Citation Nr: 22017352 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-15 218 DATE: March 24, 2022 ORDER Entitlement to service connection for a left lower extremity disability (claimed as neuropathy or radiculopathy) is granted. Entitlement to service connection for a right lower extremity disability (claimed as neuropathy or radiculopathy) is dismissed. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his left lower extremity disability, diagnosed as neuropathy and radiculopathy, is at least as likely as not related to his service-connected disabilities. 2. The January 2021 rating decision, issued during the pendency of the appeal, granting service connection for radiculopathy of the right lower extremity is a complete grant of the benefits sought on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left lower extremity disability have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The issue of entitlement to service connection for a right lower extremity disability has been rendered moot by the grant of service connection for right lower radiculopathy in the January 2021 rating decision, leaving no question of fact or law to be decided by the Board. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1978 to October 1981 and from November 1987 to November 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2015 Department of Veterans Affairs (VA) rating decision. In an October 2019 decision, the Board denied the Veteran's claims for entitlement to service connection for bilateral neuropathy of the lower extremities. The Veteran appealed this decision to United States Court of Appeals for Veterans Claims (Court). In August 2020, the parties filed a Joint Motion for Partial Remand (JMPR), which the Court granted in an Order that same month, partially vacating the Board's decision as to service connection for bilateral neuropathy of the lower extremities. The Court remanded the claim to the Board for further development and re-adjudication in compliance with directives specified. In January 2021, the Board remanded these claims for additional development to ensure compliance with the JMPR. They have returned to the Board for further appellate review. As discussed in detail below, a January 2021 rating decision, issued during the pendency of the appeal, granted service connection for right lower extremity disability as radiculopathy, resolving the Veteran's claims as to the right lower extremity. An increased rating claim for radiculopathy of the right lower extremity was remanded in a September 2021 Board decision. This matter is currently under development with the RO and is not before the Board at this time. 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). Entitlement to service connection for a left lower extremity disability. The Veteran contends that his left lower extremity disability, initially claimed as neuropathy of the left lower extremity, is secondary to a service-connected condition. The Veteran's August 2019 informal hearing presentation (IHP) characterized the neuropathy claim as service connection for paralysis of sciatic nerve (neuropathy of the right lower extremity). The Veteran's January 2020 IHP characterized the claim as service connection for left lower extremity radiculopathy or neuropathy. The 2020 IHP suggested that the Veteran may have neurological symptoms in his lower extremities related to his service-connected back disability or his service-connected residuals of cold injury in his feet. The Veteran has a current diagnosis for neuropathy/radiculopathy of the bilateral lower extremities with incomplete paralysis of the sciatic nerves. The Veteran has been service connected for a back disability and residuals of cold injury to the bilateral lower extremities since 1991. As an initial matter, the Board notes that the Veteran was awarded increased ratings for the residuals of cold injury of the bilateral lower extremities in a November 2020 rating decision. A September 2021 Board decision awarded additional increases to the Veteran's ratings for the residuals of cold injury, as enacted in a September 2021 rating decision. These increased ratings are based, in part, on neurological symptoms of pain, tingling, numbness, cold sensitivity, and locally impaired sensation in the Veteran's feet/ankles attributed to his cold injury. The record does not suggest that the Veteran's bilateral lower extremity residuals of cold injury are manifested by additional neurological symptoms not already contemplated in the increased ratings for residuals of cold injury. The Veteran's service treatment records are silent as to complaints, treatment, or diagnosis for radiculopathy or neuropathy of the left lower extremity. In an August 2010 VA examination for joints, the Veteran reported back pain that begins in the lower back and goes to the back of the thigh and up to the knee area. The Veteran reported that the pain is occasionally accompanied by tingling. In an October 2015 VA examination for back (thoracolumbar spine) conditions, the Veteran reported that his legs get achy and tingle at times, localizing the tingling to bilateral lateral and posterior lower leg. The Veteran also reported tingling in both feet. In primary care nursing notes from March 2016 and April 2016, the Veteran reported chronic pain in his legs and feet. In an October 2020 VA examination for back (thoracolumbar spine) conditions, the Veteran was diagnosed with sciatic lumbar radiculopathy of the right lower extremity. The Veteran reported intermittent sharp, stabbing pain radiating down his right leg. The Veteran also reported numbness and tingling radiating down his right leg. The examiner found decreased sensation to light touch in the Veteran's right lower leg/ankle and foot/toes. The examiner found radiculopathy involving the sciatic nerve of moderate severity. In an April 2021 VA examination for peripheral nerve conditions, the Veteran was diagnosed with bilateral lower extremity neuropathy with incomplete paralysis of the sciatic nerve. The Veteran reported that his back pain radiates down his legs with numbness and tingling. The examiner found moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the Veteran's right and left lower extremities. The examiner also found reduced muscle strength of ankle plantar flexion. The examiner found bilateral decreased sensation for light touch in the Veteran's thigh/knee, lower leg/ankle, and foot/toes. The examiner found moderately severe incomplete paralysis of the Veteran's sciatic nerve. The examiner found that the Veteran's bilateral neuropathy/radiculopathy of the lower extremities is at least as likely as not (50 percent probability) a result of the Veteran's service-connected lower back disability. The examiner explained that the Veteran's neuropathy is caused by the pinching, inflammation, and irritation of nerves that run from the lower back to the lower extremities. In September 2021 and November 2021 addendum opinions, a separate examiner clarified that the Veteran's neuropathy symptoms, including radiating pain down the legs with numbness and pain, are consistent with bilateral sciatic radiculopathies associated with his service-connected back disability. Considering the above, the Board finds that the evidence of record is at least in relative equipoise as to whether the Veteran's left lower extremity neurological disability, diagnosed as neuropathy and radiculopathy, is related to his service-connected back disability. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). As the Veteran is already service connected for residuals of cold, which includes neurological symptoms of pain, numbness, cold sensitivity, and locally impaired sensation of the left lower extremity, the Board has considered whether the award of service connection for another neurological disability of the left lower extremity would violate the prohibition against pyramiding (the evaluation of the same disability or manifestation of symptoms under multiple rating criteria) in 38 C.F.R. § 4.14. However, the Board finds that the neurological symptoms of the Veteran's residuals of cold are sufficiently separate and distinct from the symptoms of neuropathy/radiculopathy associated with the Veteran's back disability, so as not to constitute as "pyramiding". The record indicates that the Veteran's cold residuals manifest in localized neurological symptoms in the Veteran's feet/ankles and the Veteran's back disability manifest neurological symptoms radiating from the Veteran's back down into his legs. Therefore, the Board finds that service connection for left lower extremity disability, diagnosed as neuropathy and radiculopathy, is warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. The extent of the problems is not before the Board at this time. Entitlement to service connection for a right lower extremity disability. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on appeal of a denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007). The Veteran filed a claim for entitlement to service connection for neuropathy of the right lower extremity (later more broadly characterized as paralysis of the sciatic nerve, neuropathy, or radiculopathy). During the pendency of the appeal, a January 2021 rating decision granted service connection for a right lower extremity disability, radiculopathy of the right lower extremity. The Veteran was assigned a 20 percent disability rating for this condition under DC 8520 for paralysis of the sciatic nerve. 38 U.S.C. § 4.124a. The January 2021 grant of service connection for radiculopathy of the right lower extremity is considered a complete grant of the benefits sought on appeal. Thus, the issue of entitlement to service connection for a right lower extremity disability has been rendered moot by the grant of service connection for radiculopathy of the right lower extremity in the January 2021 rating decision. (Continued on the next page) As there remains no question of law or fact for the Board to decide; the appeal for service connection for a right lower extremity disability must be dismissed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg 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.