Citation Nr: 1331494 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-20 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a neurological disorder of the left upper extremity (claimed as peripheral neuropathy). 2. Entitlement to service connection for a neurological disorder of the right upper extremity (claimed as peripheral neuropathy). 3. Entitlement to service connection for a neurological disorder of the left lower extremity (claimed as peripheral neuropathy). 4. Entitlement to service connection for a neurological disorder of the right lower extremity (claimed as peripheral neuropathy). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2009, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Atlanta, Georgia. A transcript of the hearing is in the claims file. This case was previously before the Board in April 2010 and May 2012. The issue of entitlement to service connection for a neurological disorder of the left and right upper extremities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDING OF FACT Competent and probative evidence indicates that during the course of the appeal, the Veteran had suffered from symptoms such as decreased sensation to light touch in the lower extremities, and a +1 deep tendon reflexes; he has been diagnosed as having lumbar radiculopathy. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the requirements for establishing service connection for bilateral lower extremity lumbar radiculopathy (claimed as peripheral neuropathy) have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). In light of the favorable decision being issued in this case, no further discussion of VCAA compliance is necessary. II. Service Connection In a rating decision in March 1999, the RO granted service connection for degenerative disc disease of the lumbar spine at L5-S1. In July 2004, the Veteran filed for service connection for bilateral lower extremity peripheral neuropathy. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Service treatment records dating from 1991 chronicle a long history of severe and chronic low back pain. Service treatment records dated in September 1996 advise of low back pain radiating into the left leg for the past three years. X-rays of the lumbar spine in September 2006 showed narrowing at L5-S1. Diagnosis was degenerative disc disease, L5-S1. An entry in October 1996 advises of low back pain with radiculopathy to the left buttock. Diagnosis was low back pain with sciatica. In 1998 the Veteran was separated from active duty service due lumbar degenerative disc disease, based on May 1998 Medical Board recommendation. In May 1999 the Veteran was accorded a VA neurological examination. Diagnosis was chronic low back pain radiating down the right leg. X-rays revealed loss of disc height at L5-S1. An MRI did not support or exclude the possibility of lumbar radiculopathy. Nerve conduction studies were recommended. EMG/NCV studies done by a private provider in November 2003 found generalized sensory greater than motor peripheral polyneuropathy of the bilateral upper and lower extremities, but no conclusive evidence of acute right or left lumbar radiculopathy. An MRI of the lumbar spine found moderate degenerative disc disease at L5-S1 with small central disc protrusion and no spinal stenosis and mild loss of height of the intervertebral disc space. Physical sensory examination of the bilateral legs found diminished sensation to light touch and pin prick over the bilateral feet and lower legs. Private treatment records dating from 2003 reflect a diagnosis of peripheral neuropathy. In December 2003 and March 2004 the provider stated that there was "evidence of peripheral neuropathy superimposed on degenerative disc disease in both the cervical and lumbar areas." On VA peripheral nerves examination in November 2004, the examiner noted that the in-service EMG [of the cervical spine] in February 1991 was normal, and that the private EMG in November 2003 found peripheral neuropathy but no evidence of radiculopathy. Physical examination found tenderness in the midline at L4-5, and over the right paraspinus muscles. Diagnosis was peripheral neuropathy by EMG; and chronic mechanical-type low back pain, related to the Veteran's degenerative disc disease of L5-S1. The examiner added that an exact probable etiology for the Veteran's EMG abnormalities had never been found, but that they did appear to begin in service. In July 2008 the Veteran reported to a VA emergency room secondary to low back pain. Diagnosis was "acute on chronic low back pain" and sciatica. On VA spine examination in April 2009 the examiner noted that the private EMG in 2003 found generalized sensory greater than motor peripheral polyneuropathy of the bilateral lower extremities, but no conclusive evidence of acute right or left lumbar radiculopathy. The examiner stated that in his view these results were inconclusive and did not confirm the presence of a peripheral neuropathy in the lower extremities. MRI of the lumbar spine revealed central herniation of the disc at L5-S1. Diagnosis was lumbar spine degenerative disc disease. In January 2010 the Veteran was examined by his VA primary care provider. During the examination he complained of paresthesia and numbness in the left upper extremity and bilateral lower extremities since 1991. Diagnosis was degenerative joint disease, cervical and lumbar spine. An EMG/NCV study was ordered. EMG/NCV studies done by VA in February 2010 found abnormal results "consistent with a mild sensory polyneuropathy involving the upper and lower extremity. VA medical records dating from October 2010, show peripheral sensory neuropathy as first among the Veteran's active problems. In January 2011 the RO sent the Veteran for examination by a private neurologist. Neurological examination found strength of 5/5 and symmetrical. Sensory examination found a decrease in pinprick sensation at the left L5-S1 root distribution. There was also a slight diminution of vibratory sense bilaterally in the toes. Preliminary diagnosis was low back discomfort; lumbar radiculopathy; and probable early peripheral neuropathy. Final diagnosis was lumbar radiculopathy. The neurologist noted that VA had only authorized the Veteran two visits with her, and recommended that an MRI scan of the lumbar spine be done to investigate his lumbar radiculopathy. VA medical records dating from February 2011, include lumbar radiculopathy and peripheral sensory neuropathy among the Veteran's active problems. On VA neurological examination in April 2011, the Veteran reported that he began noticing low back pain radiating to the anterior aspects of both legs in 1992. He said that this symptom worsened in 1992 despite continuous use of Ibuprofen. The examiner noted that the private EMG in 2003 found electrodiagnostic evidence