achilles deep tendon reflexes were absent. Muscle bulk was consistently normal, and there was no evidence of atrophy. In November 2018, left leg muscle strength was 3/5. In January 2019, there was normal response to light touch. In sum, the record shows that the Veteran’s left lower extremity peripheral neuropathy was manifested by pain, numbness, and tingling in the foot and calf. Although he testified to subjective symptoms of lower extremity weakness, muscle strength testing was consistently normal, with the exception of November 2018, when it was 3/5. Otherwise, the left lower extremity consistently exhibited full muscle strength before and after November 2018. Moreover, the Veteran has frequently described his right lower extremity neuropathy symptoms as more severe than his left. As the Veteran’s right lower extremity neuropathy has not met the criteria for a rating higher than that warranted for moderately severe incomplete paralysis of the sciatic nerve, the Board concludes that his left lower extremity neuropathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve. Accordingly, a rating in excess of 20 percent is not warranted at any time on or after October 4, 2011. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.