Citation Nr: 21040439 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-04 184A DATE: July 3, 2021 ORDER Entitlement to service connection for right leg tingling, diagnosed as right lower extremity radiculopathy, is denied. FINDING OF FACT The Veteran's right leg tingling is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for right leg tingling due to service or a service-connected disease or injury are not met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to July 1977. This matter comes to the Board of Veterans' Appeals (Board) from an August 2010 rating decision which, in pertinent part, denied entitlement to service connection for right leg tingling. In January 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In February 2020, July 2020, and March 2021, the Board remanded the matter for further development, to include obtaining treatment records and VA examinations and medical opinions. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of a "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for right leg tingling. The Veteran contends that service connection is warranted for right leg tingling. Specifically, he contends that he has had right leg pain and tingling since service. Alternatively, he contends that he has nerve damage in his right leg due to service-connected disability, including a limp from service-connected disability or right hip replacement, or that service-connected disabilities have aggravated his right leg tingling. The Veteran is service-connected for right hip, right knee, and right ankle disabilities. The question for the Board is whether the Veteran has a current disability that began during service or is proximately due to or the result of, or aggravated beyond its natural progression by, service-connected disability. The Board concludes that, while the Veteran has a current disability, the preponderance of the evidence is against finding that the Veteran's right lower extremity radiculopathy began during service or is proximately due to, or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Turning to the evidence of record, service treatment and military personnel records reflect that in June 1984, the Veteran was on active duty for training when his jeep flipped over, and his right ankle and lower body became pinned under the vehicle. He suffered fractures of the right pelvis and right ankle. He underwent surgery and rehabilitation, but his ankle continued to swell. A July 1986 VA examination report reflects complaints of pain and swelling in his right ankle and very minimal pain in his right hip only after excessive bending and stooping. Range of motion testing of the hip was normal and without pain, but there was pain and tenderness of the ankle. A September 1988 VA examination report is notable for complaints related to his right ankle but is silent for complaints related to his right hip, which was noted to have healed without residuals. An April 2002 VA examination report is silent for complaints of right leg pain or tingling. VA treatment records are silent for complaints related to leg pain or tingling of the back or legs until September 2001 when the Veteran reported leg cramps that were eased with increased consumption of bananas. In September 2002, the Veteran reported onset of low back pain but denied any radiating pain. He was diagnosed with muscle spasm. In December 2003, he reported intermittent back pain in his upper and lower back on the right side. In June 2004, the Veteran reported falling three weeks earlier and injuring his right leg. Due to pain and swelling, he sought emergency treatment to rule out deep vein thrombosis. Upon examination several weeks later, there was a focal area of swelling that was tender and minimal edema of the right leg. He was diagnosed with right leg sprain. In March 2005, he reported that his right leg felt weak. In August 2005, the Veteran reported low back pain and pain in his legs with walking. He was diagnosed with muscle spasm. In December 2007, he sought emergency treatment at the VA for flank pain radiating to his left leg. He was diagnosed with muscle strain. In June 2009, the Veteran filed a claim of service connection for tingling in right leg from thigh to ankle. In a July 2009 statement in support of claim and October 2009 VA examination report, the Veteran reported pain in his right hip, knee, and ankle but did not report tingling. The Veteran continued to report low back pain and VA imaging studies dated in October 2009 revealed small anterior osteophytes at multiple levels and mild degenerative disk changes at L5-S1. In November 2009, the Veteran reported low back pain for six months occasionally radiating to his right upper thigh. Private emergency room treatment in December 2010 reflect complaints of low back pain radiating to both legs. A March 2014 private consultation for spinal stenosis reflects complaints of low back pain for several months radiating to both lower extremities. The Veteran reported deep-seated buttock discomfort with radiation to the thighs and a heavy feeling in the legs relieved by laying or sitting. Based on history and examination, the clinician diagnosed lumbar spinal stenosis with neurogenic claudicatory symptoms as the most likely cause for his current lower extremity systems as described. VA treatment records dated in June 2016 reflect the Veteran reported increased right hip pain made worse with prolonged walking. He denied radiation of pain. Private treatment records reflect that in November 2017, the Veteran complained of groin pain. Straight leg testing was positive, and his clinician indicated the pain was likely due to his back. VA treatment records dated in May 2018 reflect the Veteran stated that his right hip started bothering him after he stepped off of a curb and thought he had pulled a muscle. Imaging revealed severe joint disease and replacement was recommended. His VA clinician indicated this may have been the source of his back pain during his last visit. In July 2018, the Veteran underwent a right hip replacement. Afterwards, the Veteran showed significant bruising and pain with any movement. There was concern over deep vein thrombosis, but this was subsequently ruled out. VA treatment records dated in November 2018 reflect the Veteran reported right hip pain and swelling in the right hip after a July 2018 hip replacement. The Veteran also reported that he was told there might be some nerve damage as well. He described nearly constant anterior thigh pain since surgery and gout flares every two to three weeks. A July 2019 letter from the Veteran's private clinician to evaluate his right hip reflects the Veteran was also experiencing muscular pain and radiculopathy. He was advised to follow up with his spine specialist. A March 2020 VA peripheral nerves examination report reflects the Veteran reported that since his July 2018 right hip replacement, he had been experiencing intermittent tightness in the quadriceps of the right leg. He denied paresthesias or numbness. The examiner noted that October 2009 lumbar spine imaging revealed mild degenerative disk disease at L5-S1. Upon examination, there was mild paresthesias and/or dysesthesias of the right lower extremity. Muscle strength was normal, but reflexes were absent in the right ankle. Sensation was decreased in the right thigh/knee, leg/ankle, and foot/toes. The Veteran's gait was normal. The examiner diagnosed mild incomplete paralysis of the sciatic nerve, external popliteal nerve, musculocutaneous nerve, and