Citation Nr: 1807744 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 09-22 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a pinched nerve in the neck/cervical spine with associated neuropathy and/or radiculopathy of the upper extremities, including as secondary to a service-connected lumbosacral spine disability. 2. Entitlement to service connection for radiculopathy of the right lower extremity, including as secondary to the service-connected lumbosacral spine disability. 3. Entitlement to a rating higher than 20 percent for the service-connected lumbosacral spine disability - specifically, for lumbosacral strain with degenerative disc disease (DDD). 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to January 1971. He had additional, subsequent, service in the Army National Guard. This appeal to the Board of Veterans' Appeals (BVA or Board) originated from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony before the Board during an October 2011 videoconference hearing; the transcript of the proceeding has been associated with the virtual (i.e., paperless or electronic) record. In January 2012, the Board set forth a detailed account of the procedural history of this case, which is incorporated by reference and not reiterated for the sake of judicial economy. At that time, the Board remanded these claims for further development and readjudication. Unfortunately, for reasons and bases that will be discussed, another remand is required concerning the issues pertaining to the lumbar and cervical spine, as well as entitlement to a TDIU. There is a need to correct a procedural defect and for additional development because there was not compliance with the Board's prior remand directives, not even the acceptable "substantial" compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). So the Agency of Original Jurisdiction (AOJ) has to correct this deficiency. However, the Board instead is going ahead and deciding - indeed granting - the Veteran's claim of entitlement to service connection for radiculopathy of his right lower extremity. FINDING OF FACT The Veteran's currently-diagnosed radiculopathy of the right lower extremity is as likely as not secondary to his service-connected lumbosacral strain with DDD. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for radiculopathy of the right lower extremity as secondary to the service-connected lumbosacral strain with DDD. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision the Board is granting entitlement to service connection for radiculopathy of the right lower extremity as secondary to the service-connected lumbosacral strain with DDD, so the Veteran is receiving the requested benefit in full. Thus, there is no need to discuss whether VA has complied with its duties to notify and assist him with this claim found at 38 U.S.C. §§ 5102, 5103, 5103A, 5107 and 38 C.F.R. § 3.159. In deciding this claim, the Board has reviewed all of the evidence in the Veteran's virtual record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. § 1110, 38 C.F.R. § 3.303. Additionally, secondary service connection is granted for disability that is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). This includes instances in which a service-connected disability aggravates another condition. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439 (1995). In December 2010, service connection was awarded for radiculopathy of the left lower extremity as secondary to the service-connected lumbosacral strain with DDD. In January 2012, the Board remanded the additional claim of entitlement to service connection for radiculopathy of the right lower extremity (so for the other lower extremity) for an etiology opinion - including to assist in determining whether it, too, is a result of the service-connected low back disability. The Board at the time noted that it already had been conceded that the Veteran had radiculopathy of his left lower extremity associated with his lumbosacral spine disability, hence, the granting of service connection for this additional disability on a secondary basis, so medical comment was only needed concerning whether he also had radiculopathy or neuropathy affecting his right lower extremity as a result, consequence or complication of his service-connected lumbosacral spine disability. The requested examination and opinion were rendered in January 2017. The examiner confirmed the diagnosis of radiculopathy of the right lower extremity, which had been previously in dispute. However, the examiner opined muscle strain of the lumbosacral spine would not, with 50 percent or greater probability, cause the current right lower extremity radiculopathy. The examiner reasoned the precise cause of the radiculopathy was uncertain, but the Veteran did have a chronically elevated body mass index (BMI) that was known to increase the risk of degenerative back disease. The Board accords that medical opinion little ultimate probative weight, however, in part based on the speculative nature of it and the failure to address the already service-connected left lower extremity radiculopathy as admittedly associated with the service-connected low back disability and, perhaps most importantly, lack of explanation regarding any difference between the identically-diagnosed impairment affecting the two extremities. