PERIPHERAL NERVE DISORDERS

Summary

The veteran, who served in the U.S. Army from December 1975 to December 1978, appeals the denial of service connection for bilateral lower extremity radiculopathy. The veteran contended that the condition was due to a service-connected disability (lumbar strain) and also arose from an in-service injury, with ongoing pain since service. The Board acknowledged the veteran's testimony regarding his symptoms and the occurrence of ongoing pain, finding his statements credible regarding continuity of symptoms. However, the veteran's service treatment records from his October 1978 discharge examination showed normal lower extremities and neurological systems, with no complaints of leg cramping or knee issues. The Board noted that the veteran did not report radiculopathy symptoms until September 2018, with a diagnosis in June 2019, many years after service. A July 2019 VA examination found the radiculopathy to be mild but concluded it was less likely than not proximately caused by the service-connected lumbar strain, attributing the symptoms to normal aging or post-service overuse. The Board found the VA examination highly probative, outweighing the veteran's lay statements, and concluded that the radiculopathy did not begin during service or manifest within one year of separation. Therefore, service connection was denied on direct and presumptive bases, as well as on a secondary basis due to the unfavorable nexus opinion regarding the lumbar strain. The Board also found the evidence against continuity of symptomatology.

Rationale

No in-service complaints or diagnosis of radiculopathy.; Discharge examination showed normal neurological system and lower extremities.; First complaints and diagnosis occurred many years after service.; VA examiner found less likely than not related to service-connected lumbar strain.; Symptoms attributed to aging or post-service overuse.; Evidence weighed against continuity of symptomatology.

Full Decision Text

Citation Nr: A22007948
Decision Date: 05/02/22	Archive Date: 05/02/22

DOCKET NO. 190911-30177
DATE: May 2, 2022

ORDER

Entitlement to service connection for bilateral lower extremity radiculopathy, to include as due to a service connected disability, is denied. 

FINDING OF FACT

The weight of the competent and credible evidence is against finding that the Veteran's bilateral lower extremity radiculopathy is attributable to service and his bilateral lower extremity radiculopathy is not otherwise etiologically secondary (caused or aggravated) to his service-connected low back strain.

CONCLUSION OF LAW

The criteria for service connection for bilateral lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2021).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Army from December 1975 to December 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In September 2019, the Veteran filed a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and elected the hearing lane. Under the hearing lane, the Board reviews the claims based on the evidence of record at the time of the prior rating, and evidence received within 90 days following receipt of after the hearing. 38 C.F.R. § 20.303.

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2021.  A transcript of that hearing has been associated with the claims file.

The Board acknowledges the Veteran submitted evidence after the rating decision on appeal and after more than 90 days after his Board hearing.  Therefore, if the Veteran wants the evidence to be considered, he must submit a supplemental claim.

                                    Service Connection

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131.  To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004).

For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309.

A disability which is proximately due to, or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a).  Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310 (b).

Bilateral Lower Extremity Radiculopathy

The Veteran contends that his bilateral lower extremity radiculopathy was due to his service-connected disability.  In addition, the Veteran contends that his radiculopathy is due to an in
 which is proximately due to, or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a).  Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310 (b).

Bilateral Lower Extremity Radiculopathy

The Veteran contends that his bilateral lower extremity radiculopathy was due to his service-connected disability.  In addition, the Veteran contends that his radiculopathy is due to an in-service injury, and he has had ongoing pain since service.  The Veteran is competent to describe his ongoing symptoms, in-service duties, and the occurrence of ongoing symptoms since service, and to this extent, his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The question for the Board is whether the Veteran has a current bilateral lower extremity radiculopathy that began during service or is at least as likely as not related to an in-service injury, event or disease; or is proximately caused or aggravated by a current service-connected disability.

The Veteran has a diagnosis of bilateral lower extremity radiculopathy. 

The Veteran's STRs have been associated with the claims file. In an October 1978 report of discharge medical examination, the clinical evaluation revealed normal lower extremities and neurological system. During the report of medical history, the Veteran reported that he was in good health and not on any medications. The Veteran denied ever having cramps in his legs or ever having tricked or locked knee.  See July 2016 STR-Medical, p.6-8. 

During a December 2016 back VA examination, the examiner indicated that the Veteran did not have radiculopathy. 

In a September 2018 VA treatment record, a clinician noted that the Veteran did not have peripheral edema or joint swelling. However, the Veteran did report chronic joint pain, in his neck, knees and ankles.   See January 2019 Capri, p.7.  

In a March 2019 VA treatment record, the Veteran reported having chronic back pain for 5 years with intermittent pain radiating into his right side.  See March 2019 Capri, p.1. 

