Citation Nr: 21040467 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-55 606 DATE: July 3, 2021 ORDER Entitlement to service connection for rheumatoid arthritis of the joints (claimed as joint condition) is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity as due to in-service exposure to an herbicide agent is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity as due to in-service exposure to an herbicide agent is granted. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine (claimed as neck condition) is granted. REMANDED Entitlement to a disability rating greater than 40 percent for DDD of the lumbar spine is remanded. Entitlement to service connection for a neurological disorder, to include peripheral neuropathy and carpal tunnel syndrome of the right upper extremity, including as due to service-connected DDD of the lumbar spine, is remanded. Entitlement to service connection for a neurological disorder, to include peripheral neuropathy and carpal tunnel syndrome of the left upper extremity, including as due to service-connected DDD of the lumbar spine, is remanded. Entitlement to service connection for a disability manifested by difficulty breathing is remanded. Entitlement to service connection for a disability manifested by extreme tiredness is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran has experienced symptoms of pain in his joints related to rheumatoid arthritis during and since his separation from service. 2. The record evidence shows that the Veteran's early onset peripheral neuropathy of the bilateral lower extremities is related to in-service exposure to an herbicide agent. 3. The record evidence shows that the Veteran has experienced symptoms of pain in his neck related to DDD of the cervical spine since his separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for rheumatoid arthritis of the joints have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for early onset peripheral neuropathy of the bilateral lower extremities have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(e). 3. The criteria for service connection for DDD of the cervical spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1969 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a Board hearing in his November 2016 Substantive Appeal (VA Form 9). In a November 2019 statement, he withdrew his hearing request in writing. See 38 C.F.R. § 20.702(e) (2018). Service Connection 1. Service connection for rheumatoid arthritis of the joints. The Veteran contended his rheumatoid arthritis was related to the several reports of pain in several joints noted during service. He has rheumatoid arthritis of the joints which is related to service and the claim will be granted. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The February 2016 non-degenerative arthritis VA examination noted the Veteran has a current diagnose of rheumatoid arthritis of the hands, knees, and shoulders. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Thus, the question becomes whether the current disability is related to service. The evidence in favor of the claim includes the February 2016 VA examination which reflects he has had rheumatoid arthritis for many years and has been on many medications over the last few decades. A September 2016 VA medical opinion also reflects that the joint disabilities are related to service-connected lumbar DDD. Service treatment records note numerous complaints of pain associated with the knees, hands, neck, back and legs. He was hospitalized over 2 weeks during service and he was thought to have rheumatoid arthritis at that time. A September 1973 VA examination noted the reported leg, hand, hip and knee pain and indicated that he may have had rheumatoid disease. Additional post service treatment records continued to note reports of various joint pain to include the knees, hands, shoulders, neck, and legs beginning in 1973. These records also reflect he has continued to report joint pain to the present. The Veteran has asserted that he has continued to experience the same symptoms of painful joints during and since service. He is competent to report that he experienced symptoms of pain. His reports are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows the joint pain was attributable to the rheumatoid arthritis initially considered during service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for rheumatoid arthritis of the joints is warranted. 2. Service connection for peripheral neuropathy of the bilateral lower extremities. The Veteran contends that his peripheral neuropathy is related to service. VA's Compensation Service has determined that a special consideration of herbicide agent exposure on a factual basis should be extended to Air Force Veterans whose duties placed them on or near the perimeters of certain Royal Thai Air Force bases (RTAFB) anytime between February 28, 1961, and May 7, 1975. The RO has conceded the Veteran's exposure to herbicide agents during service at the Ubon RTAFB. A September 2012 VA electrodiagnostic report reflects he was diagnosed with peripheral neuropathy of the bilateral lower extremities. VA treatment records as early as May 1974 noted complaints of numbness from the knees to the foot and pain in the lower extremities that were thought to be caused by the lumbar spine disability immediately following service. In December 1972, August 1974 and December 1977, he was examined for possible neurologic problems of the lower extremities which were at times attributable to his lumbar spine disability. He was seen during and immediately following service for conditions involving his back and lower extremities and clear diagnoses could not be rendered at that time. Based on the Board's review of the evidence, it will resolve reasonable doubt in the Veteran's favor and conclude that these reported symptoms were related to early onset peripheral neuropathy. The Board next finds that the early onset peripheral neuropathy of the bilateral lower extremities is presumed to have been caused by his conceded in-service exposure to an herbicide agent. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for early onset peripheral neuropathy of the bilateral lower extremities is warranted. 3. Service connection for DDD of the cervical spine. The Veteran contended his cervical spine disability was related to the several reports of neck pain noted during and immediately following service. As outlined below, he has DDD of the cervical spine which is related to service. A June 2013 VA treatment noted he was diagnosed with DDD of the cervical spine. Arthritis (or DDD) is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Thus, the question becomes whether the current disability is related to service. The evidence in favor of the claim includes service treatment records from May 1973 that note the reports of painful neck. In July 1973 private treatment records note the reports of neck pain due to low back pain. A May 1974 VA treatment record noted neck pain for 6 months and noted the pain may be related to the lumbar spine condition. A July 1982 VA examination noted the report of pain in back of his neck. An October 1989 VA examination continued to note pain and stiffness in the neck that was complicated by a March 1988 automobile accident. Medical treatment records continued to reflect the report of neck pain and an ultimate diagnosis of DDD of the cervical spine. The Veteran has asserted that he has continued to experience the same symptoms of pain and stiffness in the neck during and since service. He is competent to report that he experienced symptoms of neck pain. His reports are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows the neck pain was attributable to the current DDD of the cervical spine. See Jandreau, 492 F. 3d at 1372. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for DDD of the cervical spine is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating greater than 40 percent for DDD of the lumbar spine is remanded. The Veteran contends his lumbar spine disability warrants a higher rating. He was last afforded a VA examination in November 2015. There have been conflicting VA opinions as to whether the Veteran's suffers from ankylosis spondylitis. Review of the opinions of records do not provide a clear indication as to whether the Veteran has ankylosis of the spine. The Board finds an additional examination is warranted to determine the current nature and severity of the Veteran's service-connected lumbar spine disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to service connection for a neurological disorder, to include peripheral neuropathy and carpal tunnel syndrome of the right upper extremity, including as due to service-connected DDD of the lumbar spine, is remanded. 3. Entitlement to service connection for a neurological disorder, to include peripheral neuropathy and carpal tunnel syndrome of the left upper extremity, including as due to service-connected DDD of the lumbar spine, is remanded. The Veteran contends that his neurological disorders of the bilateral upper extremities are related to complaints of upper extremity pain during service and his exposure to an herbicide agent. He alternatively contends that his service-connected DDD of the lumbar spine caused or aggravated his neurological disorders of the bilateral upper extremities. The record contains a September 2016 VA medical opinion which notes the Veteran's current nerve condition was less likely than not related to or due to complaints shown during service. The examiner noted there was no neurological diagnoses during or immediately following service and the Veteran was not diagnosed with radiculopathy; therefore, he had no neurological disorder related to his lumbar DDD. This opinion is inadequate, as the examiner based the opinion on the absence of evidence and did not opine whether the Veteran's neurological disorder was aggravated by his service-connected lumbar spine disability. The Veteran submitted a private medical opinion in December 2019, but the examiner did not specify whether he had peripheral neuropathy of the bilateral upper extremities. Therefore, a remand is required to determine the nature and etiology of any neurological disorder of the bilateral upper extremities. 4. Entitlement to service connection for a disability manifested by difficulty breathing is remanded. 5. Entitlement to service connection for a disability manifested by extreme tiredness is remanded. The Veteran contends his disabilities manifested by difficulty breathing and extreme tiredness are related to service. The record contains September 2016 VA medical opinions that note the Veteran's current respiratory symptoms and extreme tiredness were not related to service as there was no documentation proving continuity of symptoms since service and the Veteran did not have a current diagnosis of extreme tiredness. These opinions are inadequate for VA adjudication purposes. The Board finds a remand is required as the Veteran was not afforded a VA examination to determine if he had an current diagnosis associated with his symptoms of difficulty breathing or extreme tiredness or whether these symptoms are attributable to a service connected disability. 6. Entitlement to a TDIU is remanded. Finally, the Board notes that the issue of TDIU has been raised by the record. In statements received in December 2019, the Veteran reported that his service-connected disabilities effected his ability to work. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, because a decision on the remanded issues could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, adjudication of the TDIU claim must be deferred. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the current severity of his service-connected lumbar spine disability. 3. Schedule the Veteran for examination to determine the nature and etiology of any neurological disorders of the bilateral upper extremities. If possible, this examination should be conducted by a clinician other than the clinician who provided the September 2016 VA medical nexus opinion. The claims file and a copy of this REMAND must be provided for review. Based on a review of the claims file and the results of the Veteran's examination, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a neurological disorder of the bilateral upper extremities, if diagnosed, is related to active service or any incident of service, to include the Veteran's conceded in-service exposure to an herbicide agent. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected lumbosacral spine disability caused or aggravated a neurological disorder of the bilateral upper extremities, if diagnosed. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each neurological disorder of the bilateral upper extremities experienced by the Veteran, if possible. A separate opinion and rationale also should be provided for each of the Veteran's upper extremities, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a neurological disorder of the bilateral upper extremities, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised that VA has conceded that the Veteran likely was exposed to herbicides while on active service. The clinician finally is asked to not review or rely upon a September 2016 VA medical nexus opinion in preparing his or her own opinion. 4. Schedule the Veteran for examination(s) to determine the nature and etiology of any disability/ies manifested by difficulty breathing and/or extreme tiredness. This examination should be conducted by a clinician other than the clinician who provided the September 2016 VA medical nexus opinions, if possible. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater disability) that difficulty breathing and/or extreme tiredness, if present, cause functional impairment. If so, then the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater disability) that the functional impairment caused by difficulty breathing and/or extreme tiredness, if present, is related to active service. The clinician also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater disability) that a service-connected disability causes the Veteran's difficulty breathing and/or extreme tiredness. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for difficulty breathing and/or extreme tiredness, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon September 2016 VA medical nexus opinions in preparing his or her own opinion. 5. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.