Citation Nr: 22011060 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 17-27 675 DATE: February 25, 2022 ORDER Service connection for left lower extremity radiculopathy is granted. FINDING OF FACT The most persuasive evidence weighs in favor of finding that the Veteran's left lower extremity radiculopathy is etiologically related to his service-connected degenerative joint disease (DJD) of the thoracic spine with intervertebral disc syndrome (IVDS). CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 2006 to July 2014, including service in Afghanistan, for which his decorations included the Combat Infantryman Badge. The Veteran and his spouse testified before the undersigned Veterans Law Judge during an October 2019 hearing and a transcript is of record. This matter is on appeal from a February 2017 rating decision. This matter was remanded by the Board in May 2020 to attempt to obtain additional records and to afford the Veteran an additional VA examination. Because the Board is granting the Veteran's claim in full, any errors in compliance with the remand directives are harmless. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded claims for service connection for a neck condition and a left ankle disorder as well as a total and permanent rating for the service-connected posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI). In an August 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for cervical strain and left ankle deltoid ligament sprain. The AOJ also continued the Veteran's 100 percent rating for PTSD and TBI and added that his condition and evaluation "are considered permanent, no future examination will be scheduled." These issues are no longer before the Board. 1. Left Lower Extremity Radiculopathy The Veteran contends that he has left lower extremity radiculopathy that is etiologically related to his active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in approximate balance with the negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. It is only when the weight of the evidence is persuasively against the claim that the claim must be denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The Veteran is currently service-connected for DJD of the thoracic spine with IVDS, as well as right lower extremity radiculopathy. VA received the Veteran's claim for service connection on July 18, 2016. The Veteran was afforded a VA examination for peripheral nerves conditions in October 2016. The Veteran reported onset of symptoms in 2013 and worsening of left leg pain since then. He reported mild intermittent pain and mid numbness in his left lower extremity. On examination, muscle strength was normal, reflexes were normal, and sensory examination was normal. The clinician found that the Veteran's "left lower extremity symptoms are not significant enough to warrant a diagnosis" and based a negative nexus opinion solely on the absence of a diagnosed disability. Because "pain in the absence of a presently-diagnosed condition can cause functional impairment" and the clinician did not specify whether the Veteran's symptoms caused any functional impairment, this opinion is inadequate. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). In his February 2017 Notice of Disagreement (NOD), the Veteran reported "intense stabbing pain" and sometimes needing help to put his shoes on. During the October 2019 hearing, the Veteran's spouse testified that she is a physician and that someone with the lumbar spine MRI findings listed in a January 2016 record would "absolutely" have radiculopathy into both lower extremities. The Veteran testified that he had knife-like pain in both legs as well as numbness and that these symptoms occasionally caused him to fall or to feel as if he were going to fall. He added that, after falling, he tended to lay on the ground. The Veteran's spouse added that this would last "most of the time 30 minutes" until the pain stopped and that this happened, on average, once a week. The Veteran added that this could happen anywhere from three times a week to a few times a month. The Veteran was afforded a VA examination for back conditions in March 2021 by the clinician who performed the October 2016 VA examination. At that time, the Veteran did not report any radiculopathy symptoms. The clinician's unfavorable opinion was again based solely on the absence of a diagnosed disability. Because a disability is considered current if present at any point during the period on appeal and this opinion did not address the Veteran's reports of symptoms, this opinion is inadequate, particularly when the Veteran has reported that his symptoms are intermittent. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."). The record contains three medical opinions: two from the same VA clinician and one from the Veteran's spouse. The VA clinician's opinions are inadequate for the reasons given above. The Veteran's spouse's opinion, which was based on her long-term observation of his symptoms and her review of the January 2016 lumbar MRI report, is therefore the most persuasive evidence of record. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran's favor, the most persuasive evidence weighs in favor of finding that the Veteran has left lower extremity radiculopathy that was caused by his service-connected low back disability. (Continued on the next page) Accordingly, the Board finds that granting service connection for left lower extremity radiculopathy is the decision that is the most consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.