Citation Nr: 1803182 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-16 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for left upper extremity (LUE) radiculopathy, claimed as secondary to service-connected C5/6 disc protrusion with flattening of the adjacent spinal cord. 2. Entitlement to a rating in excess of 10 percent for C5/6 disc protrusion with flattening of the adjacent spinal cord. 3. Entitlement to a rating in excess of 10 percent for right upper extremity (RUE) radiculopathy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1985 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record on appeal. The issues of entitlement to increased ratings for the Veteran's neck disability and RUE radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all doubt in the Veteran's favor, his currently diagnosed LUE radiculopathy is proximately due to his service-connected C5/6 disc protrusion with flattening of the adjacent spinal cord. CONCLUSION OF LAW The criteria for service connection for LUE radiculopathy have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.71a, Diagnostic Code 5240, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied if the veteran has a disability at the time she files her service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran is service-connected for C5/6 disc protrusion with flattening of the adjacent spinal cord, which is evaluated pursuant to Diagnostic Code 5240, General Rating Formula for Diseases and Injuries of the Spine. Note (1) to such formula provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). While the Veteran's current claim stems from a November 2009 filing, a historical review of the record reveals that, during a March 2002 VA cervical spine examination, the examiner documented the presence of bilateral upper extremity (BUE) radiculopathy. In connection with the current claim, VA treatment records show treatment for BUE radiculopathy, see June and August 2009 treatment records, and, while receiving authorized outpatient physical therapy in December 2009, the treating clinician noted a diagnosis of cervical spine radiculopathy with pain radiating down both arms and into the hands. Then, during a March 2010 VA examination, the Veteran inexplicably denied experiencing any LUE symptoms despite the fact he had been reported such during VA and outpatient treatment and had filed a claim for compensation for LUE radiculopathy. The following year, in August 2011, the Veteran underwent a foraminotomy for left C6 radiculopathy. Notably, during a subsequent February 2012 peripheral nerve examination, the examiner diagnosed the Veteran with mild incomplete paralysis of the ulnar nerve on the left side and opined that such condition was related to the Veteran's service-connected neck disability. Similarly, during an October 2012 VA examination, the examiner diagnosed the Veteran with mild left-sided radiculopathy. However, a January 2013 EMG was negative for compressive neuropathy, polyneuropathy, cervical radiculopathy, or myopathy of the left upper extremity. Thereafter, the evidence of record is in conflict as to whether LUE radiculopathy is present. In this regard, a March 2014 VA examiner diagnosed with mild left-sided radiculopathy while a July 2015 VA examiner found no LUE radiculopathy. Based on the foregoing, the Board finds that the evidence as to whether the Veteran has a diagnosis of LUE radiculopathy related to his neck disability during the pendency of his claim, or close in proximity thereto, is in relative equipoise. Therefore, the Board resolves all doubt in the Veteran's favor and finds that he has a currently diagnosed LUE radiculopathy that is proximately due to his service-connected C5/6 disc protrusion with flattening of the adjacent spinal cord. Therefore, service connection for such disorder is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.71a, Diagnostic Code 5240, General Rating Formula for Diseases and Injuries of the Spine, Note (1); Gilbert, supra. ORDER Service connection for LUE radiculopathy is granted. REMAND The Board finds that the Veteran's claim for an increased rating for his neck disability must be remanded in order to afford him a contemporaneous VA examination. In this regard, the March 2010, October 2012, March 2014, and July 2015 examinations conducted during the pendency of the claim do not contain all of the findings as required by the United States Court of Appeals for Veterans Claims (Court). Specifically, in Correia v. McDonald, 28 Vet. App. 158, 170 (2016), the Court found that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion (ROM) measurements of the opposite undamaged joint. Id. In this case, the examinations of record do not include ROM testing on active and passive motion and in weight-bearing and nonweight-bearing (although pain on weightbearing was noted in the 2015 report). Therefore, such testing should be accomplished in connection with the examination conducted on remand. Additionally, the examiner will be requested to offer a retrospective medical opinion as to the findings included in the prior examinations conducted during the appeal period. Further, the Court recently addressed 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In this regard, the Court concluded that, when a VA examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, the examiner must obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court further concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. Additionally, if the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In this case, the Veteran endorsed flare-ups during October 2012, March 2014, and July 2015 examinations, but the 2012 and 2014 examiners did not provide an opinion as to the additional loss of range of motion during a flare-up and the 2015 examiner did not obtain all procurable data prior to finding the limitations of function during a flare-up could not be expressed without resorting to mere speculation. Therefore, the VA examination conducted on remand should address the functional limitations associated with a flare-up of the Veteran's neck disability. The Board further finds that the issue of entitlement to a rating in excess of 10 percent for RUE radiculopathy is inextricably intertwined with the claim remanded herein as the ordered development will likely provide evidence as to the current severity of the Veteran's radiculopathy. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, as the Veteran receives ongoing treatment for his neck disability and associated RUE radiculopathy through VA facilities, updated treatment records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records dated from April 2015 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Afford the Veteran an appropriate VA examination to determine the nature and severity of his neck disability and associated RUE radiculopathy. The record, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include a discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. The examiner should identify the current nature and severity of all manifestations of the Veteran's neck disability. The examiner should record the range of motion of the neck observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. The examiner is requested to review the VA examinations containing range of motion findings pertinent to the Veteran's neck disability conducted in March 2010, October 2012, March 2014, and July 2015. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing. If the examiner is unable to do so, he or she should explain why. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. With specific regard to flare-ups, if the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner should note the severity of the Veteran's RUE radiculopathy, and report whether he has any associated neurological impairments other than BUE radiculopathy, and, if so, comment on the severity of such disorder. The examiner should also state whether the Veteran has intervertebral disc syndrome and, if so, the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner also should comment upon the functional impairment resulting from the Veteran's neck disability and RUE radiculopathy. All opinions expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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. §§ 5109B, 7112 (2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs