Citation Nr: 22010408 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 17-11 634 DATE: February 23, 2022 ORDER Entitlement to service connection for a left upper extremity neurological disorder, including weakness and radiculopathy, is denied. Entitlement to service connection for right upper extremity neurological disorder, including weakness and radiculopathy, is denied. REMANDED Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for right knee instability is remanded. Entitlement to service connection for hysterectomy with ovary and cyst removal is remanded. FINDING OF FACT The Veteran does not have right or left upper extremity radiculopathy or any other upper extremity neurological disorder or symptoms that are related to service or that have been caused or aggravated by a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a left upper extremity neurological disorder, including weakness and radiculopathy, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. 2. The criteria for service connection for a right upper extremity neurological disorder, including weakness and radiculopathy, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from January 1990 to August 1997. This case comes to the Board of Veterans' Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office. The Veteran requested a Board hearing via video conference on her March 2017 Form 9 substantive appeal. Although the hearing was rescheduled several times in an attempt to accommodate the Veteran, she did not appear for the January 2022 Board hearing, and her request is therefore considered withdrawn. Right and Left Upper Extremity Radiculopathy and Weakness The Veteran has requested service connection for bilateral upper extremity disorders which are secondary to her cervical spine impingement. In June 2014, the Veteran wrote that since her April 2007 severe car accident, she has had nerve problems in her extremities, which causes problems holding a cell phone, opening a sliding door, or pulling up a towel. She wrote that there were a couple of incidents when she was trying to use her arms over her head and lost strength in her arm. 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, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation of a disability by a service-connected disability. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this case, the Board finds that there is no evidence that the Veteran has an upper extremity neurological disorder such as radiculopathy. The Veteran has never been diagnosed with a disorder affecting the strength or movement of the right or left arms at any time during the pendency of the claim, or at any time prior to the filing of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of such a disability, the claims cannot be granted. The presence of a current disability is the cornerstone of any service connection claim. Service connection is not warranted when there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Disability "refers to the functional impairment of earning capacity." See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment, and disability ratings are based on the average impairment of work capacity. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. A disability for VA compensation purposes refers to an impairment of earning capacity due to a disease or injury, rather than to a disease or injury itself. See Allen v. Brown, 7 Vet. App. 439 (1995). In this case, there is no evidence that the Veteran has a diagnosis of right or left arm radiculopathy, or any other neurological disorder in her upper extremities that manifests with weakness or any other functional impairment. The Veteran has reported that she had severe neck pain after her 2007 motor vehicle accident, and she has reported that this pain sometimes radiated into her right arm, and that she believed she also had weakness in her arms related to that accident. VA treatment records show that in March and June 2009, the Veteran did report that she had right neck pain radiating down her arm, but there was no indication that she had any right arm neurological disorder at that time, such as peripheral neuropathy or radiculopathy. At the March 2013 VA examination, the Veteran reported only weakness symptoms in her lower extremities, and not her upper extremities. Strength testing was normal in the elbows, wrists, and grip, and reflexes in the upper extremities were normal. Sensory testing was also normal. The examiner found that the Veteran's nerves in the upper extremities were all normal. The entirety of the probative and persuasive medical evidence therefore indicates that the Veteran does not have a current diagnosis related to a right or left arm neurological disorder. There is no other evidence indicating that the Veteran has a right or left arm neurological disorder for which service connection could be granted. As there is no current disability, service connection is not warranted. See Brammer, 3 Vet. App. 223. The Board has also considered the holding in Saunders, which stated that pain alone can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment. See Saunders, 886 F.3d 1356. The Veteran reported that after her car accident in 2007, she had some difficulty using her arms, and in 2009, she reported pain radiating down her arms. While these do indicate symptoms which caused functional impairment, these symptoms had been found to be completely resolved by the time of the March 2013 VA examination, at which she had full strength, reflexes, and sensation in her right and left arms. There is also no persuasive or probative evidence which indicates that these symptoms are related to her service, and she has not asserted that they began in service or that they are related to any event or injury in service. The Veteran has only asserted that her upper extremity symptoms are secondary to a neck/cervical spine disorder. Even if the Veteran were to be diagnosed with an upper extremity disorder, such as radiculopathy, the Board notes that service connection cannot be granted on a secondary basis to a cervical spine disability, because the Veteran is not service connected for a cervical spine disability. Entitlement to service connection for cervical spine degenerative joint disease was denied in a June 2014 rating decision, and the Veteran did not appeal this decision. The threshold legal requirement for establishing secondary service connection is therefore not met; i.e., it is not shown that the primary disability (a cervical spine disorder) alleged to have caused or aggravated the disability for which secondary service connection is sought is service-connected. Accordingly, the claim of entitlement to service connection for an upper extremity disorder as secondary to a cervical spine disorder must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In sum, the Board finds that the Veteran does not have a current diagnosis of any right or left upper extremity neurological disorder, including radiculopathy and peripheral neuropathy. While she has reported having right arm pain and bilateral arm weakness in the past, the entirety of the persuasive, probative evidence indicates that these symptoms are not related to any