Citation Nr: 21066873 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-39 802A DATE: November 2, 2021 ORDER Entitlement to service connection for radiculopathy of the upper right extremity is denied. Entitlement to service connection for radiculopathy of the upper left extremity is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. REMANDED Entitlement to specially adapted housing is remanded. Entitlement to a special home adaptation grant is remanded. FINDINGS OF FACTS 1. The most probative medical evidence of record does not support a positive nexus between the Veteran's radiculopathy of the right upper extremity and his service, to include his service-connected lumbar spine disorder. 2. The most probative medical evidence of record does not support a positive nexus between the Veteran's radiculopathy of the left upper extremity and his service, to include his service-connected lumbar spine disorder. 3. The evidence of record reflects that the Veteran's service-connected disabilities require his need of the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for special monthly compensation based on the need for regular aid and attendance have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1994 to May 1996. This matter is on appeal from June 2015 and June 2017 rating decisions and was remanded several times by the Board and most recently in July 2021. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). It is the Veteran's contention that he developed radiculopathy of the right and left upper extremities as a result of his service-connected lumbar spine disability. See April 2017 VA 21-526EZ, Fully Developed Claim. The Veteran's medical treatment records clearly show a diagnosis of radiculopathy of the right and left upper extremities. However, the record does not show a positive nexus between the Veteran's radiculopathy of the upper bilateral extremities and his service-connected lumbar spine disorder. The Veteran's service treatment records revealed injury to his lumbar spine after a motor vehicle accident in September 1995. He demonstrated sharp pain and tenderness in the lumbar spine area. He was treated accordingly and was seen for subsequent follow up visits. There was no indication of any injury to the cervical spine area or secondary effects in the upper extremities. A physical examination in December 1995 reported no clinical abnormalities of the spine or his extremities. Post service treatment records showed continued low back pain but did not reveal a neurological condition of the upper extremities until several years after service. A Disability Benefits Questionnaire was obtained in June 2015, which noted only radiculopathy of the lower extremity associated with the Veteran's service-connected lumbar-thoracic strain with lumbar spine intervertebral disc syndrome and scoliosis. There was no finding of radiculopathy of the upper extremities. Based on another Disability Benefits Questionnaire dating May 2017, the examining physician again only identified radiculopathy of the lower extremities relating to his lumbar spine disorder. A physical examination of the Veteran's cervical spine revealed a strain, but no objective evidence of radiculopathy of the upper extremities. The examining physician could find no evidence that would link the Veteran's neck strain and his lumbar spine disability, nor did he find evidence of a nerve condition in the upper extremities caused by the lumbar spine condition. Based on another May 2017 DBQ for his neck, the Veteran told the examining physician that his bilateral upper extremity radiculopathy began in 1996 and that the condition had worsened over the years. However, the Veteran did not demonstrate any radicular pain in his upper extremities. Additionally, the examining physician added that any neck injury or disease would occur independent of back problems and would not be caused by the back condition. Therefore, based on the Veteran's history, examination findings and a review of the records, the examiner concluded it is less likely than not that the radiculopathy of the upper extremities is due to the Veteran's back disability. When the matter came to the Board in August 2018, it was remanded for Social Security Administration records and for a new medical opinion. A Disability Benefits Questionnaire was obtained in October 2018. An evaluation of his low back disability confirmed only secondary conditions of radiculopathy of the lower extremities. The Veteran personally reported chronic pain that radiates down from his back into his legs. He even complained of reduced sensation in his feet. His low back disability in combination of his radiculopathy in his lower extremities cause difficulty in extended standing, walking, and sitting. The Veteran made no mention of any radicular pain in his upper extremities. Another October 2018 evaluation specifically pertaining to peripheral nerves, however, identified radiculopathy of the right upper extremity. He demonstrated mild numbness in the right arm and no pain in the left. A muscle strength test revealed full strength in both the left and right elbow, wrist, and grip. A sensory examination noted decreased sensation in the right arm and normal sensation in the left. Overall, the Veteran has incomplete paralysis in the right radial nerve. The examining physician noted that the Veteran's new diagnosis of a right upper extremity radiculopathy is related to a separate condition and is unrelated to his service-connected bilateral lower extremity radiculopathy. The diagnosis was given based on the Veteran's reported decreased sensation in his right upper extremity. The matter was