Citation Nr: 21028894 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-35 682 DATE: May 12, 2021 ORDER Service connection for bilateral lower extremity radiculopathy is denied. REMANDED Entitlement to service connection for a left knee disorder is remanded. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a current disability of bilateral lower extremity radiculopathy, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. CONCLUSION OF LAW The criteria for service connection for bilateral lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1116, 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 in the United States Navy from November 1973 to July 1974, and in the United States Army from February 1977 to January 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran and his wife testified at a hearing before the undersigned in June 2018. A transcript of that hearing has been associated with the record. These matters were previously before the Board in September 2018, at which time they were remanded to the RO for further development, to include locating additional private medical records. Service Connection In order to establish service connection, the record must contain competent evidence of: (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). However, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulations, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Upon a review of the record, the Board finds that the Veteran does not have a current diagnosis of bilateral lower extremity radiculopathy at any point pertinent to the pendency of his claim. In this regard, his post-service treatment records show no complaints, treatment, or diagnosis referable to radiculopathy. Notably, in October 2015 and November 2017, after a review of the record and physical examinations pertaining to this claim for service connection and for an increased disability rating for a service-connected lumbar spine disability, VA examiners specifically found the Veteran did not have a diagnosis referable to bilateral lower extremity neuropathy. The October 2015 examiner, who was specifically tasked with addressing the Veteran's neuropathy claim, found after testing that the Veteran did not have a diagnosis of such. The Board acknowledges the Veteran's sincere belief that he has a neurological disorder that developed as a result of his military service. However, the Veteran, as a lay person, is not competent to offer a diagnosis of bilateral lower extremity radiculopathy as he does not possess the requisite specialized knowledge. In this regard, such a diagnosis requires the administration and interpretation of diagnostic tests, to include an EMG or nerve conduction study. Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis of such. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Veteran's statements as to the presence of current bilateral lower extremity radiculopathy are afforded no probative weight. Based on the foregoing, the Board finds that at no time during the pendency of the claim does the Veteran have a current disability of bilateral lower extremity radiculopathy, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. McClain, supra; Romanowsky, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer, supra. Consequently, service connection for bilateral lower extremity radiculopathy is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claim is denied. REASONS FOR REMAND In October 2015, the Veteran underwent a VA examination in relation to his left leg claim. The examiner was asked to address whether it was at least as likely as not that any diagnosed left leg disability was due to service. Following an examination of the Veteran, and a diagnosis of leg cramps, the VA physician determined it was less likely than not that this condition was due to service. As rationale, he explained that the Veteran's service treatment records, to include his separation examinations, were silent as to any leg or knee condition, or any treatment for such. The Board must find that the examiner's rationale is inadequate, as it relies entirely on the absence of contemporaneous medical records indicating an injury in service. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). The Veteran has credibly described, in his June 2018 testimony before the Board and elsewhere, that he fell on his left knee while in service in Germany and that it was treated with ice and medication. Although it regrets the delay, the Board finds that another remand is necessary, to provide the Veteran with a new examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Provide the Veteran's file to an appropriate VA clinician to obtain an opinion which addresses the nature and etiology of any disability of his left leg, to include but not limited to, cramping. The necessity of an in-person examination is to be determined by the selected examiner. The examiner is asked to identify all current disabilities of the Veteran's left leg, or disabilities that have existed during the appeal period. Then, for each such disability, the examiner should offer an opinion as to whether it is at least as likely as not (that is, a 50 percent or greater probability) that began in, or is otherwise related to, the Veteran's periods of active duty service. (Continued on the next page) In offering any opinion, the examiner must consider the full record, to include the lay statements regarding an in-service injury, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. A detailed rationale should be provided for all opinions proffered. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.