Citation Nr: 1716018 Decision Date: 05/11/17 Archive Date: 05/22/17 DOCKET NO. 10-15 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disabilities. 3. Entitlement to service connection for a neurologic disorder of the right upper extremity, to include as secondary to service-connected disabilities. 4. Entitlement to service connection for a neurologic disorder of the right lower extremity, to include as secondary to service-connected disabilities. 5. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1972 to June 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and January 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio and Atlanta, Georgia, respectively. Service connection for GERD was denied in a May 2003 rating decision. Subsequently, additional service treatment records were received. These records were not associated with the claims folder when VA previously decided the claim. As these records are pertinent to the claim, the claim is being reconsidered without regard to the finality of the May 2003 rating decision. 38 C.F.R. § 3.156(c). In May 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of those proceedings is of record. In January 2015, the Board, inter alia, remanded the issues on appeal for further development. As part of the Board's January 2015 decision, claims pertaining to a psychiatric disorder and allergies were remanded for the issuance of a statement of the case (SOC). The RO issued a SOC in December 2015 and the Veteran perfected her substantive appeal by filing a VA Form 9 in January 2016. At present, these claims have not been certified to the Board for appellate disposition. Furthermore, the Board acknowledges that increased rating and earlier effective date issues pertaining to PTSD and IBS have recently been perfected, by the August 2016 substantive appeal, but not yet certified to the Board. The Board's review of the claims file reveals that the RO may be still taking action on these issues. As such, the Board will not accept jurisdiction over these two issues at this time, but they will be the subject of a subsequent Board decision, if in order. The issues of entitlement to service connection for sleep apnea and GERD, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. Cervical radiculopathy of the right upper extremity is caused by service-connected degenerative disc disease of the cervical spine. 2. Lumbar radiculopathy of the right lower extremity is caused by service-connected residuals postoperative lumbar disc disease. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical radiculopathy of the right upper extremity have been met. 38 U.S.C.A. §§ 1110 1131, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). 2. The criteria for service connection for lumbar radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for neurologic disorders of the right upper and lower extremities. For the reasons that follow, the Board finds that service connection is warranted for cervical radiculopathy of the right upper extremity, and lumbar radiculopathy of the right lower extremity. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. A review of the medical evidence of record shows current diagnoses of lumbar and cervical radiculopathy, affecting the Veteran's right upper and lower extremities. See March 2017 examination report, authored by Dr. V.F. The lumbar radiculopathy relates to the disc impingement on the L5 and S1 nerve roots. See March 2017 examination report, authored by Dr. V.F.; December 2013 treatment record, authored by Dr. B.P. (Noting changes at L4-5 with a recurrent disc impinging on the S1 nerve root. July 2013 EMG study revealed changes in the L5 and S1 nerve roots.). The cervical radiculopathy relates to impingement of the left C6 nerve root. See March 2017 examination report, authored by Dr. V.F.; April 2014 treatment record, authored by Dr. B.P. (April 2014 EMG study showed evidence of cervical radiculopathy left C6 nerve root. The Veteran had an MRI scan earlier that demonstrated osteophyte disc complex at C5-6 more on the left than right.); March 2014 treatment record, authored by Dr. B.P. (patient has a history of cervical spine disease with radiculopathy left greater than right secondary to osteophyte disc complex at C5-6). The Board acknowledges that multiple VA examination reports have determined that there is no objective evidence of radiculopathy. See November 2015 Peripheral Nerve Conditions DBQ; March 2014 Back (Thoracolumbar Spine) Conditions DBQ; February 2013 Back (Thoracolumbar Spine) Conditions DBQ; March 2008 Compensation and Pension Examination [Cervical] Spine. The Board finds these determinations to be of lesser probative value because, in determining that there was no diagnosis of radiculopathy, none of the examiners discussed the ongoing neurological treatment provided by Dr. B.P., a private neurologist who had been treating the Veteran since the early 2000s. Treatment records from Dr. B.P. contained EMG and MRI studies that provided positive results confirming the radiculopathies. The Board also notes that as early as in 2007, a Dr. E-C had interpreted an EMG study of the upper extremities to show C5-8 radiculopathy bilaterally, more severe on the left than right. See August 2007 treatment record from Dr. S.T.P. (this treatment record documented Dr. E-C's interpretation). Accordingly, the Board finds the March 2017 private medical examination and opinion authored by Dr. V.F. to be most persuasive because it was based on a complete evaluation of the Veteran's medical history, to include the Veteran's ongoing neurological treatment by Dr. B.P. The Veteran does have current diagnoses of lumbar and cervical radiculopathy of the right upper and lower extremities; the first element of service connection is met. The Board also finds that the cervical radiculopathy