Citation Nr: 20002168 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 15-42 325 DATE: January 9, 2020 ORDER Entitlement to service connection for left upper extremity radiculopathy is granted as secondary to service-connected disease. Entitlement to service connection for a left hand disability other than left upper extremity radiculopathy is denied. Entitlement to service connection for a left leg disability is denied. FINDINGS OF FACT 1. Left upper extremity radiculopathy is related to service connected cervical spine arthritis. 2. A left hand disorder other than left upper extremity radiculopathy was not manifest in service or within the first post service year and is not attributable to service. The disability is unrelated (caused or aggravated) to service connected disease or injury. 3. A left leg disorder was not manifest in service or within the first post service year and is not attributable to service. The disability is unrelated (caused or aggravated) to service connected disease or injury. CONCLUSIONS OF LAW 1. Left upper extremity radiculopathy is proximately due to service-connected disease. 38 C.F.R. § 3.310. 2. The criteria for service connection for a left hand disorder other than left upper extremity radiculopathy are not met, to include on a direct, presumptive or secondary basis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.310. 3. The criteria for service connection for a left leg disorder are not met, to include on a direct, presumptive or secondary basis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the AOJ modified a rating decision to state that service connection had been granted for residuals of an injury. The original rating decision did not limit the grant to a localized process of arthritis and employed diagnostic code 5003. Regardless of the action of the AOJ, DC 5003 is still used. The Veteran served on active duty from December 1945 to December 1946. He appeals a November 2014 rating decision. In August 2016, the Board denied the claims but granted service connection for arthritis in his left shoulder, cervical spine, and left hip. The Veteran appealed the Board’s decision as to the left hand and left leg to the United States Court of Appeals for Veterans Claims (Court). In a May 2017 Order, the Court remanded the case as to these two issues to the Board for action consistent with an April 2017 Joint Motion for Partial Remand (JMPR). In September 2017 and again in May 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for compliance with the JMPR. The matters have been returned to the Board. Appellant’s accredited representative has been provided three opportunities to review this matter and has submitted three Appellate Briefs since the JMPR. Service Connection The Veteran contends he has left hand and leg disabilities due to service-connected disability. He does not argue these disorders were present in or otherwise related to service. The JMR directed the Board to (a) consider whether Appellant’s left hand disability may be due to or the result of the degenerative arthritis in his left shoulder, (b) identify the nature of the left leg disorder, to include gluteal muscle tear and other possible diagnoses suggested by the record, and (c) consider whether any current left leg disorder was caused or aggravated by his service-connected knee disabilities including by virtue of his ‘inertia’ resulting from inactivity, in which case it is theorized that his ‘deconditioning’ may also be due to his knee disabilities. See, generally, JMPR. In this regard, the Board notes that service connection is in effect for arthritis of the cervical spine and left shoulder and left hip, and for bilateral knee disabilities. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110, 1131. In general, 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. 2009). Importantly in this case, service connection is also warranted for a disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). Clearly, there is current disability as to each claim. As to the left hand, the diagnosis is left carpal tunnel syndrome as well as left upper extremity radiculopathy. As to the left leg, the diagnoses include left foot drop and left lower leg extremity radiculopathy. See March 2019 VA examination reports and July 2019 VA Medical Opinion Disability Benefits Questionnaire (DBQ). Left gluteal muscle tear was a recorded diagnosis in earlier treatment and examination reports, but the disability has since been more thoroughly identified as reflected herein. It is not argued that a current left hand or left leg disorder began in service or within a year of service separation or is otherwise related to service. Nor was this case remanded by the Court to entertain this wholly unsupported theory. Neither the service treatment records (STRs) nor the post service treatment records nor any medical opinion evidence suggests otherwise. There is no argument or support for the theory that there has been continuity of symptomatology since service of a relevant chronic disease. The preponderance of the evidence is against the claim on a direct or presumptive basis. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The preponderance of the evidence is against finding that a nexus exists between current left hand or leg disorder and service. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). 1. Left hand disorder The question for the Board is whether a current left hand disorder is proximately due to or the result of, or was aggravated by service-connected disease or injury. The Board concludes that, while the Veteran has the aforementioned left hand disorder, the preponderance of the evidence is against finding that any such disability is proximately due to or the result of, or aggravated by service-connected disease or injury, with the exception of left upper extremity radiculopathy. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. Consistent with the JMPR, the Board remanded the matter in September 2017 for development including examination following a thorough review of the extensive relevant medical record. The examiner was to review specifically an August 2017 private medical note from Dr. E. C. that included an impression that the Veteran "has arm and hand paresthesia probably due to both cervical radiculopathy and carpal tunnel syndrome. Seems this may be related to fall as he reports this is when symptoms commenced." The examiner was to address whether left hand disability, to include carpal tunnel syndrome, radiculopathy and/or neuropathy, (1) is due to or caused by the Veteran's service-connected neck disability, left shoulder disability and/or bilateral knee disabilities (to include as due to a fall in 2011 reportedly caused by such disabilities); (2) has been aggravated (i.e., increased in severity) by the Veteran's service-connected neck disability, left shoulder disability and/or bilateral knee disabilities (to include as due to a fall in 2011 reportedly caused by such disabilities). Additional attention was invited to the June 2013 private medical note from Dr. R. W., cited in the JMPR. VA Examination of the left hand in March 2019 yielded the opinions that a left hand disability was not at least as likely as not due to or aggravated by a service connected condition. As the first theory, the examiner wrote, “[T]he two conditions are not medically related. The claimed disorder is a separate entity entirely from the service connected condition and unrelated to it. Dr [EC] notes thru 2017 mention the bilateral CTS. The emergency dept note on 7/11/2011 mentions ‘minor’ assessed injury severity. There is no continuity for one event in this multiple fall risk and historical falls individual.” As to aggravation, the examining physician stated, “The carpal tunnel is a wrist condition and is unrelated to the cervical spine. ‘NSC’ wrist condition is separate from the shoulder and cervical spine rating anatomic regions... The CTS is not related to old trauma from 2011 or permanently aggravated by other than age...also multiple falls in the veteran of multiple etiologies makes it mere speculation on which one caused which of the current claims.” The Board found this rationale insufficient and in May 2019 ordered an addendum opinion specifically asking again whether a left hand disability, to include carpal tunnel syndrome, radiculopathy and/or neuropathy, is due to or caused by or aggravated by the Veteran’s service-connected neck disability, left shoulder disability and/or bilateral knee disabilities (to include as due to a fall in 2011 reportedly caused by such disabilities). Again, the examiner was directed to the August 2017 private medical note from Dr. E.C., which included an impression that stated that the Veteran “has arm and hand parasthesia probably due to both cervical radiculopathy and carpal tunnel syndrome. Seems this may be related to fall as he reports this is when symptoms commenced.” Attention was also invited to the June 2013 private medical note from Dr. R.W., which was cited in the April 2017 JMPR. A July 2019 VA Medical Opinion DBQ yielded another physician’s opinion that a left hand disability is less likely than not proximately due to or the result of or aggravated by a service connected condition. As to being proximately due to or the result of service-connected disability, the examiner stated as follows: The left hand disability (carpal tunnel syndrome) is less likely than not due to cervical spine, left shoulder and bilateral knee disability. Carpal tunnel syndrome is caused by pathology at the wrist. It is important to note that this Veteran has been seen by neurology and notes the onset of the bilateral carpal tunnel syndrome was simultaneous. There was no evidence suggesting that only the left side presented first due to a fall, which injured the wrist, or any other secondary cause from a left shoulder disability and certainly not from the cervical spine which is anatomically inconsistent. The Veteran also has a diagnosis of Neuropathy/radiculopathy of the left upper extremity. Veteran's left upper extremity radiculopathy is at least as likely as not due to the service connected neck disability. A review of previous medical records from 2017 indicates he has been treated for "bilateral hand tingling" which was diagnosed as carpal tunnel syndrome. Left hand carpal tunnel syndrome, would not result from the cervical spine disability, or the left shoulder, nor would it be from a fall from bilateral knees. Recent treatment records from Neurosurgery indicates the current symptoms of the left upper extremity is consistent with radiculopathy originating from the cervical spine. Recent neurosurgical follow up 7/30/2018 and 12/18/2018 indicates Veteran is experiencing radiculopathy of the left upper extremity due to his cervical degenerative disc disease. The current symptoms of radiating pain and numbness from the neck to the hand would indicate radiculopathic symptoms of the left upper extremity. There is likely an overlap of symptoms from left carpal tunnel and left upper extremity radiculopathy. As to aggravation, the examiner stated: Veteran also has underlying bilateral carpal tunnel syndrome, and this is not due to any of the service connected conditions, left shoulder, bilateral knee disability or the cervical spine condition. Veteran has a clear etiology for the left upper extremity radiculopathy. This is caused by nerve compression on the left side of the cervical spine, caused by cervical disc degenerative disease. Neurosurgical consult and imaging performed on 7/30/2018 and 12/18/2018 supports this. Veteran's bilateral carpal tunnel syndrome is not aggravated by his service connected conditions. His left shoulder, cervical spine and bilateral knee disabilities are