Citation Nr: 21007060 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 04-31 861 DATE: February 8, 2021 ORDER Service connection for a bilateral lower extremity radiculopathy, manifested by numbness and tingling as secondary to service-connected flat-topped talus right foot with arthritic changes, is granted. Service connection for a bilateral cervical radiculopathy, manifested by numbness and tingling, is denied. The claim for a total disability rating for individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Medical evidence indicates that the Veteran’s bilateral extremity radiculopathy is proximately due to his service-connected flat-topped talus right foot with arthritic changes. 2. The most probative evidence of record shows that the Veteran’s bilateral cervical radiculopathy was not caused by his military service, and did not have its onset during military service. 3. The Veteran is unable to obtain or maintain substantially gainful employment on account of his service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral lower extremity radiculopathy have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. 2. The criteria for service connection for bilateral cervical radiculopathy have not been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for a TDIU have been met. 38 U.S.C. § 501; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1981 to June 1983. In September 2017, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. This case was most recently before the Board in February 2019. At that time, the Board remanded the Veteran’s claims for further development and adjudication. The requested development has been accomplished and the matters have returned to the Board for further appellate consideration. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. 1. Service Connection for Bilateral Lower Extremity Radiculopathy is granted. In the analysis below, the Board will grant the claim for service connection bilateral lower extremity radiculopathy, as secondary to the service-connected flat-topped talus right foot with arthritic changes. As the Board is granting the Veteran’s claim on a secondary basis, further discussion addressing the theories of direct and presumptive service connection is not warranted. The record contains competent medical evidence corroborating the Veteran’s assertion that his current bilateral lower extremity radiculopathy is caused by his service-connected right foot disability. The Veteran has been granted service connection, in part, for flat-topped talus right foot with arthritic changes. In an October 2019 opinion, a VA examiner opined that it was at least as likely (50 percent or greater) that the Veteran’s bilateral lower extremity radiculopathy was caused or aggravated (made worse) by his service-connected foot condition. The VA examiner reasoned that the Veteran started to have lower back problems in 1982 after he had injured his right foot, that he started to favor his right foot and, in turn, he altered his normal body mechanics. As a result, according to the examiner, in 1982-1983, he began to experience intermittent bilateral lower extremity radiculopathy that persisted throughout service and thereafter and increased in 2016, and received chiropractic treatment. The Veteran noted worsening of the bilateral lower extremity radiculopathy, left greater than right in 2016, and that he had received chiropractic treatment. The Board finds the VA examiner’s opinion to be of high probative value in evaluating the claim because it was supported by medical reasoning and rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This opinion is supportive of the secondary service connection theory of the claim. There is no other opinion that is against this theory of the claim. Thus, the Board finds that evidence of record supports the claim for service connection for bilateral lower extremity radiculopathy as secondary to service-connected flat-topped talus right foot with arthritic changes. 2) Service connection for a bilateral cervical radiculopathy manifested by numbness and tingling, is denied. The Veteran has been diagnosed with bilateral cervical radiculopathy. See October 2019 Peripheral Nerve Disability Benefits Questionnaire (DBQ). Thus, the first Shedden element has been met. Regarding Shedden element number two, in-service disease or injury, the Veteran’s service treatment records are devoid of any subjective complaints or clinical findings referable to the any neck pain or upper extremity problems or diagnoses. Thus, the claim fails on Shedden element number two (2). Notwithstanding the foregoing, the Veteran testified that he had some kind of affect going on in his upper extremities and his hands in service. Transcript (T.) at page (pg.) 24)). The Veteran’s statements are competent as to experiencing some type of upper extremity pathology during military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Board finds that Shedden element number two (2), evidence of in-service disease, has been met with respect to the Veteran having had upper extremity pathology during military service. Thus, the Veteran’s claim hinges on whether his currently diagnosed bilateral cervical radiculopathy is etiologically related to his period of military service. There is one VA opinion that is against the claim. In October 2019, a VA examiner opined, after a physical evaluation of the Veteran, that the Veteran’s bilateral cervical radiculopathy is less likely than not to have begun during or been otherwise caused by his military service since the symptoms were only noted over the last five (5) years. The VA examiner Veteran indicated that the Veteran reported that he had cervical radicular symptoms since 2016. He denied any neck pain during service. This opinion is against the direct service connection theory of the claim. There is no other evidence, private or VA, that is supportive of the claim. Thus, the Board finds that the evidence of record weighs against the claim for service connection for bilateral cervical radiculopathy. In reaching this decision, the Board has considered the Veteran’s assertions. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 3) TDIU is granted. The Veteran’s service connected disabilities meet the criteria for a TDIU, as he is currently at 90 percent (with an additional rating being assigned based on this decision). 38 C.F.R. § 4.16. The Veteran’s service connected disabilities clearly preclude physical jobs. See April 2008 VA examination; June 2013 medical opinion. Although there has been some suggestion that the Veteran could undertake sedentary work, this would seem to be unlikely based on the Veteran’s service connected headache disability as well as his limited education and skill sets. Accordingly, a TDIU is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.