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the credibility and weight to the attached medical opinions are within the province of the Board). Notably, the record on appeal also contains the report of a December 2009 VA examination showing the Veteran had moderate radiculopathy due to impingement on the L5 nerve root. Lumbar radiculopathy associated with lumbosacral strain and DDD already has been conceded by VA when the award of service connection for the left lower extremity radiculopathy was made after this opinion was rendered. Moreover, radiographic reports and VA treatment records are replete with complaints of radiating low back pain into the right lower extremity and radicular symptomatology. See e.g. VA examination reports dated in September 2005 and July 2008; VA outpatient treatment records dated in September 2002, September 2006, August 2011, July 2014; and October 2007 magnetic resonance imaging (MRI). When considering this evidence in total, the Board will resolve this reasonable doubt in the Veteran's favor and finds that service connection is warranted for radiculopathy of his right lower extremity on the same premise it previously was determined that service connection is warranted for his left lower extremity radiculopathy - namely, that it is secondary to his service-connected low back (lumbosacral) disability. A diagnosis has been confirmed and therefore will suffice as evidence of the required correlation ("nexus") between the current right lower extremity radiculopathy and his service-connected lumbosacral strain with DDD. Radiculopathy associated with the service-connected lumbosacral strain with DDD already has been conceded by VA when the award of service connection for left lower extremity radiculopathy was made. As the record currently stands, there is no more probative (meaning more competent and credible) evidence disassociating the etiology of the right lower extremity radiculopathy from the same etiology as the left lower extremity radiculopathy - that being the service-connected lumbosacral strain with DDD. In this circumstance of evidence supportive of the claim being as probative as the evidence against it, VA must resolve this reasonable doubt in the Veteran's favor and grant (rather than deny) the claim. 38 C.F.R. §§ 3.102, 4.3. Accordingly, service connection for the right lower extremity radiculopathy is warranted. ORDER The claim of entitlement to service connection for radiculopathy of the right lower extremity as secondary to the service-connected lumbosacral strain with DDD is granted. REMAND As noted in the prior January 2012 remand, the Board determined it was necessary to reassess the severity of the Veteran's service-connected lumbosacral spine disability. The Board also determined clarification was necessary to determine whether the Veteran's cervical spine disability, including any radiculopathy or neuropathy affecting his upper extremities, was related to his military service, either as directly incurred in service or alternatively caused or aggravated by the service-connected lumbosacral spine disability. Moreover, the Board found an opinion was necessary to determine whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining employment. Thus, the Board requested a new examination, including medical comment on these issues. The Veteran was afforded VA back, neck, and peripheral nerve examinations in March 2014. A supplemental statement of the case (SSOC) not issued after this evidence was developed. An SSOC must be issued if, pursuant to a remand by the Board, it develops the evidence or cures a procedural defect. 38 C.F.R. § 19.31 (2017). While an SSOC was issued in February 2017, it did not list this examination in the evidence considered, nor was it discussed in the reasons and bases. This procedural defect must be cured. Id. In addition, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Under remarks, the March 2014 VA peripheral nerves examiner stated "left external popliteal nerve paralysis is already service-connected. Right cervical radiculopathy is at least as likely as not (50/50 probability) caused by or a result of." The Board consequently finds that clarification must be sought as the etiology of the Veteran's cervical radiculopathy is unclear. The Veteran was afforded an additional VA examination in January 2017, but unfortunately the opinions with regard to the cervical spine disability and TDIU are also inadequate. As noted above, the examiner was asked to provide an opinion as to whether the Veteran's cervical spine disability, including any radiculopathy or neuropathy affecting his upper extremities, was related to his military service, either as directly incurred in service or alternatively caused or aggravated by the service-connected lumbosacral spine disability. Notably, in response to the questions set forth on secondary causation, the neck examiner opined it was less likely than not that the Veteran's "claimed cervical spine condition is secondary to his service connected low back condition." In the providing his rationale for such opinion, the examiner discussed the Veteran's service treatment records pertaining to his low back between 1968 and 1970. The examiner then indicated: "I discussed this case with the Chief of Orthopedics at CMC VAMC who indicated that muscle strain of the lumbosacral spine would not cause the current cervical spine disease manifested by the Veteran with 50% or greater probability." Regarding aggravation, the examiner simply stated: "I find no evidence of aggravation based on the evidence already presented. When discussing direct causation a second time, under "MEDICAL OPINION," the examiner reiterated that radiculopathy was not due to or incurred in military. Then under "RATIONALE," he stated: "See my answers above. On review of the CPRS record, I find that neither the Veteran's primary care provider or pain clinic provider has mentioned a current radiculopathy of the cervical spine; but even if one were to develop, there is no evidence based on my comments above that this would have been due to any condition related to military service." The Board consequently finds that an addendum opinion must be sought. First, the neck examiner when rendering his opinion on secondary causation found that the Veteran's cervical spine disease was not caused by "muscle strain." The Veteran's lumbar spine disability has progressed since 1970 and is currently manifested by DDD and associated radiculopathy of the bilateral lower extremities (at the time of examination only the left lower extremity was service-connected). Next, the examiner provided no rationale for his opinion on aggravation other than there was none based on the evidence presented, which as explained has been inaccurately portrayed. Finally, it is not enough merely to conclude the Veteran does not have current cervical radiculopathy, even if not diagnosed during the evaluation. The Veteran only instead needs to show he has had this claimed condition at some point since the filing of his claim or contemporaneous thereto, even if now resolved, which is clearly the case in the instant matter. Moreover, the examiner did not address cervical neuropathy, which is also clearly documented in the record as the Veteran has been diagnosed with cervical spondylosis with myelopathy (a nervous system disorder). The specific questions are set forth in the numbered paragraphs below. An addendum opinion is also needed from the January 2017 VA examiner or other designee regarding whether the Veteran's service-connected disabilities as a whole preclude him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work experience and training. The examiner noted that the Veteran's work capacity was quite limited and: "lumbosacral strain, by itself, would preclude heavy physical labor. He would need significant accommodation to permit sedentary work - would need to stand at 1/2 hr intervals." The examiner addressed the impact of the service-connected lumbosacral spine disability by itself on employability, but it is not clear whether the opinion encompassed the effect of the disabilities on employment when considered as a whole, i.e. the Veteran was also service-connected for left lower extremity radiculopathy. Also, radiculopathy of the right lower extremity was granted in the current decision. Thus, circumstances have changed and there are more service-connected disabilities. Thus, an addendum opinion is necessary. The Board sincerely regrets the additional delay that inevitably will result from this additional remand, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Accordingly, the additional development previously specified in the Board's January 2012 remand must be completed before readjudication of these claims. Consequently the claims are again REMANDED for the following still additional development and consideration: 1. Obtain an addendum opinion from the examiner who performed the March 5, 2016, VA peripheral nerves examination, if available. Otherwise the opinion must be rendered by a similarly qualified provider. Explanatory rationale must be provided for all opinions expressed. If the requested opinions cannot be made without resorting to mere speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resorting to mere speculation. Please provide clarification. In your March 5, 2016 opinion, under remarks, you indicated "left external popliteal nerve paralysis is already service-connected. Right cervical radiculopathy is at least as likely as not (50/50 probability) caused by or a result of." What is right cervical radiculopathy caused by or a result of? 2. Obtain an addendum opinion from the examiner who performed the January 13, 2017, VA neck examination, if available. Otherwise the opinion must be rendered by a similarly qualified provider. Explanatory rationale must be provided for all opinions expressed. If the requested opinions cannot be made without resorting to mere speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resorting to mere speculation. a) Is it at least as likely as not that any currently or previously diagnosed cervical spine disability, including, but not limited to, radiculopathy, neuropathy, or myelopathy, affecting his upper extremities, is related to his military service, either as directly incurred in service, such as from physical training, etc., or alternatively as secondary to his service-connected lumbosacral strain with DDD and associated bilateral lower extremity radiculopathy, meaning proximately due to, the result of, or aggravated by (beyond the natural progression of the disease) these service-connected disabilities? The examiner is informed that it is not enough merely to conclude the Veteran does not have cervical radiculopathy or neuropathy, even if not diagnosed during the January 2017 evaluation. The Veteran only instead needs to show he has had this claimed condition at some point since the filing of his claim or contemporaneous thereto, even if now resolved. In this regard, the examiner is asked to specifically address the findings of cervical radiculopathy and cervical spondylosis with myelopathy noted in the record. The examiner is further informed that it is not enough to conclude that a cervical spine disease is not caused by muscle strain and cite to records dated between 1968 and 1970. The Veteran's lumbosacral strain has progressed and now is manifested by DDD and associated bilateral lower extremity radiculopathy. The examiner must consider the medical evidence from 1970 to the present and cite to such evidence when rendering the opinion. (b) Is it at least as likely as not that the Veteran's service-connected disabilities (lumbosacral strain with DDD and associated bilateral lower extremity radiculopathy), when considering all of them in combination (including any additional disability determined above) preclude him from obtaining and maintaining employment that could be considered substantially gainful, meaning other than marginal, when considering his level of education, prior work history, experience and training, etc., but not his age and any disability that is not service connected? *The term "as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or the conclusion as it is to find against it. *Aggravation is defined for legal purposes as a chronic or permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran now has, above and beyond that he had prior to the aggravation. So, if possible, there needs to be some comparison with his baseline of disability versus the disability he now has as a result of the aggravation, again, assuming first it is determined there has been aggravation. 3. Ensure the examiners' opinions are responsive to these determinative issues. If not, return the reports for all necessary additional information. 38 C.F.R. § 4.2. 4. After completing these requested actions, and any additional notification and/or development deemed warranted, readjudicate these remaining claims in light of all evidence of record since the January 2012 Board remand, including, but not limited to, the March 2014 VA examination reports. If these claims continue to be denied, or are not granted to the Veteran's satisfaction, then send him and his representative another Supplemental Statement of the Case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs