Citation Nr: 18144468 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-17 900 DATE: October 25, 2018 ORDER Entitlement to service connection for cervical radiculopathy, affecting the right upper extremity, as secondary to cervical strain is granted. Entitlement to service connection for lumbar radiculopathy, affecting the right lower extremity (claimed as peripheral neuropathy, right lower extremity) as secondary to lumbar sprain is granted. Entitlement to service connection for lumbar radiculopathy, affecting the left lower extremity (claimed as peripheral neuropathy, left lower extremity) as secondary to lumbar sprain is granted. REMANDED Entitlement to an increased evaluation for cervical strain, rated as 20 percent disabling, is remanded. Entitlement to an increased evaluation for lumbar sprain, rated as 20 percent disabling, is remanded. Entitlement to an increased evaluation for shoulder impingement syndrome with degenerative joint disease, affecting the right shoulder, rated as 10 percent disabling, is remanded. Entitlement to an increased evaluation for shoulder impingement syndrome with degenerative joint disease, affecting the left shoulder, rated as 10 percent disabling, is remanded. FINDINGS OF FACT 1. The Veteran is service connected for cervical strain. 2. Resolving reasonable doubt in the Veteran’s favor, his cervical radiculopathy, affecting the right upper extremity, is proximately due to his service-connected cervical strain. 3. The Veteran is service connected for lumbar sprain. 4. Resolving reasonable doubt in the Veteran’s favor, his lumbar radiculopathy, affecting the right lower extremity, is proximately due to his service-connected lumbar sprain. 5. Resolving reasonable doubt in the Veteran’s favor, his lumbar radiculopathy, affecting the left lower extremity, is proximately due to his service-connected lumbar sprain. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for cervical radiculopathy, affecting the right upper extremity are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for secondary service connection for lumbar radiculopathy, affecting the bilateral lower extremities are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2002 to November 2005 and from April 2009 to March 2011. This matter comes before the Board on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). Generally, to establish entitlement to service connection, a veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, any increase in severity of a nonservice-connected disease or injury which 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. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310(a)-(b). In order to prevail on the theory of secondary service connection, there must be evidence of (1) a current disability, (2) a service-connected disability, and (3) a nexus, or link, between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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 Veteran. 38 U.S.C.§ 5107 (b); 38 C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for cervical radiculopathy, affecting the right upper extremity as secondary to cervical strain The Veteran contends that his cervical radiculopathy, affecting the right arm, is proximately due to his service-connected cervical strain. The Board concludes that resolving doubt in the Veteran’s favor, the Veteran has a current diagnosis of cervical radiculopathy, affecting the right upper extremity, that is proximately due to his service-connected cervical strain. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. During the Veteran’s second period of active duty service in August 2009, the Veteran was diagnosed with cervical radiculopathy. A September 2009 service treatment record (STR) listed cervical radiculopathy at C8 nerve root (C7-T1) on the Veteran’s chronic and acute problems lists. A September 5, 2009 STR noted the Veteran’s cervical radiculopathy diagnosis. In a March 2010 in-service treatment letter, Dr. F. K. recommended a right upper extremity electromyography (EMG) due to the Veteran’s symptoms of right upper extremity numbness. His post-service medical records show that in June 2011, the Veteran was afforded a VA Peripheral Nerves examination. The Veteran was diagnosed with bilateral cervical radiculopathy. The Veteran endorsed neck pain that radiated to the right upper extremity, numbness and weakness with onset after 2005. The VA examiner rendered the clinical assessment that the Veteran had subjective symptoms of cervical radiculopathy. However, the examiner explained that there was no objective focal sensory or motor deficits, except that the Veteran had mild sensory neuropathy of the left ulnar nerve distribution on the left hand. The Board acknowledges that the Veteran is service-connected for left ulnar radiculopathy, status-post left cubital tunnel surgery. A June 2011 VA Neck (Cervical Spine) Conditions examination did not reveal any cervical radiculopathy, affecting the right upper extremity. The Veteran did not endorse any radicular pain to the right upper extremity. In an August 2011 rating decision, the RO granted the Veteran’s service-connection claim for cervical strain. In February 2013, the Veteran filed a Supplemental Claim for Compensation for “right arm neuropathy, secondary to cervical condition”. In July 2013, the Veteran was afforded another VA Neck (Cervical Spine) Conditions examination. Again, the examination did not reveal any cervical radiculopathy affecting the right upper extremity. However, the Veteran endorsed a pulling sensation on the posterior aspect of the neck and occasional radiation down his right