not contributory to his BTS. The conditions have no link to BTS and do not typically alter or influence its clinical course. The Board finds the July 2019 medical opinion as to the left hand to be thorough, well-supported, responsive to the critical questions and based on review of all of the relevant evidence of record. The medical opinion indicates that no current left hand disorder other than left upper extremity radiculopathy is related to service-connected disability. Treatment records are not contrary to this conclusion. Indeed the examiner in July 2019 supported the opinion with reference to the record to include the aforementioned seemingly contrary information as to CTS. The preponderance of the medical evidence indicates no causal relationship between a left hand disability, other than left upper extremity radiculopathy, and either arthritis of the cervical spine or left shoulder. With regard to the theory that a left hand disability is due to a fall caused by the knees, the Board must find that this theory is not supported as the etiology of the hand disorders is not found to have been a fall in 2011 by the July 2019 examiner. The preponderance of the evidence is against this theory as to a left hand disorder. However, it cannot be ignored that this case has morphed into one for more than simply the left hand disorder of CTS that was initially denied by the Board in 2016. Rather, it has evolved to reasonably encompass the neurological left upper extremity disorder other than CTS. Under the circumstances, the Board finds uncontroverted evidence that there is diagnosed left upper extremity radiculopathy that is as likely as not due to the cervical spine disorder. Symptoms are overlapping per VA examinations. Under the circumstances, service connection is warranted for this left upper extremity radiculopathy. While the Veteran believes a current left hand disorder other than left upper extremity radiculopathy is proximately due to or the result of/aggravated by service-connected disability, his lay theory is of significantly less probative weight when compared with the objective record, and the findings by the neutral VA examiner in July 2019. In weighing the evidence, the Board finds that the medical evidence of record, and the lack of competent support for the Veteran’s theory, preponderates against the claim. The July 2019 examiner’s opinion is, again, highly probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board adopts the opinion for its reasons and bases, noting that the examiner has fairly considered the material evidence of record. Wray v. Brown, 7 Vet. App. 488 (1995). The preponderance of the evidence weighs against finding that any left hand disorder other than left upper extremity radiculopathy is related to service-connected left shoulder or cervical spine disability. 2. Left leg disorder The question for the Board is whether the Veteran’s left leg disorder is proximately due to or the result of, or was aggravated by service-connected disease or injury. The Board concludes that, while the Veteran has the aforementioned left leg disorder, the preponderance of the evidence is against finding that any such disability is proximately due to or the result of, or aggravated by service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. Consistent with the JMPR, the Board remanded the matter in September 2017 for development including obtaining a medical opinion and, if necessary, examination. Following a thorough review of the extensive relevant medical record, the examiner was to opine whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s service-connected bilateral knee disabilities caused deconditioning, as referenced by the September 2014 VA opinion included as part of the Hip and Thigh Conditions DBQ. Attention was directed to the JMPR for this theory and to May and August 2015 VA treatment notes, which were quoted in the JMPR in support of the statement that “[m]edical evidence suggests that [Veteran’s] lack of activity is attributable, at least in part, to his service-connected bilateral knee disabilities.” The examiner was also to address whether a left leg disability, to include a neurological disability such as neuropathy and/or radiculopathy, is due to or caused or aggravated by the Veteran’s service-connected bilateral knee disabilities(to include as due to a fall in 2011 reportedly caused by such disabilities)and/or left hip disability. VA Examination in March 2019 yielded the opinions that a left leg disability was not at least as likely as not proximately due to or the result of or aggravated by a service connected condition including his knees and left hip. As whether the knee disabilities caused deconditioning and a left leg disorder, the examiner wrote, “[T]he two conditions are not medically related. The claimed disorder deconditioning is a separate entity entirely from the service connected knees condition and unrelated to it except in a minor way. Chronic back pain and leg weakness postop this back condition are quite significant. Especially the specifics of this case since 2011 multiple entries show back issues-post op, etc, supposed to wear braces for knees but did not on day of Fall 7/2011 and noted post the fall in 2018 place further comorbidities multiple etiologies and not prudent to nexus just the knees to deconditioning is shown in the record. It would be mere speculation and certainly is not the 50% etiology for deconditioning in this 87 yr old veteran.” As to whether a left leg disability, to include a neurological disability such as neuropathy and/or radiculopathy, is due to or caused by the Veteran's service-connected bilateral knee disabilities (to include as due to a fall in 2011 reportedly caused by such disabilities) and/or left hip disability, the examiner stated, “Anatomically the radiculopathy neuropathy of lower extremities chronically are due to back issues and NOT related to his SC condition knees. Rationale is due to view of the treatment record.” As to aggravation, the examining physician stated that. “In the geriatric fall risk category individual for this veteran given the data provided in the c file from VBMS 2011 up to the present, it does not permit a permanent aggravation of NSC condition by his SC condition. There are too many comorbidities to conjecture in this regard. 