ultimately remanded by the Board again in September 2019. The Board found that the examination reports on record failed to adequately address the etiology of the Veteran's right upper extremity radiculopathy. While the October 2018 examining physician found that it was less likely that the Veteran's right arm radiculopathy was caused by his thoracolumbar spine, an aggravation opinion was not offered. As for the radiculopathy of the upper left extremity, the Board found that another physical examination was warranted since the two Disability Benefits Questionnaire in October 2018 offered inconsistent findings of a radiculopathy diagnosis. While an examination was scheduled, the Veteran failed to appear for his examination without providing cause. However, on November 2019, the Veteran contacted VA and asked for a new examination to be rescheduled. Thus, pursuant to a May 2020 Board remand, a new VA examination was afforded to the Veteran in November 2020. At his peripheral nerves evaluation, the Veteran specifically complained of constant pain running down his legs. He reported tingling numbness in the left facial cheek, chest, left shoulder, and the deltoid area. He also complained of muscle spasms in the left forearm after the tingling subsides. A physical examination revealed moderate paresthesia/dysesthesias and moderate numbness in the left arm. He did not exhibit any peripheral nerve condition in the right arm. A sensory examination revealed decreased sensation in the left shoulder area and the inner and outer forearm. His sensations were marked as normal in the right shoulder area and right forearm. Overall, the examiner found that the Veteran has mild incomplete paralysis of the left upper radicular nerve. The right upper extremity was found to be normal. In her final remarks, the examining physician noted that the Veteran specifically denied any right upper extremity neuropathy or radiculopathy complaints. There was also no objective evidence of a right upper extremity peripheral nerve pathology. The left upper extremity symptoms were likely caused by a cervical spine issue for which he has not been evaluated for. When the matter came to the Board in July 2021, it found inconsistencies between the VA examinations. While the October 2018 VA examination report noted a diagnosis of a right upper extremity radiculopathy, the November 2020 VA examination report found no diagnosis of a right upper extremity radiculopathy. Rather, the physician found a diagnosis of radiculopathy of the left upper extremity. In addition to the fact that the inconsistent diagnosis was not addressed, the November 2020 examining physician also did not address whether the Veteran's bilateral upper extremity radiculopathy is caused or aggravated by his lumbar-thoracic strain with lumbar spine intervertebral disc syndrome and scoliosis. Therefore, the matter was remanded again to obtain an adequate medical opinion. A new medical opinion was subsequently obtained in August 2021. In finding a clinical diagnosis of radiculopathy of the left and right upper extremities, the examining physician found that it was less likely than not that the condition this caused by or related to his military service. In finding so, the examining physician noted that the Veteran's service treatment records were negative for any diagnosis or complaints suggestive of radiculopathy of the arms. While there was evidence that the Veteran sustained a rollover motor vehicle accident in 1995 with residuals of lumbar complaints, there was no evidence of any upper extremity complaints at the time. He was treated and referred to therapy which only identified lumbar related complaints. Periodic evaluation since 1995 were silent for any radicular symptoms or condition affecting the upper extremities. Therefore, a positive nexus is not established between his current condition and his military service. The examining physician also found that the Veteran's bilateral upper extremity radiculopathy is less likely than not related to his lumbar thoracic strain with lumbar spine intervertebral disc syndrome and scoliosis. The reason being is that the nerves that innervate the upper extremities do not originate off the thoracic or lumbar spine. There is no human pathophysiology to connect and upper radiculopathy to the lumbar thoracic region of the spine. Furthermore, there is no credible medical evidence in the claims folder to support aggravation of the bilateral upper extremity radiculopathy by the service-connected lumbar thoracic strain with lumbar spine intervertebral disc syndrome and scoliosis. There is no relationship that one condition causes the second. Based on the Veteran's medical records, there was no evidence of flareups, symptoms suggestive of exacerbations or increased treatment of the bilateral upper extremity radiculopathy as a result of the lumbar disorder. In reviewing the record, the Board finds that the overall evidence is against a positive nexus between the Veteran's current bilateral upper extremity radiculopathy and his service, to include his service-connected lumbar spine disorder. The Veteran has consistently argued that his bilateral upper extremity radiculopathy is caused or made worse by his service-connected lumbar spine disorder. It is clear that the Veteran has a clinical diagnosis of radiculopathy of both the left and right upper extremity. However, the most probative medical evidence indicates that the two conditions are separate. The August 2021 medical opinion found no pathophysiological connection between the lumbar thoracic region of the spine and the radicular nerves of the upper extremities. The examining physician specifically noted that anatomically, the nerve studies in the upper extremities do not originate off the thoracic or lumbar spine. Therefore, the worsening of the Veteran's lumbar thoracic strain with intervertebral disc syndrome and scoliosis would not cause or aggravate the radiculopathy of the upper extremities. In fact, it has been suggested by the November 2020 examining physician that the Veteran's bilateral upper extremity radiculopathy is likely related to his cervical spine condition, for which he has not been service connected. While the Veteran has maintained that there is a positive relationship between his bilateral upper extremity radiculopathy and his service-connected lumbar spine disorder, he has not submitted any medical opinion that would support his claim. He is competent to report symptoms that he experiences to help establish a clinical diagnosis. However, he does not have the requisite medical training and knowledge to opine on the etiology of his condition. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the Board must rely on the most probative medical evidence, which has shown a negative nexus between the radiculopathy of the upper extremities and his lumbar spine disorder. The Board has also considered whether service connection is warranted on a direct basis but finds that it is not. His service treatment records were silent for any complaints for treatment suggestive of a nerve condition while in service. His May 1995 periodic examination also reported no clinical abnormalities of the nerves or the upper extremities. While the Veteran sustained a motor vehicle accident which resulted in a low back condition, there was no clinical evidence to support a concurrent or subsequent nerve condition in his upper extremities during service. Accordingly, service connection for radiculopathy of the upper left and right extremities is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102. Special Monthly Compensation Based on Aid and Attendance The Veteran currently seeks special monthly compensation based on the regular need for aid and attendance of another person. Special monthly compensation based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, is so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114 (l); see also 38 C.F.R. § 3.350 (b). Pursuant to 38 C.F.R. § 3.352 (a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid; (3) the inability of the claimant to feed himself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. A veteran need show only one of the enumerated factors identified in 38 C.F.R. § 3.352 (a) to establish entitlement to aid and attendance. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Moreover, it is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. See id. The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352 (c). The Veteran is currently service connected for right lower extremity radiculopathy at 40 percent, lumbar thoracic strain with lumbar spine intervertebral disc syndrome and scoliosis at 40 percent, right lower extremity radiculopathy of the femoral nerve at 30 percent, left lower extremity radiculopathy of the sciatic nerve at 20 percent, left lower extremity radiculopathy of the femoral nerve at 20 percent, and a left ankle achilles tendonitis at a noncompensable rating. In support of his claim, the Veteran's nephew, L.S. submitted a March 2018 buddy statement indicating that the Veteran requires assistance from his spouse when getting dressed and when he bathes. A May 2018 private opinion from Dr. S.B. indicated that the Veteran was unable to stand, walk, lift, or bend sufficiently due to his back and legs conditions. Additionally, a May 2018 private opinion from Dr. H.S. noted that the Veteran has to lie down several times a day for several hours to relieve back and nerve pain. Because of his condition, the Veteran's spouse assists him with all activities of daily living such as bathing, getting dressed, maintaining household chores, and putting on shoes. Based on an October 2018 VA examination report, the examining physician noted that the Veteran struggles with poor tolerance for extended walking, standing, or driving. A different examining physician also reported that the Veteran spent the majority of the day in his bed due to his bilateral lower extremity disability. In a November 2020 examination for housebound status or permanent need for regular aid and attendance, the examining physician noted that the Veteran requires a cane to help with his gait. He is not confined to his bed. He does not require any nursing home care or assistance with medication management. He is able to manage his own financial affairs. The Veteran appeared at the examination well-groomed and neatly dressed. He demonstrated no restrictions in his grip, fine movements, or ability to clothe or feed himself. He can shave himself and attend to the needs of nature on his own. With regard to his lower extremities, the Veteran did not demonstrate limitation in motion. There was no objective evidence of muscle atrophy, contractures, or other interference. He complained of sharp lumbar spine pain with radiating pains down the back of both legs. He did not describe any restrictions to his trunk or neck. The Veteran is able to perform self-care, ambulate or travel beyond the premises of the home, or if hospitalized, beyond the ward of the clinic area. It was also noted that the Veteran is able to leave his home whenever he wants or needs to, or as often as he wishes. However, the Board notes that he requires the use of an assistive device or the assistance of another person and usually goes only 1 block from his home. The Board notes that the Veteran was afforded an examination in August 2021 to determine his ability to work. It indicated that the Veteran has difficulty with prolonged walking and therefore uses a motorized scooter. He cannot lift or bend over to carry objects or pick up items up from off the ground. In an August 2021 addendum medical report, the examiner noted that the Veteran's claims folder with buddy statements and private medical opinion noted that the Veteran needs assistance with dressing and bathing. He needs assistance getting into the shower. He is able to feed himself and attend to the wants of nature independently, but he requires help getting onto the commode. He is unable to bend, lift or carry objects. While he is able to feed himself with food in front of him, he is unable to cook his own meals. Upon review of the record, the Board finds that the Veteran likely needs the regular aid and assistance of another person due to his service-connected disabilities. The Board is particularly mindful of the Veteran's moderate to severe level of disability in his right leg and his low back which causes significant difficulties in mobility. The Veteran demonstrated some abilities of daily living such a shaving, dressing, and feeding himself. However, the evidence also demonstrates that because of his poor balance and difficulties with mobility, he requires assistance in other important activities such as bathing and getting onto the commode. He also requires the help from his spouse to maintain daily chores, putting on shoes, and preparing food. While his declining health is not severe enough as to require a nursing home, the Board finds his condition significant to require aid and attendance. The Board specifically highlights that 38 C.F.R. § 3.352 (a), allows for special monthly compensation based on the need of aid and attendance is warranted if the Veteran's service-connected disabilities cause the inability of the Veteran to keep himself ordinarily clean and presentable and the inability to attend to the wants of nature. 38 C.F.R. § 3.352 (a). Additionally, the record also shows that the Veteran has significant difficulties with mobility due to the impairment caused by his lower extremities and his low back disability, which causes severe gait and balance problems. While it was previously noted that he can leave his home, he often only travels one block and then only with the assistance of assistive devices and another person. Resolving reasonable doubt in favor of the Veteran, the Board finds that due to his service-connected disabilities, he is in need for regular aid and attendance. See 38 C.F.R. § 3.352 (a). As the Veteran has met more than one factor set forth in VA regulations in determining the need of regular aid and attendance, the Board finds that the criteria for an award of special monthly compensation have been met. See Prejean v. West, 13 Vet. App. 444, 448 (2000). REASONS FOR REMAND Entitlement to special adapted housing and special home adaptation is remanded. The Veteran is currently service connected for right lower extremity radiculopathy at 40 percent, lumbar thoracic strain with lumbar spine intervertebral disc syndrome and scoliosis at 40 percent, right lower extremity radiculopathy of the femoral nerve at 30 percent, left lower extremity radiculopathy of the sciatic nerve at 20 percent, left lower extremity radiculopathy of the femoral nerve at 20 percent, and a left ankle achilles tendonitis at a noncompensable rating. As an initial matter, the Veteran has not asserted that his service-connected disabilities include or involve burn injuries, inhalational injuries, blindness, or amyotrophic lateral sclerosis. Further, as explained above, the Veteran's service-connected disabilities have not been shown to have effectively deprived him of the functional use of one, let alone both, hands. Eligibility on these bases is therefore not warranted. Instead, the Veteran has significant disabilities in his low back and lower extremities that have imposed limitations of motion. In July 2021, the Board remanded these matters to obtain a medical opinion on whether the Veteran's service-connected disabilities result in the loss or loss of use of the Veteran's lower extremities enough to warrant the grant of specially adapted housing and special home adaptation. However, a medical opinion has not been obtained. Therefore, the Board finds that a remand is warranted for substantial compliance with the previous Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain a medical opinion to determine the current severity of the Veteran's service-connected disabilities relating to his eligibility for specially adapted housing or special home adaptation grant. If required, please schedule an examination for the Veteran. In issuing his or her opinion, the examiner should determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities, alone, are of such severity as to preclude him from ambulating without the use of an ambulatory device. In responding to this question, the examiner should address whether and how frequently the Veteran must use an ambulatory device (cane, wheelchair, walker, brace, etc...) in order to walk and get around (both within and outside the home). Answers to questions such as the following may prove helpful: What ambulatory aids does the Veteran use for locomotion, and with what frequency? How far, if at all, is the Veteran able to walk independently? Does the Veteran use ambulatory devices inside his home, and if so, what type and how frequently? Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, Associate 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.