Citation Nr: 21014058 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-40 270A DATE: March 11, 2021 REMANDED Entitlement to service connection for radiculopathy of the right upper extremity is remanded. Entitlement to a rating greater than 10 percent for lumbar degenerative disc disease (DDD) and spondylosis prior to April 3, 2016, and greater than 40 percent since April 3, 2016, is remanded. Entitlement to a rating greater than 10 percent for cervical DDD and spondylosis is remanded. Entitlement to a rating greater than 20 percent for left upper extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from October 1970 to August 1991. The Veteran had a Board hearing in March 2021 before the undersigned. The claims are being adjudicated under the One-Touch Program. The hearing transcript will be associated with the record upon its completion. ALL ISSUES At the Board hearing, the Veteran clarified that he has received two surgeries for his low back and compressed vertebrae. He specifically indicated that he had low back therapy in November 2020 at [Decision or Precision] Health of Duluth. He also reported being treated for his cervical spine at Surgeon University of Minnesota. There is an indication that records may be outstanding from the VA in Minneapolis, and privately, from the University of Minnesota (to include from Doctors Roller, Valik, and Sembrano) in May and June 2019 and from [Decision or Precision] Health of Duluth in November 2020. As such, remand is necessary to request the Veteran identify and provide the necessary authorization to obtain private records, after which the RO can request such records. In addition, outstanding relevant VA treatment records, to include from the Minneapolis VA since January 2021 must be obtained. 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for radiculopathy of the right upper extremity is remanded. Here, because left upper extremity radiculopathy is being remanded (as discussed below) for a VA examination, there is a strong possibility that evidence pertaining to a right upper extremity radiculopathy will be developed in connection with addressing the severity of the left upper extremity radiculopathy. where the examination usually addresses the opposing arm, and remand is warranted to consider whether VA examination shows a current disability. The examiner should specifically address the Veteran’s symptoms, and indicate whether he has a current right upper extremity disability, and if so whether there is a nexus to service or secondary to service-connected cervical spine disability, or any other service-connected disability. 38 C.F.R. § 3.159. 2. Entitlement to a rating greater than 10 percent for lumbar degenerative disc disease (DDD) and spondylosis prior to April 3, 2016, and greater than 40 percent since April 3, 2016, is remanded. At his hearing, the Veteran reported that he has limited motion and can lift only 20 pounds or less. He explained that he started therapy for his low back in November 2020. His most recent lumbar spine examination was in February 2020, such that it appears his symptoms have worsened to necessitate the therapy. See March 2020 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Considering the record suggesting worsening of his condition and the need for contemporaneous medical evidence, remand is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to a rating greater than 10 percent for cervical DDD and spondylosis is remanded. At the Veteran’s hearing, he reported that his neck’s limitation of motion has decreased, and he cannot do any overhead work. In light of the record suggesting worsening of his condition and the need for contemporaneous medical evidence, remand is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 4. Entitlement to a rating greater than 20 percent for left upper extremity radiculopathy is remanded. At the Board hearing, the Veteran described experiencing numbness in his arm going to his fingers since November 2020. He reported that it affected his ability to lift and work overhead, sometimes causing him to drop things. Indeed, VA treatment records from November 2020 show that the Veteran reported having left shoulder numbness. See November 2020 CAPRI. The Veteran was examined for his radiculopathy in November 2016. See November 2016 VA Examination Peripheral Nerve Conditions (not including Diabetic Sensory-Motor Peripheral Neuropathy) Disability Benefits Questionnaire. In light of the record suggesting worsening of his condition and the need for contemporaneous medical evidence, remand is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Ask the Veteran to identify and provide authorization to obtain any outstanding, relevant private medical records. A specific request should be made for authorization to obtain records from the physicians identified, Roller, Valik, and Sembrano, and from the institutions identified; University of Minnesota and [Decision or Precision] Health of Duluth. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified. See 38 C.F.R. § 3.159(e). 2. Obtain the Veteran’s VA treatment records from the Minneapolis VA since January 2021. 3. Schedule the Veteran for examination(s) by an appropriate clinician to determine the current severity of his service-connected: (i) lumbar spine disability, (ii) cervical spine disability, (iii) left upper extremity radiculopathy, and. (iv) provide opinions as to the nature and etiology of any right upper extremity radiculopathy. (a) The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria (CONSIDERING BOTH THE RATING CRITERIA IN EFFECT PRIOR TO AND SINCE FEBRUARY 7, 2021). (b) Specifically, the examiner should identify and differentiate where possible between any degenerative arthritis, degenerative disc disease other than intervertebral disc disease, and intervertebral disc syndrome (when there is disc herniation with compression and/or irritation of the adjacent nerve root). (c) For each disability (i)-(ii), the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (d) For each disability (i)-(ii), the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. a. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. b. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (e) For (iii) the Veteran’s left upper extremity radiculopathy, the examiner should provide an opinion as to which nerve(s) are involved, whether it is complete or incomplete paralysis, and degree of severity. The examiner should discuss the specific symptoms, to include the Veteran’s reported numbness in his arm to his fingers, causing him to drop things and to have difficulty doing things overhead. (f) For (iv) claimed right upper extremity radiculopathy, the examiner should indicate: (i) whether the Veteran experiences right upper extremity radiculopathy; (ii) if so, whether it is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease, to include parachuting from airplanes (see January 2016 Hearing testimony); (iii) if not ,whether it is at least as likely as not the right upper extremity radiculopathy was caused by a service-connected disability; (iv) if not ,whether it is at least as likely as not the right upper extremity radiculopathy underwent any incremental increase (aggravation) in disability, regardless of its permanence, due to service-connected cervical spine disability, or any other service-connected disability. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barner, 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.