Citation Nr: 21026831 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-14 326 DATE: May 4, 2021 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for left lower extremity radiculopathy is granted. Entitlement to service connection for right lower extremity radiculopathy is granted. REMANDED Entitlement to service connection for a left upper extremity neurological disorder is remanded. Entitlement to service connection for a right upper extremity neurological disorder is remanded. FINDINGS OF FACT 1. The Veteran's back disability had its onset in service. 2. The Veteran's left lower extremity radiculopathy is proximately due to his service-connected back disability. 3. The Veteran's right lower extremity radiculopathy is proximately due to his service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1968 to May 1968, with additional service in the Oklahoma Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board remanded the claims on appeal for further development in October 2018. As an initial matter, the Board notes that the Veteran's representative has submitted statements consisting of pages of boilerplate language that is not specific to the Veteran's appeal, including a general assertion that she preserves for appeal "all legal errors, errors in fact-finding, failure to follow Manual M21-1, failure to discharge the duty to assist, and any other due process errors." See April 2015 VA Form 9. Such vague, unspecific assertions of general due process errors do not amount to a specific procedural argument in this case and thus need not be addressed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the claimant fails to raise them before the Board). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for a back disability is granted. Here, the evidence of a current back disability is not in dispute, as the Veteran has been diagnosed with degenerative arthritis of the spine. See August 2019 VA examination report. Turning to the second element of direct service connection, in-service incurrence of a disease or injury, the Veteran's service treatment records do not identify any complaints, treatment for, or diagnosis of a back disability or symptoms indicative of the same. However, the Veteran competently and credibly testified as to injuring his back in service from the cumulative impact of working in field artillery, which required him to lift heavy equipment, such as artillery shells and cannon trailers, and caused him to frequently slip and fall. See May 2013 VA Form 21-4138; Board Hearing Transcript at 9-12. His service personnel records indicate that his military occupational specialty was a cannoneer and gunner. Affording him the benefit of the doubt, element two of direct service connection is also met. Regarding the last element, nexus, the only competent opinion of record is in favor of the claim. (In this regard, the August 2019 VA opinion against the claim is of no probative value, as the examiner based her opinion on the lack of chronicity of care documented in the Veteran's medical records.) Specifically, in a November 2020 private examination report, Dr. Ellis opined that the Veteran's back disability was more likely than not related to service, based on the Veteran's competent and credible reports as to the onset and nature of his injuries as well as a review of pertinent medical records. In support of his opinion, Dr. Ellis stated that the Veteran in-service back injuries strained his muscles, ligaments, and other structures of the vertebrae, thereby causing his current back disability. As this favorable opinion is well-reasoned and based on the Veteran's competent and credible lay statements, the nexus element is satisfied, and the benefit sought on appeal is granted. 2. Entitlement to service connection for left lower extremity radiculopathy is granted. 3. Entitlement to service connection for right lower extremity radiculopathy is granted. As secondary service connection under 38 C.F.R. § 3.310(a) is warranted, the Board need not address the Veteran's contentions on direct service connection. Here, the Veteran is currently diagnosed with bilateral lower extremity sciatic nerve radiculopathy. See August 2019 VA examination report and November 2020 private examination report. As discussed above, the Veteran is now service-connected for a back disability. Therefore, the first two elements of secondary service connection are satisfied. Regarding the last element, nexus, the only competent opinion of record is in favor of the claim. Specifically, the August 2019 VA examiner opined that the Veteran's bilateral lower extremity radiculopathy was at least as likely as not proximately due to his back disability. Additionally, the November 2020 private examination report identifies bilateral lower extremity lumbar radiculopathy associated with Veteran's back disability. These findings are demonstrative of an etiological relationship between the Veteran's back disability and his bilateral lower extremity radiculopathy, and there is no competent opinion to the contrary. Accordingly, secondary service connection for bilateral lower extremity radiculopathy is granted. REASONS FOR REMAND 4. Entitlement to service connection for a left upper extremity neurological disorder is remanded. 5. Entitlement to service connection for a right upper extremity neurological disorder is remanded. Remand is necessary, as the August 2019 VA examiner's opinion is inadequate. In this regard, the examiner rendered a negative nexus opinion without sufficient rationale and speculated that the Veteran's diabetes could be the underlying etiology of his bilateral upper extremity neuropathy. Therefore, an addendum opinion is needed on remand, as well as any outstanding treatment records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Obtain an addendum opinion from an examiner other than the August 2019 VA examiner regarding the etiology of the Veteran's bilateral upper extremity neurological disorder. The entire claims file should be made available to the examiner. No additional examination of the Veteran, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed neuropathy of the bilateral upper extremities (see August 2019 VA examination report) had their onset in or are otherwise related to active duty or National guard service, to include as a result of the documented July 1969 Rocky Mountain spotted fever from a tick bite therein. In addressing this question, the examiner must discuss the Veteran's lay statements regarding the onset of nerve pain during service (see Board Hearing Transcript at 22-23), as well as the medical articles submitted in July 2018 "Long-term sequelae of Rocky Mountain spotted fever" and "Atypical Rocky Mountain spotted fever with polyarticular arthritis." Please assume the Veteran's statements are true and determine, based on the same, whether a nexus between the Veteran's neurological disorders and service is "medically plausible." S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.