of the right upper extremity is secondary to service-connected degenerative disc disease, cervical spine, and that the lumbar radiculopathy of the right lower extremity is secondary to service-connected residuals postoperative lumbar disc disease. This determination is based on the March 2017 private medical examination and opinion authored by Dr. V.F. and the neurological treatment records from Dr. B.P. The Board notes that in his opinion, Dr. V.F. even explicitly wrote that "[t]hese findings are all consistent with progressively worsening lumbar and cervical degenerative disc disease putting pressure on the nerve roots causing radiculopathy to all four extremities... dating back to at least 2007" and "it is my medical opinion that the Veteran's service-connected lumbar and cervical spine conditions have caused radiculopathy in the right upper and lower extremities." The elements of service connection have been met. Service connection for cervical radiculopathy, right upper extremity, secondary to degenerative disc disease, cervical spine, is warranted. Service connection for lumbar radiculopathy, right lower extremity, secondary to residuals postoperative lumbar disc disease is warranted. All reasonable doubt was resolved in the Veteran's favor in reaching this conclusion. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for cervical radiculopathy of the right upper extremity as secondary to degenerative disc disease, cervical spine is granted. Service connection for lumbar radiculopathy of the right lower extremity as secondary to residuals postoperative lumbar disc disease is granted. REMAND Further development of the remaining claims on appeal is required. On remand, any outstanding VA treatment records should be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(c). Sleep Apnea In January 2015, the Board remanded the issue of service connection for sleep apnea for a VA examination and opinion. The examiner was specifically requested to opine as to whether the sleep apnea is related to or had its onset during service (i.e. direct causation); or is either caused or aggravated by any of the Veteran's service-connected disabilities. A VA examination was conducted in November 2015, but there was no opinion provided as to direct causation. Thus, the medical opinion is inadequate and must be returned for a supplemental opinion to address this theory of causation. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Stegall v. West, 11 Vet. App. 268, 271 (1998). GERD In January 2015, the Board remanded the issue of service connection for GERD for a VA examination and opinion. A VA examination was conducted in November 2015, but the examiner's opinion is based on an incorrect factual premise. The examiner indicted that the Veteran did not experience any signs or symptoms of GERD between 2003 and 2009; however, the Board notes that treatment records from Dr. J.M. dated in October 2004 and January 2005 show complaints of GERD-related symptoms and treatment with Prevacid. Therefore, the medical opinion is inadequate to decide the claim. Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (concluding that an inadequate medical examination frustrates judicial review); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). On remand, the Veteran should be afforded a new examination to determine the nature and etiology of her GERD. TDIU The Veteran seeks entitlement to a TDIU. The Board has awarded service connection for lumbar and cervical radiculopathy in this decision. The Board is also remanding the issues of service connection for obstructive sleep apnea and GERD, which may affect the claim for a TDIU. Thus, these claims are inextricably intertwined and a Board decision on the TDIU claim at this time would be premature. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Obtain a supplemental medical opinion on the etiology of the Veteran's sleep apnea and GERD. If possible, the opinion should be authored by the same examiner that conducted the November 2015 VA examination. If that examiner is unable to provide the requested opinion, the new examiner should review the claims file prior to providing his or her opinion. a) The examiner is to indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea had its onset during, or is otherwise related to, her active military service. A complete rationale must be provided. The rationale should reflect consideration of the Veteran's description of her in-service symptomatology such as difficulty sleeping. b). The examiner is to indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's GERD was either proximately caused by or, aggravated by any service-connected disability or disabilities. The examiner should note that this question requires two opinions: one for proximate causation and a second for aggravation. The term "aggravation" means a permanent worsening of a disability beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity for the GERD prior to aggravation by the service-connected disability or disabilities. A complete rationale for these opinions must be provided. The examiner is to consider the Veteran's lay statements regarding the onset and recurrence of her symptoms. The examiner is also advised that October 2002 VA examination, which diagnosed mild esophageal reflux disease, was conducted only several months after the Veteran's discharge from active service. The examiner is further advised that there are signs and symptoms of GERD during the period of 2003 to 2009, as evidenced in the October 2004 and January 2005 treatment records from Dr. J.M. 3. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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 remanded by the Board 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. ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs