Citation Nr: 1827303	
Decision Date: 05/01/18    Archive Date: 05/14/18

DOCKET NO.  96-06 407	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a left leg disability, to include as secondary to service-connected spondylosis deformans.

2.  Entitlement to service connection for a right shoulder disability.

3.  Entitlement to service connection for a left hand disability.

(The issue of entitlement to separate (increased) ratings for tinea cruris, tinea pedis, genital herpes, and post-inflammatory hypopigmentation on the right thighs and legs will be addressed in a separate Board decision).


REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Michael Sanford, Counsel


INTRODUCTION

The Veteran served on active duty from December 1974 to August 1994.

These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions from multiple Department of Veterans Affairs (VA) Regional Offices (ROs).

The issue of service connection of peripheral neuropathy of the lower left extremity emanates from a March 2010 rating decision of the RO in Manila, the Republic of the Philippines.

The issues of service connection for right shoulder and left hand disabilities emanate from a July 1995 rating decision of the RO in St. Petersburg, Florida.

Jurisdiction over all of these claims was transferred to the RO in St. Petersburg.

In March 2014, the Board granted service connection for arthritis of both hips and both ankles.  The Board remanded the above issues for a Board hearing.  In January 2017, the Veteran testified before the undersigned Veterans Law Judge at the RO in St. Petersburg.  A transcript of that hearing is of record.

The issues of service connection for a right shoulder disability and a left hand disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The evidence is in at least relative equipoise as to whether radiculopathy of the lower left extremity is caused by service-connected spondylosis deformans.


CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for radiculopathy of the lower left extremity, secondary to service-connected wound of the spondylosis deformans, are met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As the actions taken herein are favorable to the Veteran and considered a full grant of benefits requested with respect the only issue decided herein, further discussion of the VCAA is not necessary at this time.

Merits

Service connection may also be established if the evidence of record shows disability that is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

The Veteran has not asserted that service connection on a direct basis is warranted and that theory will not be discussed.

An October 2012 VA treatment record notes a diagnosis of lumbar radiculopathy of the left lower extremity.  It was noted that the lumbar radiculopathy had worsened along with the worsening of low back pain, which occurred as a result of the Veteran's service-connected spondylosis deformans.

Although the VA clinician did not offer an explicit opinion as to the likelihood that lower left extremity radiculopathy was caused by the service-connected low back disability, it is readily apparent that the examiner was making that association.  Further, the examiner offered a rationale by explaining that the lower left radiculopathy worsened as the Veteran's low back symptoms worsened.  Thus, the Board finds this evidence probative of a link between lower left extremity radiculopathy and the service-connected low back disability.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). 

The Board notes that the Veteran underwent a VA examination in October 2009, where the Veteran was diagnosed with peripheral neuropathy of the lower left extremity.  The examiner did not discuss any radiculopathy.  Nonetheless, the examiner offered a negative opinion as to whether any neuropathy is secondary to the service-connected spondylosis deformans.

The Veteran, however, made clear at the January 2017 Board hearing that he is seeking service connection for radiculopathy, not neuropathy.  See Board Hearing Transcript (Tr.) at 2-3.

Given the above, the opinion relating radiculopathy of the lower left extremity to the service-connected spondylosis deformans is unrebutted.

Thus, the evidence is in at least relative equipoise as to whether the Veteran's radiculopathy of the left lower extremity is caused by service-connected spondylosis deformans.  As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for radiculopathy of the left lower extremity is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for radiculopathy of the lower left extremity as secondary to service-connected spondylosis deformans is granted.


REMAND

The Veteran asserts that service connection for a right shoulder disability and a left hand disability is warranted.

The Veteran was afforded a VA examination in April 1995, where he was diagnosed with recurrent strain of the right shoulder and assessed "recurrent pain of the left hand-cause undetermined."  Notably, the examiner did not offer an opinion as to any diagnosis of record.

Regarding the claim for a left hand disability, the Board notes that the Veteran is a Persian Gulf Veteran.  See 38 C.F.R. § 3.317(d).

Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of chronic disability that cannot be attributed to any known clinical diagnosis, but instead results from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1)(i) (2017).  See also 76 Fed. Reg. 81834 (Dec. 29, 2011).

Effective March 1, 2002, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended.  38 U.S.C. §§ 1117, 1118.  Essentially, these changes revised the term "chronic disability" to "qualifying chronic disability," and involved an expanded definition of "qualifying chronic disability" to include: (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection.  38 U.S.C. § 1117(a)(2)(B); 38 C.F.R. § 3.317.  The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii).

Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multi-symptom illness include: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders.  38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b).

In light of the above, the Board finds a new VA examination is necessary.  The April 1995 VA examiner did not offer an opinion as to the etiology of the Veteran's diagnosed recurrent strain of the right shoulder and did not consider the provisions related to Persian Gulf Veterans when considering the Veteran's left hand pain.

Accordingly, the case is REMANDED for the following action:

1.  Schedule a VA examination to assess the etiology of any right shoulder and left hand disorders.  The Veteran's VA claims folder should be made available to the examiner for review in conjunction with the examination.

The examiner should address the following:

(a) Indicate whether complaints, findings and any objective signs of left hand pain are attributable to known clinical diagnoses, or whether those reported problems are manifestations of an undiagnosed illness. 

(b) If the complaints of left hand pain are determined to be attributable to a known clinical diagnosis, state whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during active service or is otherwise related to service.

(c) For diagnosed recurrent right shoulder strain and any other diagnosed right shoulder disability, state whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during active service or is otherwise related to service.

In addressing the above, the examiner must comment on the Veteran's complaints of right shoulder pain and left hand pain since service, given the Veteran's filing of his claim for service connection within the first post-service year.

2.  After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issues on appeal.  If any benefit sought is not granted, the appellant and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims 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 2014).




______________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs