Citation Nr: 21039969 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-12 556 DATE: July 1, 2021 ORDER Entitlement to service connection of left lower extremity neuropathy is denied. Entitlement to service connection of right lower extremity neuropathy is denied. Entitlement to service connection of left upper extremity neuropathy is denied. Entitlement to service connection of right upper extremity neuropathy is denied. REMANDED Entitlement to service connection of depressive disorder not otherwise specified, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection of left upper extremity radiculopathy is remanded. Entitlement to service connection of right upper extremity radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran does not have a present diagnosis of lower extremity neuropathy; his neurological symptoms are attributed exclusively to his service-connected lower extremity radiculopathy. 2. The Veteran does not have a present diagnosis of upper extremity neuropathy; his neurological symptoms are attributed exclusively to his upper extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral lower extremity neuropathy, due to service or a service-connected low back disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). 2. The criteria for service connection for bilateral upper extremity neuropathy are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, this appeal previously came before the Board in January 2020, at which time the issues on appeal were remanded for additional development. Also remanded at that time were claims of service connection of a low back disability and radiculopathy of the right and left lower extremities. Following the ordered development, the RO issued a rating decision in March 2021 granting service connection of lumbar strain, lumbar degenerative disc disease, and lumbar degenerative joint disease, as well as right and left lower extremity radiculopathy. As that constitutes a complete grant of those issues, they are no longer before the Board for further appellate review. It is noted that, although the RO granted service connection of right lower extremity radiculopathy in the March 2021 rating decision, it continued to include the issue of service connection of right-sided lumbosacral radiculopathy in the supplemental statement of the case, continuing to deny that claim. However, the Veteran's right-sided lumbosacral radiculopathy was clearly identified as right lower extremity radiculopathy in the most recent VA examination, and was granted service connection. As all symptoms of one are attributed to both, and the Veteran's service-connected radiculopathy is clearly related to his service-connected lumbosacral spine disability, those issues are in fact the same, and the inclusion of the right-sided lumbosacral radiculopathy in the supplemental statement of the case was in error. It has not been included in this decision as that issue has been granted. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Regardless of whether a disability is listed as "chronic" for presumptive purposes, a continuity of symptoms from the time of service to the present is a factor to consider in assessing a claim. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 1. Entitlement to service connection of left lower extremity neuropathy 2. Entitlement to service connection of right lower extremity neuropathy During the pendency of the prior remand, the Veteran was granted service connection of his low back disability, and with it, the related right and left lower extremity radiculopathy. However, the Veteran's appeal has included consideration of both lower extremity radiculopathy and neuropathy as separate diagnoses potentially causing his lower extremity neurological symptoms. To the extent that these are separate diagnoses, the Board will deny the neuropathy claims as there is no present diagnosis. The Veteran was afforded VA examinations in April 2007, June 2013, and February 2021. All of those examinations, while certainly identifying neurological symptoms in the lower extremities, have attributed those symptoms to lower extremity radiculopathy. There is no evidence of any actual diagnosis of neuropathy, as a separate disability from radiculopathy. The Board further notes that the Veteran submitted a January 2021 private spine evaluation, as well as earlier medical opinions and treatment records, which also failed to identify a diagnosis of neuropathy as separate from his radiculopathy. In this matter, there is simply no evidence of a diagnosed "neuropathy" condition in either lower extremity. As such, the claim fails the primary criteria of service connection and must be denied. In doing so the Board recognizes that the Veteran's lower extremity neurological symptoms have been granted service connection in full as the result of his bilateral radiculopathy. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 3. Entitlement to service connection of left upper extremity neuropathy 4. Entitlement to service connection of right upper extremity neuropathy The Veteran seeks service connection of an upper extremity neurological condition. The Board finds that the claims of service connection for upper extremity neuropathy should be denied. The Veteran has been afforded multiple VA examinations between April 2007 and February 2021. While examinations have identified neurological symptoms affecting his upper extremities, those examinations have generally attributed the symptoms to the separate diagnosis of upper extremity radiculopathy. The Board has reviewed a private opinion dated December 2011 which notes that neuropathy could be a resultant symptom of the type of back injury the Veteran sustained in service but does not go so far as to make that diagnosis. A private examination report submitted in December 2021 does not give any such diagnosis. After a careful review of the evidence of record, the Board finds that the claims of service connection for bilateral upper extremity neuropathy should be denied as the evidence does not support a present diagnosis of that condition, and therefore the claims fail the primary criteria of service connection. In making this decision, the Board does observe that the Veteran has a diagnosis of upper extremity radiculopathy, which is a separate disability. The claims pertaining to upper extremity radiculopathy remain on appeal, and are addressed in the remand, below. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection of depressive disorder not otherwise specified, to include as secondary to service-connected disabilities is remanded. Inasmuch as the Board regrets any further delay in the adjudication of this appeal, an additional remand is necessary to ensure a completely developed claim. The Board previously remanded this appeal for an addendum opinion, specifically to address the question of secondary service connection. The Board requested that opinions be obtained which considered whether the Veteran's current depressive disorder was either (a) caused by, or (b) aggravated by the Veteran's various service-connected disabilities. Unfortunately, the Board finds these opinions to be inadequate. A secondary opinion pertaining to direct causation by either the Veteran's tinnitus or peripheral vestibular disease was obtained in August 2020. However, an aggravation opinion was not obtained until March 2021. The Board finds that opinion problematic for several reasons. The actual opinion itself states that the claimed condition "which clearly and unmistakably preexisted service, was not aggravated beyond its natural progression by an in-service event, injury or illness." It then goes on to discuss how the Veteran's depression did not result in psychiatric care until 30 years after discharge, and his tinnitus and vestibular disorders first occurred in service, and therefore could not aggravate the depression. While the concept of aggravation of a disability may be relevant in both a secondary service connection claim, as well as a claim of service connection for a condition which preexisted service, they are not the same claims. Therefore, the opinion itself, as offered by the examiner does not make sense within the context of this appeal. Further, the question on appeal is not whether the Veteran's tinnitus and vestibular conditions, as they first presented during service aggravated the present depression, but whether those conditions, as they exist now, aggravate the present depression. As such, a new opinion should be obtained which addresses the question relevant to the issue on appeal. Additionally, as was noted in the prior remand, the Veteran has submitted evidence indicating that his depression may be caused or aggravated by his various service-connected conditions. As is noted above, the Veteran has been granted service connection of a low back condition with bilateral lower extremity radiculopathy. A secondary opinion should also be obtained which assesses any causation or aggravation by that condition. 2. Entitlement to service connection of left upper extremity radiculopathy is remanded. 3. Entitlement to service connection of right upper extremity radiculopathy is remanded. The Board previously remanded this appeal as intertwined with the low back claim. Although no new examination was ordered, the examiner did not find an upper extremity radiculopathy to be related to the now service-connected lumbar spine disability. However, the Board observes that the Veteran's service treatment records do document complaints of "back" pain during active service, and the Veteran has attested that his in-service back pain was due to a heavy lifting injury. A 2013 VA opinion declined to find a nexus between the Veteran's radiculopathy and in-service lifting injury, however, the discussion associated with that opinion only discussed the right lower extremity radiculopathy and did not address the upper extremity radiculopathy. Although not going so far as to offer a specific opinion, a statement submitted by a private physician also indicated that the type of injury the Veteran sustained in service could lead to cervical spine issues with resulting radiculopathy (it is noted that the Veteran has not claimed service connection of a cervical spine disability and it is not part of this appeal). As such, the Board will remand these claims for a medical opinion which explicitly addresses whether the Veteran's upper extremity radiculopathy is related to his in-service injury. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his appeal. 2. Obtain an addendum opinion from an appropriate clinician regarding secondary service connection of the Veteran's depressive disorder. The examiner should review the complete claims file and answer the following questions: (a.) Is the Veteran's depressive disorder at least as likely as not caused by any service-connected disability, to include tinnitus, vestibular disorder, or a low back disability with lower extremity radiculopathy? (b.) Is the Veteran's depressive disorder at least as likely as not aggravated beyond its natural state by any service-connected disability, to include tinnitus, vestibular disorder, or a low back disability with lower extremity radiculopathy? The examiner is requested to provide a rationale for any opinion given. The examiner is reminded that the question on appeal pertains to the present state of both the Veteran's depression and his service-connected disabilities. 3. Obtain an addendum opinion from an appropriate clinician regarding service connection of the Veteran's bilateral upper extremity radiculopathy. The examiner should review the complete claims file and answer the following question: (a.) Is it at least as likely as not that the Veteran's bilateral upper extremity radiculopathy is related to his in-service lifting injury with resultant back pain? (Continued on the next page) 4. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 5. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claims remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. Idongesit T. Umo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, 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.