Citation Nr: 21075930 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 19-07 338 DATE: December 21, 2021 ORDER Service connection for a neck disorder, having been withdrawn by the Veteran, is dismissed. Service connection for residuals of a traumatic brain injury (TBI), having been withdrawn by the Veteran, is dismissed. Service connection for right upper extremity neuropathy, having been withdrawn by the Veteran, is dismissed. Service connection for left upper extremity neuropathy, having been withdrawn by the Veteran, is dismissed. New and material evidence having been received, reopening of service connection for a back disorder is granted. Service connection for arthritis of the thoracolumbar spine is granted. Service connection for a right shoulder disorder is granted. Service connection right lower extremity sciatica radiculopathy (hereinafter referred to as radiculopathy), as secondary to service connected arthritis of the thoracolumbar spine, is granted. Service connection left lower extremity radiculopathy, as secondary to service connected arthritis of the thoracolumbar spine, is granted. FINDINGS OF FACT 1. On October 1, 2021, prior to the promulgation of a decision in the instant appeal, the Board of Veterans' Appeals (Board) was informed, on the record at a Board videoconference hearing, that the issues of service connection for a neck disorder, residuals of a TBI, and right and left upper extremity radiculopathy were no longer being pursued on appeal. 2. A February 1963 Regional Office (RO) rating decision denied service connection for a back disorder, finding no currently diagnosed disorder of the back. The Veteran did not file a timely notice of disagreement (NOD) following the February 1963 rating decision, and new and material evidence was not received during the one year appeal period. 3. New evidence received since the February 1963 RO rating decision pertains to a finding that the Veteran has a currently diagnosed back disorder that is related to an in-service motorcycle accident. 4. The Veteran is currently diagnosed with arthritis of the thoracolumbar spine, a right shoulder disorder of parascapular and trapezial strain, and right and left lower extremity radiculopathy. 5. During service the Veteran injured the back and right shoulder in a motorcycle accident. 6. The diagnosed back and right shoulder disabilities are related to the in-service motorcycle accident. 7. The diagnosed bilateral lower extremity radiculopathy is caused by the service connected arthritis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of service connection for a neck disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issue of service connection for residuals of a TBI have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue of service connection for right upper extremity radiculopathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the issue of service connection for left upper extremity radiculopathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The February 1963 RO rating decision denying service connection for a back disorder became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 6. Evidence received since the February 1963 RO rating decision is new and material to reopen service connection for a back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for arthritis of the thoracolumbar spine have been met. 38 U.S.C. §§ 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 8. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a right shoulder disorder have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326. 9. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right lower extremity radiculopathy, as secondary to service connected arthritis of the thoracolumbar spine, have been met. 38 U.S.C. §§ 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326. 10. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left lower extremity radiculopathy, as secondary to service connected arthritis of the thoracolumbar spine, have been met. 38 U.S.C. §§ 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1959 to October 1962. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2017 Department of Veterans Affairs (VA) RO rating decision. The Board notes that this rating decision was a readjudication of an earlier January 2016 RO rating decision. The Veteran testified at an October 2021 Board videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision either grants in full or dismisses all of the service connection issues on appeal, no further discussion of VA's duties to notify and assist is necessary. 1. Service Connection for a Neck Disorder, having been Withdrawn, is Dismissed. 2. Service Connection for Residuals of a TBI, having been Withdrawn, is Dismissed. 3. Service Connection for Right Upper Extremity Radiculopathy, having been Withdrawn, is Dismissed. 4. Service Connection for Left Upper Extremity Radiculopathy, having been Withdrawn, is Dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. On October 1, 2021, prior to the promulgation of a decision in the instant appeal, the Board was informed, on the record at a Board videoconference hearing, that the issues of service connection for a neck disorder, residuals of a TBI, and right and left upper extremity radiculopathy were no longer being pursued on appeal. As the Veteran has withdrawn the appeal regarding the issues of service connection for a neck disorder, residuals of a TBI, and right and left upper extremity radiculopathy, the Veteran has withdrawn the appeal as to these issues; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to the issues of service connection for a neck disorder, residuals of a TBI, and right and left upper extremity radiculopathy, and those issues are dismissed. Service Connection and Reopening Law and Regulation Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Arthritis and lower extremity radiculopathy are "chronic" diseases under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to those issues. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, service connection may be granted for disability that is proximately due to or the result of a service-connected disability. An increase in severity of a non service connected disorder that is proximately due to or the result of a service connected disability, and not due to the natural progress of the non service connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non service connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Reopening of Service Connection for a Back Disorder is Granted. A February 1963 RO rating decision denied service connection for a back disorder, finding no currently diagnosed disorder of the back. The Veteran did not file a timely NOD following the February 1963 rating decision, and new and material evidence was not received during the one year appeal period. As such, the February 2013 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. New evidence received since the February 1963 RO rating decision pertains to a finding that the Veteran has a currently diagnosed back disorder that is related to an in-service motorcycle accident. As such, the Board finds reopening of the issue of service connection for a back disorder to be warranted. 6. Service Connection for Arthritis of the Thoracolumbar Spine is Granted. 7. Service Connection for a Right Shoulder Disability is Granted. The Veteran contends that currently diagnosed back and right shoulder disorders are related to an in-service motorcycle accident. As to the back, the Board finds that the Veteran is currently diagnosed with arthritis of the thoracolumbar spine. Such diagnosis can be found in the reports from a November 2015 VA back examination and a September 2019 private disability evaluation. Further, the report from a November 2015 VA shoulder examination reflects a diagnosis of right shoulder parascapular and trapezial strain. Next, the Board finds that during service the Veteran injured the back and right shoulder in a motorcycle accident. There is no question that the Veteran was involved in a motorcycle accident during service, as a February 1963 rating decision established service connection for multiple scars related to the aforementioned accident. As to the question of whether the Veteran injured the back and/or right shoulder in the motorcycle accident, per an April 1962 follow-up examination, Dr. PW reported that the accident resulted in an injury to the back, particularly at the thoracic area, and noted that the Veteran had pain and limited range of motion in the right scapula (shoulder blade). Such evidence supports that the Veteran injured both the back and the right shoulder during the in-service motorcycle accident. Finally, having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether the currently diagnosed back and right shoulder disorders are related to the in-service motorcycle accident. Again, in April 1962 Dr. PW noted symptoms of pain and limitation of motion in the back and right shoulder, which were caused by an in-service motorcycle accident. At the conclusion of the examination, Dr. PW opined that further recovery was unlikely, and the prognosis was that the Veteran would be aware of stiffness and pain in this area (back and right shoulder) for the rest of his life. During the course of this appeal VA received a September 2019 private disability evaluation from a Dr. SP. Per the evaluation report, the private examiner conducted an extensive review of the evidence of record, to include various reports from Dr. PW, who is discussed above. After reviewing the relevant evidence of record, the private examiner opined that it was at least as likely as not that the Veteran's currently diagnosed arthritis of the thoracolumbar spine was related to the in service motorcycle accident. In rendering this opinion, Dr. SP noted the contemporaneous evidence following the accident that showed that the Veteran suffered a fairly significant contusion injury to the back. Dr. SP also discussed the Veteran's history of chronic low back pain since the in-service motor vehicle accident, which is documented by the Veteran's lay statements and in multiple post service treatment records. Concerning the right shoulder, Dr. SP also found it at least as likely as not that the currently diagnosed right shoulder disorder was related to the in-service motorcycle accident. In rendering this opinion, Dr. SP specifically referred to the April 1962 follow-up examination report in which Dr. PW assessed that the Veteran would have symptoms of pain and stiffness in the right scapula for the rest of his life. As discussed above, the Veteran received VA back and shoulder examinations in November 2015. Further, the Veteran received a new VA back examination in September 2017. All three examinations were performed by the same VA examiner. At the conclusion of each examination, the VA examiner opined that the Veteran's currently diagnosed back and right shoulder disabilities were not related to the in-service motorcycle accident; however, it does not appear that the VA examiner ever considered Dr. PW's April 1962 follow-up examination that includes the prognosis that the Veteran would experience symptoms related to the back and right shoulder for the rest of his life. Rather, it appears that the VA examiner inaccurately assumed that the evidence showed no symptoms until many years after service separation. As the VA opinions are based upon an inaccurate factual premise, they are inadequate for VA rating purposes and of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). In sum, the evidence of record reflects that the Veteran is currently diagnosed with arthritis of the thoracolumbar spine and a right shoulder disorder, and that during service the Veteran injured both the back and right shoulder in a motorcycle accident. In September 2019, after conducting a thorough review of the evidence of record, a private examiner opined that both the back and right shoulder disabilities are related to the in-service motorcycle accident. There is no adequate opinion to the contrary. Resolving reasonable doubt in favor of the Veteran, the Board finds the criteria for service connection for arthritis of the thoracolumbar spine and a right shoulder disorder have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, there is no need to discuss service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 8. Service Connection for Right Lower Extremity Radiculopathy, as Secondary to Service Connected Arthritis of the Thoracolumbar Spine, is Granted. 9. Service Connection for Left Lower Extremity Radiculopathy, as Secondary to Service Connected Arthritis of the Thoracolumbar Spine, is Granted. The Veteran seeks service connection for bilateral lower extremity radiculopathy, as secondary to now service-connected arthritis of the thoracolumbar spine. At the outset, the Board finds that there is a current diagnosis of right lower extremity radiculopathy. Such diagnosis can be found in the report from a September 2017 VA back examination, and the report from a September 2019 private disability evaluation. The evidence of record is less clear as to whether the Veteran has a current diagnosis of left lower extremity radiculopathy. Per the report from the September 2019 private disability evaluation, there was no diagnosis of left lower extremity radiculopathy at that time; however, pursuant to McClain v. Nicholson, 21 Vet. App. 319 (2007), service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present. At the time of the September 2017 VA back examination, the diagnosis was left sided radiculopathy, quiescent (inactive). In other words, the VA examiner acknowledged that the Veteran had left lower extremity radiculopathy, but found it to be non-symptomatic at that time. The Veteran also received a VA peripheral neuropathy examination in November 2015. While the Veteran was not specifically diagnosed with left lower extremity radiculopathy at that time, the VA examiner did report that the Veteran had mild symptoms of pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity. Further, the Board notes that at the October 2021 Board videoconference hearing, the Veteran credibly testified that while the radicular symptoms primarily manifest in the right lower extremity, pain does manifest in the left lower extremity from time to time. In English v. Wilkie, 30 Vet. App. 347 (2018), the United States Court of Appeals for Veterans Claims (Court) held that, where the regulations do not speak to the type of evidence required, objective medical evidence may not be required or favored over lay evidence. In other words, the Veteran is competent to offer lay evidence concerning the presence of pain and numbness in the left lower extremity, even if such symptoms were not noted on examination. Considering the Veteran's lay statements and testimony throughout the course of this appeal, along with the medical evidence discussed above, the Board finds that the evidence supports that the Veteran had an active diagnosis of left lower extremity radiculopathy during the course of this appeal. Having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether the right and left lower extremity radiculopathy was caused by the now service connected arthritis of the thoracolumbar spine. (Continued on the next page) As to the right lower extremity radiculopathy, both the VA examiner in September 2017, and the private examiner in September 2019, opined that the right lower extremity radiculopathy was caused by the now service-connected arthritis of the thoracolumbar spine. Concerning the left lower extremity radiculopathy, the VA examiner in September 2017 also opined that it was at least as likely as not that the now service-connected arthritis of the thoracolumbar spine caused the left lower extremity radiculopathy. While the private examiner in September 2019 did not render a secondary service connection opinion as to the left lower extremity, as the examiner had found no current diagnosis, the private examiner did state that it was probable that the Veteran would develop left leg radiculopathy in the future. Such an opinion is supported by the fact that the Veteran previously had active left lower extremity radiculopathy during the course of this appeal. In sum, the evidence of record supports that, during the course of this appeal, the Veteran was diagnosed with right and left lower extremity radiculopathy, and a VA examiner in September 2017, along with a private examiner in September 2019, opined that the bilateral lower extremity radiculopathy was due to the now service connected arthritis of the thoracolumbar spine. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for right and left lower extremity radiculopathy, as secondary to service connected arthritis of the thoracolumbar spine, on a causation basis, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. As service connection is being granted on a secondary basis, there is no need to discuss service connection on a direct, presumptive, or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.