arm. Objective examination showed that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The VA examiner opined that the Veteran’s service-connected cervical strain had subjectively worsened; however, there was no evidence of radiculopathy or myelopathy. The examiner remarked that the Veteran missed work because of his painful neck condition. Otherwise, the examiner did not discuss the Veteran’s reported intermittent radicular pain in his right arm as impacting his earning capacity. In July 2013, the Veteran was afforded a VA Shoulder and Arm Conditions examination. Again, the examination did not reveal any cervical radiculopathy, affecting the right upper extremity. The examiner opined that the Veteran missed work because of his shoulder pain. The examiner did not discuss the Veteran’s reported intermittent radicular pain in the right arm or its impact on his earning capacity. Based on the foregoing evidence, the Board resolves reasonable doubt in the Veteran’s favor and finds that secondary service connection for cervical radiculopathy, affecting the right upper extremity, is warranted. The Board finds that the Veteran was diagnosed during his second period of active duty service with cervical radiculopathy. The Veteran’s STRs listed cervical radiculopathy at C8 nerve root (C7-T1) on the Veteran’s chronic and acute problems lists. In March 2010, an EMG was recommended because the Veteran continued to complain of right upper extremity numbness. In June 2011 and in close proximity to separation from service, VA diagnosed the Veteran with bilateral cervical radiculopathy. The Veteran continued to complain of neck pain that radiated to the right upper extremity, numbness and weakness. The examiner noted that Veteran’s bilateral cervical radiculopathy diagnosis and opined that his symptoms were subjective without objective focal sensory or motor deficits. In June 2013, VA examined the Veteran again and he continued to endorse intermittent radiating pain “down his right arm”. As the Veteran is service-connected for cervical strain, was diagnosed with cervical radiculopathy, repeatedly endorsed cervical radicular symptoms such as right upper extremity pain, numbness and weakness, and the June 2011 VA examiner noted the Veteran’s cervical radiculopathy diagnosis and explained that the condition was manifested by subjective symptoms of cervical radiculopathy, the Board is satisfied that the criteria for the establishment of secondary service connection for cervical radiculopathy, affecting the right upper extremity, have been met. 38 U.S.C. §§ 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. Entitlement to service connection for lumbar radiculopathy, affecting the bilateral lower extremities (claimed as peripheral neuropathy, bilateral lower extremities) as secondary to lumbar sprain The Veteran contends that his lumbar radiculopathy, affecting the bilateral lower extremities, is proximately due to his service-connected lumbar sprain. The Board concludes that resolving doubt in the Veteran’s favor, the Veteran has a current diagnosis of lumbar radiculopathy, affecting the bilateral lower extremities, that is proximately due to his service-connected lumbar sprain. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. During the Veteran’s second period of active duty service in September 2009, the Veteran was diagnosed with lumbar radiculopathy and radiculopathy of the feet. A September 2009 magnetic resonance imaging (MRI) report indicated that the Veteran endorsed numbness in the legs with evidence of spondylolysis at L4 bilaterally. The MRI revealed focal right L4-5 foraminal protrusion, no evidence of obvious listhesis and was otherwise unremarkable. Beginning in September 2009, STRs listed acute lumbar radiculopathy on the Veteran’s acute problems list. In a March 2010 in-service treatment letter, Dr. F. K. noted that the Veteran endorsed low back pain. Dr. F. K. also noted that the Veteran did not have radiculopathy; although, the Veteran endorsed intermittent pain in his buttocks and thigh. The Veteran endorsed intermittent tingling in both feet that the Veteran described as “positional”. A March 2010 STR indicated that the Veteran had chronic low back pain with herniated lumbar disc with spinal stenosis and lumbar radiculopathy. The Veteran endorsed constant pain across the lower back with radiating pain into the right lower leg and intermittent numbness in his feet when he stood in certain positions. According to the Veteran, he injured himself in service after falling backward off a Humvee vehicle. The Veteran’s post-service medical records showed that in June 2011, the Veteran was afforded a VA Peripheral Nerves examination. The Veteran was diagnosed with lumbar radiculopathy. The Veteran endorsed low back pain that radiated to his lower extremities, weakness and numbness since service. The VA examiner rendered the clinical assessment that there were no motor or sensory deficits, or specific motor weakness of the Veteran’s bilateral lower extremities. However, the examiner added that the Veteran had more subjective than objective findings of lumbar radiculopathy during the examination. A June 2011 VA Spine examination did not reveal any lumbar radiculopathy or peripheral neuropathy affecting the bilateral lower extremities. The Veteran denied any radiating pain down his lower extremities and did not report any changes regarding his lower extremities. In an August 2011 rating decision, the RO granted the Veteran’s service-connection claim for lumbar sprain. In February 2013, the Veteran filed a Supplement Claim for Compensation for “bilateral peripheral neuropathy (lowers), secondary to lumbar sprain”. In July 2013, the Veteran was afforded a VA Back (Thoracolumbar Spine) Conditions examination. Again, the examination did not reveal any lumbar radiculopathy or peripheral neuropathy affecting the bilateral lower extremities. However, the Veteran endorsed occasional alternating lower extremity numbness. The Veteran reported missing work because of his back pain. Objective examination of the bilateral lower extremities revealed occasional alternating lower extremity numbness. Muscle and sensory examination was normal and the Veteran’s bilateral lower extremity reflexes were 1+ hypoactive. A November 2016 VA treatment note indicated that the Veteran was diagnosed with chronic low back pain. The Veteran reported chronic low back pain for years, that worsened in the preceding year with occasional radiating pain to the posterior right lower extremity. In the examiner’s judgment, given the chronicity of the Veteran’s symptoms, the examiner suggested that the Veteran’s work activities may have aggravated his condition. The examiner gave the Veteran a letter to “help modify his work activities”. In the letter, the examiner referred to the Veteran’s chronic intermittent radicular low back pain that reportedly worsened in the preceding year. On outpatient treatment later in November 2016, the Veteran continued to endorse chronic low back pain that radiated to the posterior right lower extremity. Based on the foregoing evidence, the Board resolves reasonable doubt in the Veteran’s favor and finds that secondary service connection for lumbar radiculopathy, affecting the bilateral lower extremities, is warranted. The Board finds that the Veteran was diagnosed during his second period of active duty service with lumbar radiculopathy. The Veteran’s STRs listed lumbar radiculopathy on the Veteran’s acute problems lists. Multiple STRs indicate that the Veteran endorsed symptoms of lumbar radiculopathy of the bilateral lower extremities throughout his second period of active duty service. In June 2011 and in close proximity to separation from service, VA diagnosed the Veteran with lumbar radiculopathy. Again, the Veteran continued to complain of lower back pain that radiated to the bilateral lower extremities, weakness and numbness. The examiner noted that the Veteran had more subjective than objective findings of lumbar radiculopathy during examination. In June 2013, VA examined the Veteran again and he continued to endorse intermittent bilateral lower extremity pain and numbness. The examiner noted that objective examination showed occasional alternating lower extremity numbness. In November 2016, a VA examiner explained that given the chronicity of the Veteran’s symptoms, the Veteran’s work activities may have aggravated his condition. To help prevent aggravating the Veteran’s condition, the examiner gave the Veteran a letter to help “modify his work activities”. Most crucially, the examiner referred to the Veteran’s “chronic intermittent radicular low back pain” in the letter. Given that the Veteran is service-connected for lumbar sprain, was diagnosed with lumbar radiculopathy, repeatedly endorsed low back pain and lumbar radicular symptoms such as bilateral lower extremity pain, numbness and weakness, the June 2011 VA examiner noted that the Veteran’s lumbar radiculopathy was manifested by more subjective than objective findings of lumbar radiculopathy, and the November 2016 VA treatment note suggested that the Veteran’s “chronic intermittent radicular low back pain” interfered with his earning capacity, the Board is satisfied that the criteria for the establishment of secondary service connection for lumbar radiculopathy, affecting the bilateral lower extremities, have been met. 38 U.S.C. §§ 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS FOR REMAND Entitlement to an increased evaluation for cervical strain, rated as 20 percent disabling, entitlement to an increased evaluation for lumbar sprain, rated as 20 percent disabling, and entitlement to an increased evaluation for shoulder impingement syndrome with degenerative joint disease, affecting the bilateral shoulders, rated as 10 percent disabling, are remanded. The Veteran was last provided VA examinations in conjunction with his service-connected cervical strain, lumbar sprain, and bilateral shoulder disability in July 2013. The Court of Appeals for Veterans Claims (Court) held in Correia v. McDonald, 28 Vet. App. 158 (2016), 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 measurements of the opposite undamaged joint. A review of the claims file reveals that the prior VA examination reports includes only active range of motion findings and do not include range of motion findings for passive range of motion. They also do not specify whether the results are weight-bearing or nonweight-bearing. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, new examinations are necessary to decide the claim. An additional relevant opinion pertaining to flare-ups was also issued by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examinations to evaluate the service-connected cervical strain, lumbar sprain, and shoulder impingement syndrome with degenerative joint disease, affecting the bilateral shoulders. The Veteran’s claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in the cervical spine, lumbar spine and bilateral shoulders on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the cervical spine, lumbar spine and bilateral shoulders cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. 1. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel