Citation Nr: 21003774 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 09-44 060 DATE: January 22, 2021 ORDER Entitlement to service connection for radiculopathy of the left upper extremity, as secondary to the service-connected osteoarthritis of the cervical spine, from April 18, 2006, to March 5, 2017, is granted. Entitlement to service connection for radiculopathy of the right upper extremity, as secondary to the service-connected osteoarthritis of the cervical spine, from April 18, 2006, to March 5, 2017, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 6, 2017, is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to September 17, 2015, for osteoarthritis of the cervical spine is remanded. Entitlement to an initial disability rating in excess of 20 percent since September 17, 2015, for osteoarthritis of the cervical spine is remanded. Entitlement to an initial disability rating in excess of 20 percent since March 6, 2017, for radiculopathy of the left upper extremity is remanded. Entitlement to an initial disability rating in excess of 20 percent since March 6, 2017, for radiculopathy of the right upper extremity is remanded. FINDINGS OF FACT 1. From April 18, 2006, to March 5, 2017, the Veteran’s radiculopathy of the left upper extremity is proximately due to his service-connected osteoarthritis of the cervical spine. 2. From April 18, 2006, to March 5, 2017, the Veteran’s radiculopathy of the right upper extremity is proximately due to his service-connected osteoarthritis of the cervical spine. CONCLUSIONS OF LAW 1. From April 18, 2006, to March 5, 2017, the criteria for service connection for radiculopathy of the left upper extremity as secondary to osteoarthritis of the cervical spine are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. From April 18, 2006, to March 5, 2017, the criteria for service connection for radiculopathy of the right upper extremity as secondary to osteoarthritis of the cervical spine are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1962 to July 1966 and from October 1973 to October 1989. These issues are on appeal from July 2008, February 2016, and July 2017 rating decisions. In February 2012, the Veteran testified at a Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge. In April 2020, the Board most recently remanded these matters to the Agency of Original Jurisdiction (AOJ) for further development. Service Connection 1. Entitlement to service connection for radiculopathy of the left upper extremity, as secondary to the service-connected osteoarthritis of the cervical spine, from April 18, 2006, to March 5, 2017. 2. Entitlement to a service connection for radiculopathy of the right upper extremity, as secondary to the service-connected osteoarthritis of the cervical spine, from April 18, 2006, to March 5, 2017. The Veteran asserts that he experienced radiculopathy in the bilateral upper extremities as a result of his service-connected osteoarthritis of the cervical spine prior to March 6, 2017. See, e.g., February 2012 Board hearing transcript, pages 16 and 17. The Veteran is currently in receipt of radiculopathy of the bilateral upper extremities, as secondary to the service-connected osteoarthritis of the cervical spine, effective March 6, 2017. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurological abnormalities are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5237 at Note 1. The Board finds that the relevant lay and medical evidence shows the Veteran had radiculopathy of the bilateral upper extremities associated with his service-connected osteoarthritis of the cervical spine from April 18, 2006, to March 5, 2017. In an April 2020 VA medical opinion, the VA examiner reviewed the Veteran’s claims file and opined that the Veteran’s radiculopathy of the bilateral upper extremities has persisted since 2004. In a September 2020 VA medical opinion, the VA examiner again reviewed the Veteran’s claims file and found that the earliest date of the Veteran’s cervical spine radiculopathy was likely in August 2004. The examiner cited to the medical literature as support for the opinion. The Veteran filed his increased rating claim for the cervical spine (from which the radiculopathy claims arose) on April 18, 2007. Since that time, the Veteran has complained of symptomology associated with radiculopathy of the bilateral upper extremities. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current radiculopathy of the bilateral upper extremities was an associated objective neurological abnormality of the service-connected osteoarthritis of the cervical spine from April 18, 2006 (one year prior to the increased rating claim), to March 5, 2017. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for radiculopathy of the bilateral lower extremities from April 18, 2006, to March 5, 2017, is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND 1. Entitlement to a TDIU prior to March 6, 2017, is remanded. Currently, the Veteran does not meet the schedular requirements for a TDIU for the entire appeal period prior to March 6, 2017, under 38 C.F.R. § 4.16(a); however, the AOJ has not yet adjudicated the grants contained in this decision. Further, the records contain March 2008 and November 2008 private opinions, in which the Veteran’s private physician determined that the Veteran’s service-connected disabilities made him unemployable. Thus, the Board finds that the TDIU claim must also be remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. 2. Entitlement to an initial disability rating in excess of 10 percent prior to September 17, 2015, for osteoarthritis of the cervical spine is remanded. In accordance with the May 2016 Joint Motion for Partial Remand (arising from the Veteran’s appeal of the Board’s July 2015 denial of his cervical spine claim to the U.S. Court of Appeals for Veterans Claims), the Board remanded the cervical spine claim in February 2017 and January 2018 to the AOJ for a clarification letter to be sent to Dr. R.T., the Veteran’s private physician, regarding the January 2012 treatment record. The AOJ only sent one letter to Dr. R.T. The letter was sent in July 2019, and the letter was sent to Dr. R.T.’s incorrect mailing address. See June 2007 VA Form 21-4142 for correct mailing address. The July 2019 letter was subsequently returned later in the month to the AOJ. The AOJ made no further attempts to resend this clarification letter to Dr. R.T. Accordingly, upon remand, the AOJ must make another attempt to send a clarification letter to Dr. R.T. at his correct mailing address. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to an initial disability rating in excess of 20 percent since September 17, 2015, for osteoarthritis of the cervical spine is remanded. In April 2020, the Board remanded this claim for a VA medical opinion regarding the Veteran’s flare-ups and repetitive use over time of the cervical spine. In April 2020 and September 2020, VA medical opinions were obtained. The April 2020 VA examiner found that a flare-up opinion was “not applicable.” The examiner was unable to provide an opinion regarding whether pain, weakness, fatigability, or incoordination would significantly limit the functional ability of the cervical spine with repeated use over a period of time with mere speculation as the Veteran did not perform repetition over a period of time. The September 2020 opinion did not address the Veteran’s flare-ups or repetitive use over time. The Board finds that the April 2020 medical opinion is not sufficient under Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), and another medical opinion must be obtained upon remand. See Stegall, 11 Vet. App. at 271. Further, as the most recent examination of the cervical spine was in March 2017, the Board finds that an examination of the cervical spine should also be obtained under remand. 4. Entitlement to an initial disability rating in excess of 20 percent since March 6, 2017, for radiculopathy of the left upper extremity is remanded. 5. Entitlement to an initial disability rating in excess of 20 percent since March 6, 2017, for radiculopathy of the right upper extremity is remanded. Finally, because a decision on the remanded cervical spine examination could significantly impact a decision on the radiculopathy issues, the issues are inextricably intertwined. A remand of the radiculopathy claims is required.   The matters are REMANDED for the following actions: 1. Adjudicate the grants contained in this decision pertaining to the radiculopathy issues. 2. Refer the Veteran’s claim for a TDIU prior to March 6, 2017, to VA’s Director of Compensation Service for extraschedular consideration. 3. Contact Ruben B. Timmons, M.D., at his current mailing address (See June 2007 VA Form 21-4142 for correct address – No P.O. Box in the mailing address), and request clarification from this physician as to whether he used a goniometer to measure the range of motion in the Veteran’s cervical spine when examined on January 25, 2012. If records dated in January 2012 are no longer available for review from this physician, Dr. Timmons is asked to state whether it is his usual practice to measure range of motion with goniometer. A copy of any letter sent to Dr. Timmons, and any reply, should be associated with the claims file. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected osteoarthritis of the cervical spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repetitive use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repetitive use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, to include the inextricably intertwined issues of entitlement to an initial disability rating in excess of 20 percent since March 6, 2017, for radiculopathy of the left upper extremity, and entitlement to an initial disability rating in excess of 20 percent since March 6, 2017, for radiculopathy of the right upper extremity. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, Counsel 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.