Entitlement to service connection for radiculopathy of left and right lower legs is granted
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Citation Nr: A20006189 Decision Date: 04/18/20 Archive Date: 04/18/20 DOCKET NO. 190813-25880 DATE: April 18, 2020 ORDER Entitlement to service connection for radiculopathy of left lower extremity (claimed as leg pains) is granted. Entitlement to service connection for radiculopathy of right lower extremity (claimed as leg pains) is granted. Entitlement to an increased evaluation for tension headache disability is denied. Entitlement to service connection for left knee condition is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for right foot condition is remanded. Entitlement to service connection for hemorrhoids is remanded. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the Veteran’s current bilateral lower extremity radiculopathy is due to his service-connected lumbar spine disorder. 2. A medical opinion links the cause of the Veteran’s left knee disability to the Veteran’s service-connected right knee disability. 3. The Veteran's tension headaches are not productive of characteristic prostrating attacks. CONCLUSIONS OF LAW 1. The criteria for service connection for radiculopathy of the right lower extremity (claimed as leg pain) as secondary to the lumbar spine degenerative disc disease (DDD), are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for radiculopathy of the left lower extremity (claimed as leg pain) as secondary to the lumbar spine DDD, are met. 38 U.S.C. §§ 1110 , 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for a compensable evaluation for tension headaches has not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107 (a)(2). The Veteran served on active duty from July 1995 to April 1999. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2019 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran appealed the rating decision and requested the Evidence Review lane. 38 C.F.R. § 19.2 (d). This option allows for the submission of additional evidence for up to 90 days from the date of receipt of the VA Form 10182. The Board notes that despite this election, the Veteran’s newly retained counsel submitted an updated VA Form 10182 in January 2020 which attempted to withdraw the prior selection of the Evidence Lane in favor of the Direct Review option. While switching dockets is sometimes permissible under the AMA, the Board finds the Veteran’s selection in this case was improper. Pursuant to 38 C.F.R. § 20.202(c)(2), such a request will not be honored “if the appellant has submitted evidence or testimony.” A review of the record reveals that the Veteran availed himself of the Evidence Lane provisions for submitting evidence during the appropriate window, thus the Veteran is barred from switching from the Evidence Lane to the Direct Review lane. Be that as it may, this prohibition amounts to no more than harmless error as the Direct Review option merely expedites the placement of the case with the Board. As the matter has already been placed in the Board’s purview with the additional evidence submitted by the Veteran, the request for direct review has been, in effect, accomplished. Service Connection Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for radiculopathy of left lower extremity (claimed as leg pains) 2. Entitlement to service connection for radiculopathy of right lower extremity (claimed as leg pains) For the reasons that follow, the Board finds that service connection is warranted for bilateral lower extremity radiculopathy as secondary to the service-connected lumbar spine disability. The foregoing analysis will focus entirely on the third element of service connection on a secondary basis as the Board is bound by the favorable findings identified in the appealed rating decision. Specifically, the July 2019 rating decision favorably found that a February 2019 Miami VAMC treatment record noted lumbar radiculopathy (sciatica) of the both the right and left legs, and that the Veteran is service connected for lumbar spine DDD. A medical nexus between the current condition and service-connected disability are met by the October 2018 private examiner's conclusion that the Veteran’s current radiculopathy condition is due to his lumbar spine disability. In arriving at this conclusion, the examiner submitted a Back Conditions Disability Benefits Questionnaire (DBQ) which noted consideration of the entire medical history associated with the claims file and the Veteran's lay statements. The DBQ reflects findings of bilateral lower extremity radiculopathy associated with the lumbar spine. The Board finds that this opinion, coupled with the Veteran’s statements, sufficient to rely upon in awarding service connection for bilateral lower extremity radiculopathy as secondary to the Veteran’s service-connected lumbar spine disability. In coming to this conclusion, the Board acknowledges that there is some conflicting evidence associated with the record which appears to dispute the findings assessed by the private examiner. However, as noted above, the Board is bound by the favorable findings assessed by the July 2019 rating decision on appeal which found the record sufficient to satisfy the first element of service connection, a current disability. Moreover, there is no medical opinion associated with the record during the period on appeal to contradict the October 2018 private examiner’s positive conclusion. The Board also notes that potentially relevant medical documentation has been associated with the record subsequent to the statutorily permissible time frame of evidence review, but these materials were not considered in this analysis due to the aforementioned prohibition. Therefore, the Board finds that the evidence of record is sufficient on the particular facts and circumstances of the instant case to establish service connection for bilateral lower extremity radiculopathy secondary to the service-connected lumbar spine DDD. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 3.310. 3. Entitlement to service connection for a left knee disability. The Veteran primarily contends that he has a left knee disability due to his already service-connected right knee disability. See March 2019 VA Form 21-526EZ (“Secondary Disabilities:…left knee patellar pain syndrome (secondary to: right knee”). Given the evidence of record, the Board finds that service connection for a left knee disability is not warranted on either a direct or secondary basis. The July 2019 rating decision established a favorable finding of a current disability; thus, the first element of service connection is established, and the following analysis will focus on the remaining elements. As an initial matter, the Board notes that Veteran does not claim, nor does the evidence reflect any left knee pathology during service or for many years thereafter or disclose any suggestion that the current left knee disability is directly related to service. See i.e. January 1999 Report of Medical History (“R knee is painful); August 2008 Primary Care note (“c/o joint pains in knees…believes it is due to excess weight. Formerly weighed 169 pounds in 1999 then started gaining weight when he left the military”); . Thus, the Board finds that there is no evidence of record to support a theory of entitlement to service connection for the left knee on either a presumptive or direct basis, to include the Veteran’s lay statements which only allege a theory of secondary entitlement. Regarding service connection on a secondary basis, the record contains a cursory private medical opinion dated in October 2018, that links the Veteran’s left knee disability to the service-connected right knee disability. This physician stated the Veteran’s left knee pathology, which he identified as knee tendonitis/tendinosis; osteoarthritis; and patellofemoral pain syndrome, was due to the excess wear and tear on the left knee caused by its overuse due to the service-connected right knee. Although the precise nature of this overuse was not described, there appears to be no contradictory medical opinion in the record. As such, it may not be concluded the greater weight of the evidence is against the claim. Accordingly, a basis upon which to establish service connection for left knee disability has been presented. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Entitlement to an increased initial evaluation for tension headache disability. The Veteran seeks entitlement to an initial compensable disability rating for his service-connected tension headaches. Tension headaches are rated as analogous to migraine headaches under Diagnostic Code 8100. 38 C.F.R. §§ 4.20, 4.27, 4.124a. The July 2019 rating decision awarded service connection for tension headaches and assigned a noncompensable evaluation under DC 8100, effective May 7, 2019. The Board finds that a compensable disability rating is not warranted at any point during the period on appeal. Diagnostic Code 8100 provides for a 10 percent rating for characteristic prostrating attacks occurring an average of once every two months over the several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. The Board observes that the rating criteria does not define "prostrating," nor has the Court. Fenderson v. West, 12 Vet. App. 119 (1999) (reciting Diagnostic Code 8100 verbatim, but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), "prostration" is defined as "extreme exhaustion or powerlessness." As an initial matter, the Board notes that the Veteran appears to only have disagreed with the evaluation of the disability, rather than the effective date, which limits the evidentiary record to the period running from May 2019 to July 24, 2019, and the subsequent 90 day Evidence Lane window. [See August 2019 Veteran correspondence “The third item I want to add additional evidence to is for headaches. I was awarded a non-compensable rating for this condition. I wrote to the VA on August 1, 2019 in order to appeal the decision made about the severity of the headaches that I experience.”] This evidence includes a June 2019 VA examination report. At that examination, the Veteran reported a worsening since the 1996 onset requiring escalation of pain medication, currently treated with daily Naproxen. He described he had constant head pain, pulsating/throbbing pain, and pain on both sides of the head worsened with physical activity. Non-headache symptoms consisted of nausea, vomiting, sensitivity to light, sensitivity to sound and changes in vision. Location of pain was noted as both sides of the head. The examiner noted that the Veteran did not have characteristic prostrating attacks. Although the Veteran asserted in statements to the RO his headaches were more severe than depicted by the VA examiner, the Board considers the report of a disinterested medical professional of greater probative value than the Veteran’s personal statement given in this context. As the most probative record during the evidence window does not show characteristic prostrating attacks, a compensable rating is not indicted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran was afforded a VA examination for his sleep apnea in July 2019. The examiner concluded that the disability was at least as likely as not related to service, but in explaining this conclusion appears to refer to evidence unrelated to this Veteran, implying treatment for it in service, and records of its management in documents that do not appear to have a point of reference in the Veteran’s file. Providing the Veteran with an inadequate examination is a pre-decisional duty to assist error; and therefore, must be remanded. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board additionally notes, as indicated in the indented paragraphs below, that the above determination is based upon the materials associated with the claims file within the period of permissible review. Thus, the above-noted deficiency may have already been cured by the addition of evidence outside of this window and further development may not be necessary. 2. Entitlement to service connection for right foot condition is remanded. 3. Entitlement to service connection for hemorrhoids is remanded. In connection with his current claim the Veteran has not been afforded a VA examination for his right foot or hemorrhoids. Since private medical opinions in October and November 2018, suggest a link with service, albeit with little rationale, the duty to examine the Veteran and obtain a medical opinion has been triggered. As with the sleep apnea issue, this determination is based upon the materials associated with the claims file within the period of permissible review. Thus, the deficiency may have already been cured by the addition of evidence outside of this window and further development may not be necessary. The matters are REMANDED for the following action: 1. Make arrangements for a VA examination and medical opinion to be obtained, (unless it is determined that evidence added outside of the reviewed time frame is sufficient, ie. a recent clarifying VA examination or addendum opinion), concerning the Veteran’s claimed (a) sleep apnea; AND (b) hemorrhoids; AND (c) right foot condition. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder should be available for review by the examiner in conjunction with the examination/medical opinion. Based on the examination and review of the record, the examiner should address the following: (A) Whether it is at least as likely as not (i.e., 50% or greater probability) that any diagnosed sleep apnea disorder; hemorrhoid disorder; and right foot disorder had its clinical onset during active service or is related to any incident of service. (B) Whether it is at least as likely as not (i.e., 50% or greater probability) that any diagnosed sleep apnea; right foot disorder; or hemorrhoid disorder was either (i) caused by, or (ii) aggravated by (worsened) any service-connected disability, including tinnitus with regards to sleep apnea; or service-connected musculoskeletal condition (lumbar spine and/or right knee condition) with regards to the right foot and hemorrhoids. The clinician should consider and discuss the lay evidence and medical opinions associated with the claims file including the October 2018 and November 2018 reports of private examiner Dr. Craig Bash and the various internet articles submitted by the Veteran in support of his claim. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Readjudicate the claims. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.