Citation Nr: 21028733 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-35 707 DATE: May 11, 2021 ORDER Entitlement to service connection for bilateral lower extremity radiculopathy is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The preponderance of the evidence shows that throughout the appeal period, the Veteran has experienced radiating pain and numbness into his lower extremities. These symptoms have caused functional impairment and are at least as likely as not a medical complication of the Veteran's lumbar spine disability. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral lower extremity radiculopathy have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from October 1972 to April 1974. In June 2020, the Board remanded the Veteran's claims for service connection for, inter alia, a lumbar spine disability and headaches. By a November 2020 rating decision, the RO granted service connection, assigned effective dates, and ratings. As noted by the RO, that decision represented a full grant of benefits sought on appeal as to those issues. In a February 2021 brief, the Veteran's Agent advanced argument as to the propriety of the ratings and effective dates assigned. As of March 24, 2015, VA amended its regulations to require all claims and notices of disagreements be filed on standard forms prescribed by the Secretary. When a veteran disagrees with a rating decision by the RO and seeks to appeal the decision, he must first file a "Notice of Disagreement" using a form specifically provided by the RO, known as VA Form 21-0958. 38 U.S.C. § 7105(a) ("Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary."); 38 C.F.R. §§ 19.21 (a Notice of Disagreement consists of a completed and timely submitted copy of the Form provided by the RO) (effective February 19, 2019); 20.201 (in effect prior to February 19, 2019). The Veteran's Agent was on notice of these requires as the December 2020 notification letter contained a full section entitled "What You Should Do If You Disagree With Our Decision." Thus, these issues are not currently before the Board and will not be addressed further. Entitlement to service connection for bilateral lower extremity radiculopathy. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As noted by the Board in its prior decisions, the Veteran originally filed a claim for service connection for "pain radiating from spine over both hips and into legs." The Board characterized the Veteran's claims to include a claim for service connection for a lumbar spine disability. See February 2019 BVA Decision. As noted above, the Veteran has been awarded service connection for his lumbar spine disability. Thus, the issue before the Board is whether service connection for bilateral lower extremity radiculopathy is warranted. The record contains a voluminous amount of VA treatment records dating from June 1988. VA treatment records from June 2005 indicate that the Veteran had a negative straight leg test bilaterally but that x-rays showed mild multilevel degenerative joint disease. VA treatment records from February 2011 state the Veteran had "some radicular type symptoms down the left lateral leg to the foot at times. Pain mild at this time, can flare-up at unpredictable times." The impression was lumbar degenerative disc disease and facet arthropathy with "left lumbar radicular symptoms." VA treatment records from September 2014, during the appeal period, state "he has preexisting radiculopathy of his left lower extremity and this is unchanged. There is no pain radiating down his right lower extremity or into his inguinal area. The pain is not centerline but is diffuse and bilateral across the lower lumbar region." On examination, there was no numbness or weakness and only low back pain was noted. VA treatment records from July 2015 note the Veteran's radicular pain down both lower extremities. The assessment/diagnoses were: "chronic [lower back pain] both lower extremities . . . Lumbar spine MRIs reviewed with the patient." No radiculopathy was diagnosed. VA treatment records from July 2018 indicate that the treating neurologist stated: This is a very pleasant 64-year-old man with history of numbness and tingling of both upper and lower extremities for several years. Patient does have DJD of lumbosacral spine multilevel. He also had some mild spinal stenosis. I think his numbness could be attributed to his lumbosacral spine DJD and disc disease. He does not have any signs of radiculopathy or myelopathy. However, he was started on Gabapentin at that time for his pain and numbness. VA treatment records from April 2019 note "cervical and lumbar spondylosis without myelopathy/radiculopathy with chronic pain." The Veteran was afforded an MRI/neurological examination in January 2019 and November 2019. The treating neurologist stated "exam non focal, without evidence of radiculopathy or myelopathy. No additional workup from neuro standpoint. Nothing else to offer." He was also afforded an EMG and the impression was "normal screening electrodiagnostic study of the bilateral lower limbs. No electrodiagnostic evidence for peripheral neuropathy." A June 2016 VA examination of the spine notes that the Veteran had decreased sensation in his foot/toes bilaterally, and decreased sensation in his right thigh/knee on sensory examination. Straight leg testing was negative. However, the examiner noted that the Veteran did have radicular symptoms due to radiculopathy. Specifically, he experienced moderate constant pain, moderate paresthesias, and moderate numbness without intermittent pain. Involvement of the sciatic nerve was noted bilaterally. The examiner opined that the radiculopathy was moderate in severity and at least as likely as not a complication of the Veteran's lumbar spine disability. The Veteran was also separately afforded a peripheral nerves examination in June 2016. The examiner noted a diagnosis of meralgia and paresthetica associated with right leg stress fracture. The Veteran had mild numbness in the right lower extremity only as a result of this disability. The Veteran was afforded an additional VA examination in January 2020. The examiner opined that the Veteran did not experience radiculopathy and did not have any signs or symptoms of radiculopathy. The Federal Circuit Court held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. The Court specifically stated, however, "we do not hold that a Veteran could demonstrate service connection simply by asserting subjective pain." In this instance, the evidence shows that at various points, the Veteran was found to have functional impairment consistent with bilateral lower extremity radiculopathy. Although as much was not confirmed on EMG, as noted on VA's Disability Benefits Questionnaire "EMG studies are rarely required to diagnose radiculopathy in the appropriate clinical setting." The June 2016 VA examiner found that there was sufficient functional impairment to warrant a diagnosis of bilateral lower extremity radiculopathy. In addition, as noted above, the Veteran has been prescribed Gabapentin as well as tramadol for such nerve pain. Thus, the Board resolves all reasonable doubt in his favor and finds that the Veteran experiences bilateral lower extremity radiculopathy impacting the sciatic nerve, or at the very least, functional impairment caused by symptoms of constant pain, numbness and paresthesias of the bilateral lower extremity such that it can be said he has a "disability" for VA purposes. The June 2016 VA examiner opined that the Veteran's bilateral lower extremity radiculopathy was at least as likely as not caused by his now service-connected lumbar spine disability as radiculopathy is a well-known complication of the Veteran's lumbar back condition. Thus, resolving all reasonable doubt in his favor, the Board finds that service connection for bilateral lower extremity radiculopathy impacting the sciatic nerve, manifesting as moderate constant pain, moderate paresthesias, and moderate numbness, is warranted. This represents a full grant of the benefit sought on appeal. REASONS FOR REMAND Entitlement to service connection for a left knee disability is remanded. In June 2020, the Board remanded the Veteran's claim for service connection for a left knee disability for additional VA medical opinion. Such was obtained in September 2020. However, it is incomplete. The Board directed the examiner to address the Veteran's reports of left knee pain almost immediately after service. In a September 1974 VA examination, which the Veteran underwent less than six months post-service, he reported that his left knee hurt him occasionally after an in-service motor vehicle accident. In March 1980, he stated that his knee still bothered him. In March 2011, he stated that he had intermittent problems with his left knee but treated it with over-the-counter medication. The September 2020 VA examiner opined that the Veteran's left knee disability was less likely than not related to service "as there is no notation of any left knee injury related to the accident in service." However, the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. (1992). On remand, the examiner must address the Veteran's lay contentions and the affirmative evidence indicating that his left knee "occasionally" hurt after an in-service motor vehicle accident. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion from the September 2020 examiner, or another appropriate clinician, addressing the etiology of the Veteran's left knee patellofemoral pain syndrome and joint osteoarthritis. After reviewing the claims file, the examiner is again asked to opine: (a.) Whether the Veteran's left knee disabilities are at least as likely as not related to service. The examiner must address the Veteran's lay contentions and theory of entitlement. Specifically, he contends that since service, his left knee has hurt him, and he has continued to treat his pain with over-the-counter medication. Essentially, he contends his PFS and osteoarthritis had a delayed onset and that it has manifested by pain since service. Because it is well known that both osteoarthritis and PFS can be caused by injury to the joint, a VA medical opinion addressing why these disabilities are more likely due to age and body habitus would be of considerable help to the Board. A complete rationale for any medical opinion rendered must be provided. SONJA S. AN Acting 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.