8 yrs after the fact it is not possible to view the old past function adequately to make such a claim medically plausible.” The Board found this rationale insufficient and in May 2019 ordered an addendum opinion specifically asking again whether a left leg disability, is due to or caused by or aggravated by the Veteran’s service-connected left hip disability and/or bilateral knee disabilities (to include as due to a fall in 2011 reportedly caused by such disabilities or deconditioning). Again, the examiner was directed to the September 2014 VA opinion included as part of the Hip and Thigh Conditions DBQ, the May and August 2015 VA treatment notes, which were quoted by the JMPR in support of the statement that “[m]edical evidence suggests that [Veteran’s] lack of activity is attributable, at least in part, to his service-connected bilateral knee disabilities, and the May 2015 VA treatment note also quoted by the JMPR that stated that “[d]uring a fall 3 years ago [the Veteran] injured his hip and developed foot drop on the left as well as L5 radiculopathy.” A July 2019 VA Medical Opinion DBQ yielded another physician’s opinion that a left leg disability is less likely than not proximately due to or the result of, or aggravated by a service connected condition to include deconditioning based on the knees. The examiner stated as follows: Veteran's left foot drop and left lower leg extremity radiculopathy is less likely than not due to or caused by the Veteran’s service-connected bilateral knee disabilities (to include as due to a fall in 2011 reportedly caused by such disabilities) and/or left hip disability. The examination on May 2015 VA treatment fails to consider that the Veteran has had a long history of spinal stenosis, which has caused left foot drop and left lower extremity radiculopathy. There are records dating back to 1997 showing an extensive history of lumbar spinal stenosis causing left lower extremity pain and weakness. This medical evidence precedes the fall in 2011. The left foot drop and left lower extremity radiculopathy was NOT caused by the bilateral knee disability or the left hip. The medical records do not support that claim or assertion. Veteran is Deconditioned due to significant comorbid medical conditions and his advanced age. It is certainly not more than 50 percent due to the bilateral knee disability. The lack of activity is multifactorial. Veteran has multiple joints that has advanced degenerative disease, making ambulation and balance difficult. The combination of all these factors would cause his deconditioned state, and is also likely the cause of his fall, which injured his left leg. Veteran's deconditioning is less likely than due to his service connected bilateral knee disability. Veteran's left foot drop and left lower leg extremity radiculopathy is less likely than not aggravated beyond natural progression by the Veteran’s service-connected bilateral knee disabilities (to include as due to a fall in 2011 reportedly caused by such disabilities) and/or left hip disability. Veteran's current left foot drop and radiculopathy of left lower extremity, has not been aggravated by the left hip, or the bilateral knee disabilities. Veteran's current severity of left foot drop and lower leg radiculopathy are more likely natural progression, given the Veteran's advanced age and other arthritic joints. The medical evidence does not point to more than 50% aggravation due to the bilateral knees or the left hip. The Board finds the July 2019 medical opinion as to the left leg to be thorough and well-supported. It considered all of the relevant evidence of record. The medical opinion indicates that no current left leg disorder is related to service-connected disability. Treatment records are not contrary to this conclusion. Indeed the examiner in July 2019 supported her opinion with reference to the record to include the seemingly contrary information. The preponderance of the competent medical indicates no causal relationship between a left leg disability and either arthritis of the left hip or the knee disabilities. With regard to the theory that a left leg disability is due deconditioning caused by the knees, the Board must find that this theory is not supported because of the clear explanation by the July 2019 VA physician. Her opinion considered the contrary evidence. The preponderance of the evidence is against this theory. While the Veteran believes a current left leg disorder is proximately due to or the result of/aggravated by service-connected disability, his lay theory is of significantly less probative weight when compared with the objective record, and the findings by the neutral VA examiner in July 2019. In weighing the evidence, the Board finds that the medical evidence of record, and the lack of competent support for the Veteran’s theory, preponderates against the claim. The July 2019 examiner’s opinion is, again, probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Her opinion outweighs the prior less comprehensive medical evidence. The Board adopts the June 2019 opinion for its reasons and bases, noting that the examiner has fairly considered the material evidence of record. Wray v. Brown, 7 Vet. App. 488 (1995). The preponderance of the evidence weighs against finding that any left leg disorder is related to service-connected left hip or bilateral knee disability. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.