Citation Nr: 21066334 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 14-05 366 DATE: October 29, 2021 ORDER Service connection for right upper extremity radiculopathy, as secondary to a service-connected cervical spine disability, is granted. Service connection for right lower extremity radiculopathy, as secondary to a service-connected lumbar spine disability, is granted. FINDINGS OF FACT 1. The Veteran's right upper extremity radiculopathy is proximately due to his service-connected cervical spine disability. 2. The Veteran's right lower extremity radiculopathy is proximately due to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right upper extremity radiculopathy secondary to a service-connected cervical spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for right lower extremity radiculopathy secondary to a service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from April 1989 to October 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision. In June 2015, November 2017, and June 2020, the Board remanded service connection for bilateral upper and lower extremity radiculopathy for additional development. In a January 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left upper and lower extremity radiculopathy as secondary to the Veteran's service-connected cervical and lumbar spine disabilities. Therefore, only service connection for right upper and lower extremity radiculopathy, to include as secondary to service-connected cervical and lumbar spine disabilities, remains on appeal before the Board. In the October 2021 appellate brief, the Veteran's representative asserted that the AOJ did not follow the Board's remand directives as required by law and that the VA medical opinions of record are inadequate. The Board concurs that the AOJ did not obtain an examination and opinion by an orthopedic specialist as directed in the June 2020 remand; however, because the Board is granting the claims in full, there is no prejudice to the Veteran by proceeding here. The Board sincerely regrets the length of time the appeals were pending and extends its appreciation to the Veteran and his sister for submitting helpful evidence to support these claims, including medical evidence and statements explaining the impact of the Veteran's symptoms on his life. 1. Service connection for right upper extremity radiculopathy, to include as secondary to a service-connected cervical spine disability 2. Service connection for right lower extremity radiculopathy to include as secondary to a service-connected lumbar spine disability The Veteran contends that his right upper (arm) and lower (leg) extremity symptoms, including pain and numbness, are radiculopathy proximately due to his service-connected neck (cervical spine) and back (lumbar spine) disabilities, respectively. In a January 2021 statement, the Veteran's representative asserted that because the VA examinations are not adequate the Board should afford more probative weight to the private treatment records, which document diagnosis and treatment of right-sided upper and lower extremity radiculopathy. Legal Criteria Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Facts and Analysis July 2017 and April and May 2019 private treatment records establish that the Veteran has current cervical radiculopathy manifested by neck pain radiating down both arms and numbness in both arms and hands. The pain management specialist clinicians based this diagnosis on a review of the Veteran's clinical history, imaging, and physical examination (including a positive Spurling test). [According to Dorland's Illustrated Medical Dictionary (32nd edition 2012), a positive Spurling test indicates cervical radiculopathy.] The April 2019 private treatment record also establishes that the Veteran has current lumbar radiculopathy manifested by pain radiating down both legs. Again, the specialist clinician based this diagnosis on a review of the Veteran's clinical history, imaging, and physical examination. The Veteran also reported right upper and lower extremity symptoms during VA examinations and treatment (as well as in his April 2019 written statement), but VA examiners have not diagnosed radiculopathy. See February 2010 VA examination report (reporting right arm numbness); March 2010 VA treatment record (reporting neck pain and right arm numbness); May 2019 VA examination report (reporting right leg numbness). Notably, the August 2015 VA examiner concluded that the Veteran's right lower extremity numbness and paresthesia were "radicular symptoms without any objective evidence of radiculopathy" and were "most likely due to intermittent nerve compression resulting from known spinal arthritis which was at least as likely as not related to the Veteran's inservice accident." The examiner requested an orthopedic opinion but, as noted above, VA has not provided one. The December 2020 VA examiner, a family nurse practitioner, stated that the Veteran did not have right upper or lower extremity radiculopathy because the claims file was silent for right-sided radiculopathy symptoms, diagnosis, or treatment. The Board cannot assign significant probative weight to the negative findings in the VA examination reports and opinions for the following reasons. First, VA did not obtain the required orthopedic opinion requested by the August 2015 VA examiner and the Board. Second, the VA examiners did not review and/or fully address the 2017 and 2019 private treatment records or the Veteran's competent, credible, and consistent reports of right arm and leg symptoms found in VA treatment records, VA examination reports, and the Veteran's April 2019 written statement. In contrast, the Board affords significant probative weight to the private treatment records because they reflect treatment by specialist clinicians (nurse practitioner and physician) familiar with the Veteran's clinical picture to include symptom onset and progression, physical examination findings, imaging results, and response to treatment (prior injections). As such, resolving all doubt in the Veteran's favor, the Board concludes that the Veteran has right upper and lower extremity radiculopathy. As to nexus, the Board finds that the Veteran's radiculopathy diagnosis includes an implied causal link to his service-connected cervical spine and lumbar spine disabilities because radiculopathy, by definition, is spine or nerve root pathology. See Dorland's Illustrated Medical Dictionary, supra, cervical and lumbar radiculopathy entries; see also May 2019 VA medical opinion explaining radiculopathy. In other words, a radiculopathy diagnosis implies peripheral (arm and leg) symptoms caused by a proximal injury (nerve root/spine). Id. Here, the Veteran's only neck and back injuries are his service-connected disabilities stemming from the in-service tractor trailer accident. See February 2010 and August 2015 VA examination reports. Moreover, VA referred the Veteran to the private pain management specialists to treat his chronic neck and back pain and other sequelae of the in-service injury. Therefore, the evidence, including the private treatment records and the August 2015 VA examiner's statement, establish that the Veteran's diagnosed right-sided upper and lower extremity radiculopathy stems from his service-connected neck and back disabilities, respectively. The Board finds that the preponderance of the evidence shows that the Veteran has currently diagnosed right upper and lower extremity radiculopathy disabilities which are proximately due to his service-connected cervical and lumbar spine disabilities, respectively. Accordingly, service connection is warranted for right upper and lower extremity radiculopathy as secondary to the Veteran's service-connected cervical and lumbar spine disabilities. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Robinson, 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.