In a July 2019 back VA examination, the examiner noted that the Veteran was diagnosed with bilateral lower extremity radiculopathy in June 2019.  The examiner noted that the Veteran had radiculopathy that was mild with intermittent pain; paresthesias/ dysesthesias and numbness. The overall severity of the Veteran's radiculopathy was mild.  However, the examiner found that the Veteran's lumbosacral strain did not cause his lumbar arthritis, degenerative disc or radiculopathy.  The examiner stated that it was most likely the symptoms were due to the Veteran's degenerative arthritis and not the diagnosis of a strain which resolved over time. The examiner found that it was less likely than not that the Veteran's radiculopathy was proximately caused by his lumbar strain.  The examiner stated that there was no medical evidence that the Veteran's lower extremity radiculopathy was proximately due to or the result of lumbar condition.  The examiner stated that he reviewed the evidence.  The examiner indicated that strains were inflammation of the muscles and ligaments and would not affect facet joints or vertebral discs or cause radiculopathy. The examiner stated that the likely cause was normal aging process or post service overuse or injury.  

In July 2021, the Veteran attended a virtual Board hearing.  The Veteran testified that none of his doctors had linked his radiculopathy to his lower back and he indicated that he did not injury his legs in-service.  The Veteran testified that he did not know when his leg radiculopathy began but it had begun years ago.  He referred to imaging studies that showed vertebras compressing against his spinal cord.  He acknowledged that in service he was diagnosed only with lumbar strain but that he now had degenerative disc disease.  He described symptoms of numbness, burning and pins and needles, all the way from the top of his hip to his left foot. Not in both legs just his left leg. He stated it was partially in his right foot but not in his right leg.  See July 2021 Hearing Transcript.

There is no indication that the Veteran received treatment for radiculopathy while he was in service. His neurological system and lower extremities were determined to be normal in his October 1978 discharge
 began but it had begun years ago.  He referred to imaging studies that showed vertebras compressing against his spinal cord.  He acknowledged that in service he was diagnosed only with lumbar strain but that he now had degenerative disc disease.  He described symptoms of numbness, burning and pins and needles, all the way from the top of his hip to his left foot. Not in both legs just his left leg. He stated it was partially in his right foot but not in his right leg.  See July 2021 Hearing Transcript.

There is no indication that the Veteran received treatment for radiculopathy while he was in service. His neurological system and lower extremities were determined to be normal in his October 1978 discharge examination. The Veteran also self-completed several Report of Medical History forms, and explicitly denied ever experiencing leg cramping or tricked or locked knee. 

The claims file does not reflect treatment or complaints of radiculopathy until September 2018 when the Veteran reported back and radiating that had begun 5 years before that time.  The Veteran was diagnosed with radiculopathy in June 2019. 

The record does not support that the Veteran is entitled to service connection for bilateral lower extremity radiculopathy on a direct basis. There is nothing in the Veterans STRs which reveal that the Veteran had radiculopathy. The Veteran has not provided any lay statements regarding in-service symptoms and denied having any symptoms of radiculopathy in-service during his July 2021 Board hearing. The Board concludes that service connection is not warranted as the Veteran's lower extremity radiculopathy did not begin during service and is not attributable to service.

In addition, bilateral lower extremity radiculopathy was not "noted" within one year of separation. See Walker, 708 F.3d 1331.  Based on the probative evidence of record the Board finds that he Veteran's radiculopathy did not manifest within the one-year period after service as he was not diagnosed until June 2019, many years after service and the first complaints were in 2018.  Therefore, service connection is not warranted on a presumptive basis. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted.

As to secondary service connection, the Veteran contends that his bilateral lower extremity radiculopathy is due to his service-connected low back disability. The Veteran is currently service connected for his lumbar strain. As noted above the Board finds that the July 2019 VA examination which notes that the Veteran's bilateral radiculopathy was less likely than not proximately due to or the result of the Veteran's service-connected low back disability. The examiner indicated that strains were inflammation of the muscles and ligaments and would not affect facet joints or vertebral discs or cause radiculopathy; and that the likely cause was normal aging process or post service overuse or injury.  As such the examiner found that the Veteran's bilateral lower extremity radiculopathy is less likely than not proximately due to or the result of the Veteran's service-connected lumbar spine disability.  In addition, the Veteran testified that doctors told him, that they were not sure if his back condition caused his radiculopathy.  The Board finds that the VA examination is of high probative value and the Veteran's and associated lay statements as to secondary service connection are outweighed by the credible and probative medical evidence of record, which weighs against the claim. As such service connection on a secondary basis is not warranted.

The Board considered whether the evidence in the record is sufficient to show that lumbar degenerative disc disease is a residual, progression, or revised diagnosis of his in service connected lumbar strain, but the evidence which the Board may review does not support that finding.  The Veteran is advised that he may submit a supplemental claim for service connection for degenerative disc disease and associated radiculopathy if desired.  

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The Board finds that the weight of the evidence is against the Veteran's claim for service connection for a bilateral lower extremity radiculopathy disability, to include as due to his service-connected lumbar spine disability. Since the weight of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

 

 

J.W. FR
 of the evidence is against the Veteran's claim for service connection for a bilateral lower extremity radiculopathy disability, to include as due to his service-connected lumbar spine disability. Since the weight of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

 

 

J.W. FRANCIS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Long-Ellis, Associate 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.