anterior tibial nerve. The examiner indicated that clinical findings demonstrated diffuse reduced sensation to vibration in the right lower extremity, which the examiner explained was associated with right lower extremity radiculopathy secondary to lumbar spine degenerative disk disease and not to any previous right hip replacement. In an October 2020 VA medical opinion, the March 2020 examiner rendered an addendum opinion. The examiner explained that right hip replacements do not cause right lower extremity radiculopathy. Rather, an October 2009 lumbar imaging study revealed degenerative disc disease of L5-S1, and this was the likely cause of the Veteran's right lower extremity radiculopathy. The examiner noted that strength was normal in the right hip, which did not support nerve damage. Thus, the examiner opined that it was less likely than not that the Veteran's right lower extremity radiculopathy was proximately due to a service-connected disability. The Veteran was afforded a new VA examination and medical opinion in March 2021. The Veteran reported right leg pain since service when his vehicle flipped over, and he sustained a right ankle fracture and right hip injury. The Veteran reported intermittent episodes of sharp pain in his right leg that radiated down his legs. He reported numbness over his right ankle and decreased muscle mass in his right leg. Upon examination, the examiner found moderate intermittent pain and numbness of the right lower extremity. Muscle strength was normal but there was atrophy of the right calf. Reflexes were hypoactive and sensation decreased in the right ankle. The Veteran's gait was normal. The examiner found moderate incomplete paralysis of the right sciatic nerve. The examiner diagnosed right lower extremity radiculopathy and opined that it was less likely than not that the Veteran's claimed right lower extremity radiculopathy was aggravated beyond its natural progression by his service-connected disabilities, including right hip, right knee, and right ankle disabilities. The examiner explained that right lower extremity radiculopathy is the result of compression of nerves that originate in the back leading to symptoms of pain, numbness, and tingling in the right lower extremity. Symptoms of worsening radiculopathy include lack of reflexes, weakness on physical examination, atrophy of the leg, and worsening loss of sensation. Given the pathophysiology of lumbar radiculopathy, the Veteran's service-connected hip, knee, and ankle conditions would not aggravate this condition beyond its natural progression as the origin of the condition is of the back and pathology of the back would be what causes increased manifestations of symptoms, not pathology of the hip, knee, or ankle. Upon review of the evidence of record, the Board concludes that, while the Veteran has a diagnosis of right lower extremity radiculopathy, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not chronic in service; it did not manifest to a compensable degree within the presumptive period; and continuity of symptomatology is not established. Medical Board findings at separation, VA and private treatment records, and VA examination reports are silent for complaints related to right leg pain or tingling until June 2004 when he suffered an acute injury. He did not report any radiation of pain until August 2005, nearly thirty years after separation from service and decades outside the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of radiating pain since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran's extensive medical records, which contain numerous musculoskeletal complaints, are silent for complaints related to pain or tingling in his right leg. While not dispositive, the Board finds it probative that despite periodic increased rating claims for his service-connected hip and ankle disabilities after separation from service in July 1977, he did not claim a right leg disability until June 2009. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Service connection for right lower extremity radiculopathy may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's right lower extremity radiculopathy and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Rather, multiple treating clinicians and VA examiners have attributed the Veteran's right lower extremity radiculopathy to his lumbar spine disability. However, VA most recently denied service connection for a lumbar spine disability in a December 2019 rating decision. The Veteran did not appeal that decision; thus, the Board does not have jurisdiction to consider it now. The remaining question is whether the Veteran's right lower extremity radiculopathy is secondary to a service-connected disability. As discussed above, the Veteran's treating clinicians and VA examiners have attributed his right lower extremity radiculopathy involving the sciatic nerve to his lumbar spine degenerative disc disease at L5-S1, rather than to his service-connected right hip, right knee, or right ankle disabilities. The March/October 2020 VA examiner indicated that the Veteran's right lower extremity radiculopathy was due to degenerative disc disease of L5-S1 and that the Veteran did not have nerve damage from his hip replacement as strength was normal in the right hip. Additionally, the March 2021 examiner explained that right lower extremity radiculopathy is the result of compression of nerves that originate in the back and that given the pathophysiology of lumbar radiculopathy, the Veteran's service-connected hip, knee, and ankle conditions would not aggravate this condition beyond its natural progression as the origin of the condition is of the back and pathology of the back would be what causes increased manifestations of the Veteran's symptoms, not pathology of the hip, knee, or ankle. However, as discussed above, the Veteran is not service-connected for his lumbar spine disability. The Board finds medical opinions as discussed above highly probative as they are supported by an explanation based on a review of relevant medical evidence, and examination of the Veteran, and specialized medical knowledge. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran believes right lower extremity radiculopathy is proximately due to or the result of or aggravated beyond its natural progression by a service-connected disability, to include as due to an altered gait or nerve damage from hip replacement surgery. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As such, the Board gives greater probative weight to the above discussed medical opinions which attribute the Veteran's right lower extremity radiculopathy to his nonservice-connected lumbar spine disability, rather than as directly due to or aggravated by his gait or his hip replacement. Additionally, the Board notes that the Veteran reported onset of symptomatology in his right leg years prior to his right hip replacement in 2018. Accordingly, the Board finds that the weight of the evidence is against finding the Veteran's right lower extremity radiculopathy is related to his active service or is secondary to a service-connected disability. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.310. As the preponderance of the evidence is against the claim, further application of the benefit-of-the-doubt doctrine is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's claim of service connection for right leg tingling, diagnosed as right lower extremity radiculopathy, is denied. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.