event or injury in service, nor are they caused or aggravated by a service-connected disability. The claims are therefore denied. The Board concludes that, as the evidence persuasively favors against finding that the Veteran has an upper extremity disorder which is related to service or to a service-connected disability, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F. 4th 776 (2021). REASONS FOR REMAND Right Knee Instability In a November 2011 rating decision, the Veteran was awarded service connection for right knee degenerative joint disease, and she was awarded a 10 percent rating. In December 2011, the Veteran wrote that she was also seeking service connection for right knee instability. The Board notes that lay evidence can be probative evidence in determining whether a veteran has instability in the knees. English v. Wilkie, 30 Vet. App. 347 (2018). The Veteran attended a VA examination in March 2013, where joint stability testing was normal, and no instability was found. The Veteran was scheduled for an additional VA examination in July 2017, but did not appear for the examination. While the Veteran has not provided good cause for why she was unable to appear for that examination, she has elsewhere indicated that it is difficult for her to make it to appointments because of her disabilities. The Board will afford the Veteran another opportunity to attend a VA examination to assess the current severity of her right knee disability, as it has been almost 9 years since her last VA examination, and she has asserted that she experiences instability in her right knee. Right and Left Lower Extremity Radiculopathy The Veteran has also asserted that she has feelings of weakness in her legs which she believes are secondary to her service-connected lumbar spine disorder. At the March 2013 VA examination, she was found to have normal strength and reflexes in her lower extremities. The examiner found no current radiculopathy or neuropathy in the lower extremities. The Veteran's VA treatment records do, however, show a diagnosis of lumbar radiculopathy, and furthermore, since almost 9 years have passed since that last examination, the Board finds that the Veteran should be afforded another opportunity to attend an examination to determine whether she has any current radiculopathy associated with her service-connected lumbar spine disorder. Hysterectomy with Ovary and Cyst Removal The Veteran has also requested service connection for hysterectomy with cysts which she claims was caused by exposure to carcinogens during military service. The Veteran's claim was denied by the Regional Office on the basis that her hysterectomy with ovary and cyst removal occurred in 2005, which was after her active duty service. The Veteran's private treatment records show that in April 2005, she was being treated for chronic pelvic pain and menometrorrhagia. She underwent a total abdominal hysterectomy. In May 2005, she was found to have a single focus of a borderline malignant tumor in the right ovary. It was recommended that she have her ovaries removed, and her ovaries were removed later that month. They were found to have fibrovascular adhesions and inflammation. While these surgeries did occur after the Veteran's separate from active duty service, the Board has reviewed her service treatment records, which show that in February 1997, she had an ultrasound due to an enlarged uterus on a routine examination. She reported heavy periods with sporadic bleeding for the next few days. She was found to have a retroflexed uterus suggestive of intramural fibroid. There was also a thickened endometrial stripe of unclear etiology. She was diagnosed with uterine fibroid and probable hyperplasia. The evidence therefore does indicate that she had a uterus disorder while she was still on active duty service, and this disorder may have developed into the condition that led to her needing a hysterectomy, which occurred less than 8 years after her separation from active duty service. The Veteran has not yet been afforded a VA examination to address the etiology of her hysterectomy and ovary cysts, and this issue is therefore remanded so that such an examination can be held. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that it is also unclear whether all the private records associated with the Veteran's 2005 surgeries have been obtained. The Veteran should be asked to provide any additional, relevant private records. The matters are REMANDED for the following action: 1. Send to the Veteran and her representative a letter requesting that the appellant provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain the Veteran's private gynecological treatment, including all treatment preceding her 2005 hysterectomy and ovary removal surgery. They should be informed that they may also submit these records themselves. If they provide completed release forms authorizing VA to obtain these treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. 2. Obtain all VA treatment records since February 2017. 3. Schedule the Veteran for an examination to evaluate her right knee disability and determine whether she has any current right knee instability. The examiner must be provided access to the Veteran's entire claims file and must specify in the report that the claims file has been reviewed. After evaluating the current severity of the Veteran's right knee degenerative joint disease, please specifically address whether there is any laxity or instability in the right knee, including consideration of the Veteran's reports of feeling instability in her right knee. 4. Schedule the Veteran for an examination to evaluate her claimed weakness and radiculopathy of the lower extremities. The examiner must be provided access to the Veteran's entire claims file and must specify in the report that the claims file has been reviewed. a) After evaluating the current severity of the Veteran's lumbar degenerative changes, the examiner should then specifically evaluate whether the Veteran has any radiculopathy or neuropathy in her lower extremities. b) For all neurological symptoms found in the lower extremities, the examiner should discuss whether these are symptoms of the Veteran's lumbar degenerative disorder, or are caused or aggravated by the lumbar disorder. If they are not found to be related to the Veteran's lumbar spine disorder, the examiner must discuss their likely etiology. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must explain why. 5. Schedule the Veteran for an examination to address the nature and etiology of her hysterectomy, ovary removal surgery, and ovary cysts/adhesions. The examination may be held via telehealth during social distancing restrictions and an opinion can be provided based on other medical evidence of record. For all of the Veteran's gynecological diagnoses, discuss whether it is at least as likely as not that the disorder is related to any event or injury during active service, including whether it is a disorder that began in service or that is related to her treatment in 1997 for retroflexed uterus with uterine fibroid, thickened endometrial stripe, and probable hyperplasia. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.