Citation Nr: A21020110 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 210804-176628 DATE: December 16, 2021 REMANDED Entitlement to service connection for left lower extremity (LLE) radiculopathy, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for right lower extremity (RLE) radiculopathy, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for left upper extremity (LUE) radiculopathy, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for right upper extremity (RUE) radiculopathy, to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1957 to May 1959, with prior Reserve service. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the VA's decision on their claim to seek review. The agency of original jurisdiction (AOJ) denied service connection for these claims in a January 2021 AMA rating decision. The Veteran submitted a Decision Review Request: Supplemental Claim for these matters in June 2021. The AOJ issued a rating decision in June 2021, which found new and relevant evidence had been received to readjudicate the claims and confirmed the previous denials of service connection. In his August 2021 notice of disagreement (NOD), the Veteran selected a Board of Veterans' Appeals (Board) appeal with evidence submission reviewed by a Veterans Law Judge, providing him an additional 90 days to submit evidence and reflecting that the Veteran does not want a Board hearing. Accordingly, the Board will consider the evidence of record at the time of the June 2021 decision, and the evidence submitted within 90 days of the Veteran's August 2021 NOD. 1. Entitlement to service connection for LLE radiculopathy, to include as secondary to service-connected disabilities 2. Entitlement to service connection for RLE radiculopathy, to include as secondary to service-connected disabilities 3. Entitlement to service connection for LUE radiculopathy, to include as secondary to service-connected disabilities 4. Entitlement to service connection for RUE radiculopathy, to include as secondary to service-connected disabilities The Veteran is seeking entitlement to service connection for bilateral upper and lower extremities radiculopathy. The Veteran contends that these disabilities are due to his service-connected back and neck disabilities. In the June 2021 rating decision, the AOJ made Favorable Findings that the Veteran's claimed primary back and neck disabilities are service connected. The Board is bound by these favorable findings. Therefore, the remaining questions are whether the Veteran has current radiculopathy disabilities that are related to or aggravated by these service-connected disabilities or otherwise related to his military service. The Veteran's VA medical records contain complaints of radiculopathy symptoms and swelling with numbness of the bilateral upper and lower extremities. The VA treatment records also indicate that such complaints were being treated by the Veteran's primary care physician (PCP). The Veteran was afforded a VA examination in November 2020. The examiner provided negative nexus opinions with the rationale that there is no objective evidence to support a diagnosis of upper or lower extremities radiculopathy. The examiner further provided that the Veteran's upper and lower extremities symptoms are most likely multifactorial caused by peripheral vascular disease in concert with his history of vitamin B12 deficiency. The Veteran's private certified vocational evaluator submitted a June 2021 independent disability evaluation and noted that the Veteran's records were reviewed. The evaluator provided positive nexus opinions with the rationale that the Veteran's radiculopathy is a direct result of his back and neck disabilities. However, the evaluator does not provide a rationale to support this opinion. The evaluator also referenced the Veteran's PCP who opined that these disabilities were related to his service-connected disabilities. However, this opinion was not of record at that time. The Veteran's PCP (Dr. I.R.) submitted a July 2021 letter; he noted that the Veteran has a long history of lumbar spondylitis and compression neuropathy and opined that these disabilities are at least as likely as not related to injuries received in the military. The PCP failed to provide treatment records or a rationale to support this opinion and does not acknowledge the presence of the nonservice-connected peripheral vascular disease. The Board notes that the treatment records from this PCP are not of record, but the Veteran was invited to send a release for them in December 2020. If the Veteran still wants VA to get those records or can obtain them himself they may be helpful in resolving this claim. Additionally, given the above conflicting diagnoses, a remand is necessary to afford the Veteran with a clarifying VA addendum opinion or VA examination. This was a pre-decisional duty to assist error as the Veteran's VA treatment records indicate the existence of such diagnoses (even without PCP Dr. I.R.'s letter). When the Board identifies a pre-decisional duty to assist error in an AMA appeal, under Pub. L. No. 115-55, section 2(d)(2); 38 C.F.R. §§ 3.159(c), 20.802(a), the Board will remand the appeal back to the AOJ with instructions to correct the error. Following correction of the error, the AOJ must readjudicate the issue. Pub. L. No. 115-55, § 2(d)(2); 38 C.F.R. § 3.2502. Therefore, the appeal is remanded for an addendum opinion correcting the inadequacies described above. The matters are REMANDED for the following action: 1. Arrange for appropriate examinations and/or medical reviews with an examiner of appropriate expertise in order to obtain opinions concerning the current nature and etiology of the Veteran's bilateral upper and lower disabilities. All necessary tests should be conducted, if examined. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: (a.) List all currently diagnosed disabilities of the upper or lower extremity. (b.) For any diagnosed disability of the upper and/or lower extremity, offer an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that such disorder had its onset or is otherwise etiologically related to the Veteran's period of active service or a service-connected disability. This should include a discussion of whether any radiculopathy disability found is proximately due to, the result of, or aggravated by the Veteran's service-connected back or neck disabilities. (c.) The examiner should provide a detailed rationale for all opinions offered, including a discussion of the evidence of record and medical principles which led to the conclusions reached. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.