of neuropathy in four extremities, but that an EMG by VA in 2004 did not show neuropathy of the right upper extremity or the feet. He also noted that an evaluation in April 2009 found no evidence of neuropathy in the lower extremities, and that an MRI of the lumbosacral spine in 2009 showed a small central disc protrusion at L5-S1 without significant canal stenosis or foraminal narrowing. He further remarked that "immunological profile for sensorimotor neuropathies in 2004 was negative." Neurovascular examination found 5/5 strength in four extremities, and sensations were preserved to all modalities (light tough, pinprick, vibration and proprioception) in four extremities. According to the examiner, there was no evidence of peripheral neuropathy or radiculopathy in the lower extremities, but there was evidence of muscle spasm in the lumbosacral area. In July 2012, another VA physician reviewed the claims file. She referred to the 2011 private neurologist's reports and said that it was "impossible to divine what physical findings [the private neurologist] referenced." She also stated that there were "technical issues" with the February 2010 EMG/NCV study done by VA, and that she was consequently unable to "trust any of the noted abnormal findings/conclusions," including the finding of mild sensory neuropathy. VA treatment records dated in 2012 note diagnoses of lumbar radiculopathy. A July 2012 note revealed decreased light touch in both thighs and left lateral calf and trace 1+ deep tendon reflexes. The diagnosis was L5/S1 radiculopathy. The evidence confirms that the Veteran suffered from radicular left lower extremity pain secondary to degenerative disc disease of the lumbar spine at L5-S1 (diagnosed as sciatica) during service; and he has since established service connection for degenerative disc disease of the lumbar spine at L5-S1. The Board acknowledges that the record is not consistent in showing objective findings of decreased sensation in the lower extremities, with such not found on the 2009 and 2011 VA examinations. However, objective findings were noted on the private neurological examination in 2011 and some VA treatment reports. Thus, there are diagnoses from neurologists both in favor and against the claim. At the time of the 2011 VA examination by a neurologist, there were no objective neurological findings. At the time of a neurological evaluation by a private neurologist, objective findings of decreased pinprick in the L5-S1 distribution was noted. Accordingly, the Board finds the evidence is in equipoise as to whether the Veteran suffers from lumbar radiculopathy. Thus, the Board will resolve all doubt in the Veteran's favor and grant service connection for lumbar radiculopathy of the lower extremities. ORDER Service connection for bilateral lower extremity lumbar radiculopathy (claimed as peripheral neuropathy) is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND As regards the claim for service connection for upper extremity peripheral neuropathy, the Board notes that the Veteran is not currently service connected for cervical disc disease; rather, he is service connected for cervical strain. The March 1999 rating decision granting service connection for that disability specifically indicated that there was no evidence of degenerative disc disease in the cervical spine. The record contains medical evidence with diagnoses including cervical radiculopathy and sensory polyneuropathy. Private treatment records dated in January 2011 noted complaints of neuropathy symptoms in the upper and lower extremities. Neurological testing noted impressions of right carpal tunnel syndrome, bilateral ulnar nerve compression at the elbow, early left carpal tunnel syndrome and bilateral C7 and right C5 radiculopathy. The private physician ultimately noted impressions of bilateral carpal tunnel syndrome, ulnar nerve compression at the elbow, and cervical radiculopathy. While the VA examiners did not find evidence of cervical radiculopathy or neurological diagnosis in the upper extremities, the private neurologist did, and referenced objective testing to conclude such. See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative). Thus, for at least some part of the claim, the Veteran has manifested a neurological disability of the upper extremity. However, it is unclear whether the Veteran's service-connected chronic cervical strain can be deemed a cause of the radiculopathy, versus the degenerative disc disease which is not currently service connected. Additionally, the July 2012 VA examiner opined that if the Veteran does have the upper extremity disabilities noted in the private neurologist's report, then they do not relate back to his military service. She noted the complaint of left arm weakness during service but that objective testing at that time revealed no neurological disability. She did not, however, address whether his current upper extremity neurological complaints were related to the Veteran's exposure to chemical solvents, including methyl ethyl ketone (MEK), during service. An additional opinion is needed. On remand relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA treatment records dating from July 2012 from VA Medical Center in Atlanta, to include associated clinics. 2. Send the claims file for review by a VA neurologist. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. For the purposes of the opinion, the examiner should assume that the diagnoses of bilateral carpal tunnel syndrome, left ulnar nerve compression, and cervical radiculopathy were present at the time of the January 2011 reports from Dr. Taylor. The neurologist is then requested to answer the following questions: a. Is it at least as likely as not (50% probability or greater) that the Veteran's service-connected cervical strain disability (as opposed to his degenerative disc disease of the cervical spine for which service connection has not been established) is the cause of the Veteran's cervical radiculopathy, carpal tunnel syndrome or left ulnar nerve compression? Please explain why or why not. b. Is it as least as likely as not (50 percent probability or greater) that the Veteran's neurological complaints in the right or left upper extremity are attributable to the Veteran's military service, to include the complaint of left arm weakness during service and exposure to chemical solvents (including methyl ethyl ketone (MEK)) during service. Please explain why or why not. 3. After completion of all of the above, readjudicate the claims for service connection. If the benefit sought remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford the appropriate time period to respond. Then return the case to the Board for appellate review, unless otherwise indicated. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs