Citation Nr: 21073198 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 06-22 983 DATE: December 7, 2021 ISSUE Entitlement to service connection for radiculopathy and/or brachial neuritis of the right upper extremity, to include as due to service-connected degenerative disc and joint disease of the cervical spine. REMANDED Entitlement to service connection for radiculopathy and/or brachial neuritis of the right upper extremity, to include as due to service-connected degenerative disc and joint disease of the cervical spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from January 1978 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. In July 2013, the Veteran testified in a videoconference hearing before a Veterans Law Judge (VLJ). A hearing transcript is of record. In correspondence from October 2018, the Veteran was informed that the VLJ who conducted the July 2013 hearing is no longer employed at the Board, and he was asked if he desired a Board hearing before another VLJ. In correspondence submitted in October 2018, the Veteran indicated that he did not wish to schedule another hearing. In relevant part, the Veteran's claim as identified above was remanded by the Board for further development and adjudication in October 2013, and most recently in September 2020. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for radiculopathy and/or brachial neuritis of the right upper extremity, to include as due to service-connected degenerative disc and joint disease of the cervical spine is remanded. The Veteran has claimed that he has radiculopathy and/or brachial neuritis of the right upper extremity, and that this may be proximately due to or aggravated by his service-connected cervical spine disability. Service connection may be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran testified in a Board hearing from July 2013 that he experiences pain and numbness in the arms, especially when he is "lifting something that makes me move my neck and it huts in the cervical area ... then my arms will go active." In the Veteran's Notice of Disagreement (NOD) from January 2007, the Veteran provided more details of the pain and numbness to his right upper extremity. He wrote that he experiences functional difficulties, such as trouble sleeping and that he has dropped things. The Veteran described instability and numbness, which affects all of his extremities, including "similar issues with [his] arms and hands." The Veteran is competent to report the symptoms he experiences, such as those associated with his right upper extremity. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As noted in the most recent Board Decision from September 2020, a July 2018 VA examination showed radicular pain, signs and symptoms of the right upper extremity, with involvement of the C5/C6 nerve roots. The Board also noted that the Veteran was currently service-connected for brachial neuritis of the left upper extremity, to include moderate nerve damage of the ulnar and median nerve, associated with his service-connected degenerative disc and joint disease of the cervical spine. Furthermore, the September 2020 Board Decision noted that the Veteran had filed a claim for an increased rating for his service-connected cervical spine disability. Therefore, the Board remanded the issue of whether the Veteran was entitled to a separate disability rating for radiculopathy of the right upper extremity, as the Veteran was presumed to be seeking the maximum available benefit allowed by law or regulation. See further, AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the Veteran's claim was remanded for a VA examination to provide an etiological opinion on secondary service connection. That VA examination occurred in October 2021. The Veteran was seen in person, and his claims file was reviewed. The examiner noted a current diagnosis of nerve neuropathy at the carpal tunnel from September 2013. The examiner cited evidence from a private treatment record from November 2005 whereby the Veteran reported "arm pains and numbness and dropping objects especially on his right hand." Further records cited include neurology notes from October 1998, July 2007, and September 2013. There is no indication that either the Veteran's testimony, or his lay statements were considered. The examiner then provided the following opinion: 62-year-old male who served in the Air Force from 1978 to 1998 working with computers. Medical records are silent for any in-service chronic right wrist condition or injury. On exam today Veteran had subjective symptoms of right-hand numbness tingling and pain. Records of right hand/wrist pain appear in [July 2007] and [November 2005] where he was diagnosed with right carpal tunnel syndrome. Cervical spine x-ray dated October 1998 was read as normal. EMG dated [September 2013] clearly and unmistakably notes no cervical radiculopathy and was [positive] for right carpal tunnel. Also [the private neurologist R.S.] clearly stated 'his neurological exam is unremarkable, and I do not see anything to account for all of his symptoms, certainly the complaints of dropping things.' Therefore, it is less likely than not that the Veteran has radiculopathy of the right upper extremity that is associated with his service-connected disability of the cervical spine. As such, a negative etiological opinion was provided. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In consideration of the above, the Board finds that the October 2021 VA examination and etiological opinion are inadequate. To begin, there is no indication that the examiner considered the Veteran's testimony or lay statements, which is required. Second, the examiner relied on records that are at the earliest, eight years old (September 2013). At the latest, the examiner relied on records from October 1998, over two decades ago. The examiner then used these records to essentially deny that the Veteran had a diagnosis of cervical radiculopathy for the right upper extremity. They did however include a diagnosis of carpal tunnel right nerve neuropathy. Therefore, it is unclear, based on the opinion provided, whether or not the examiner was denying the Veteran's diagnosis of radiculopathy to the right upper extremity, or providing a negative etiological opinion in relation to the right extremity carpal tunnel syndrome. Regardless, the opinion provided is brief and conclusory, and it does not provide an opinion on possible aggravation of the Veteran's right arm neuropathy, due to the cervical spine disability. The Board is also reminded that the Veteran has been granted entitlement to service connection for brachial neuritis of the left upper extremity to include moderate nerve damage of the ulnar and median nerve, associated with degenerative disc and joint disease of the cervical spine. The Veteran's claim for his right upper extremity is based on the same theory for which the left upper extremity is currently service-connected. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran must be given a VA examination, so that an etiological opinion may be provided on a secondary basis. The matters are REMANDED for the following action: 1. Obtain any outstanding and ongoing VA treatment records. Associate such records with the claims file. 2. Schedule the Veteran for a VA examination (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) by a VA neurologist, or other appropriate specialist, to determine the nature and etiology of the Veteran's radiculopathy and/or brachial neuritis of the right upper extremity (also diagnosed as nerve neuropathy and/or carpal tunnel syndrome). After a review the Veteran's claims file, to include a copy of this remand, the examiner is asked to opine as to the following: (a.) whether it is at least as likely as not that the diagnosed radiculopathy and/or brachial neuritis of the right upper extremity (also diagnosed as nerve neuropathy and/or carpal tunnel syndrome) is either (1) proximately due to service-connected degenerative disc and joint disease of the cervical spine, or (2) aggravated beyond its natural progression by service-connected degenerative disc and joint disease of the cervical spine. The examiner is reminded than an opinion on possible aggravation is required. Even if the examiner is unable to determine a baseline severity prior to the aggravation, the examiner is directed to the language of 38 C.F.R. § 3.310 (b) which indicates that the baseline can be measured by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The examiner is reminded that the Veteran has provided lay statements and competent testimony regarding pain and numbness to the right upper extremity, in addition to "dropping things." The examiner is also reminded that the Veteran has been granted entitlement to service connection for brachial neuritis of the left upper extremity to include moderate nerve damage of the ulnar and median nerve, associated with degenerative disc and joint disease of the cervical spine, and that his claim for the right upper extremity is based on the same theory for which the left upper extremity is currently service-connected. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on next page.) 3. After the development directed above has been completed, and after any additional development deemed necessary, readjudicate the issues on appeal. If a benefit sought on appeal is not granted, the Veteran should be furnished a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.