Citation Nr: 22013207 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-02 940 DATE: March 9, 2022 ORDER Entitlement to service connection for right upper extremity radiculopathy is denied. REMANDED Entitlement to service connection for left upper extremity radiculopathy is remanded. Entitlement to service connection for a cervical spine condition is remanded. FINDING OF FACT The evidence does not support that the Veteran has right upper extremity radiculopathy. CONCLUSION OF LAW The criteria for service connection for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1981 to December 1984 and from July 1985 to July 2002. The Veteran testified at a September 2020 hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Entitlement to service connection for right upper extremity radiculopathy 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. 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Review of the record does not indicate the Veteran has any peripheral nerve disabilities associated with his right arm. To the contrary, electromyographies (EMGs) from October 2016, November 2016 and July 2018 reveal a normal right arm. The remainder of the post-service medical record refers solely to the left arm. In November 2016, a private physician noted there was no electrophysiological evidence of a bilateral C5-C8 radiculopathy, right carpal tunnel syndrome, bilateral ulnar neuropathy, bilateral tardy ulnar palsy, or a diffuse sensorimotor peripheral neuropathy in the right upper extremity. Additionally, in November 2018, a VA examiner found there was no pathology to make a diagnosis of right upper extremity radiculopathy. The Board is sympathetic to the Veteran's complaints of ongoing numbness and tingling in his right arm. While a "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect", here the evidence does not reflect any diagnosis or treatment for a peripheral nerve disability of the right arm. Entitlement to service connection is not warranted. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) ("Without a current disability, of course, there can be no service connection and, thus, no disability compensation"). Lacking a current diagnosis for a right arm disability, the Veteran does not meet the cornerstone element of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, an assessment of the remaining elements is not necessary, and service connection for right upper extremity radiculopathy is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for left upper extremity radiculopathy is remanded. At the outset, the Board acknowledges the November 2016 physician found no electrophysiological evidence of a bilateral radiculopathy. However, the Veteran was diagnosed with cervical radiculopathy in April 2017, and an August 2017 VA examiner found the Veteran had left arm radiculopathy of the C5-C6 nerve groups. In November 2018, a VA examiner found no pathology to make a diagnosis of left upper extremity radiculopathy but confirmed an earlier diagnosis of carpal tunnel syndrome. Therefore, it remains unclear whether the Veteran has a diagnosis of left arm radiculopathy. Although the Veteran is already service connected for carpal tunnel syndrome, the evidence suggests a separate left arm disability. Thus, on remand a VA examiner should clarify the diagnosis. The August 2017 VA examiner also found the Veteran's right shoulder disability could not cause his cervical spine conditions including radiculopathy. The Board finds the opinions inadequate as the examiner failed to adequately address aggravation. Once the VA undertakes providing a veteran with an examination, it has a duty to ensure it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Therefore, the question of "aggravation" is pertinent in order for the Board to properly adjudicate the Veteran's claim. Additionally, the Board notes that if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012); see Bowling v. Principi, 15 Vet. App. 1, 12 (2001). 2. Entitlement to service connection for a cervical spine condition is remanded. The August 2017 VA examiner diagnosed the Veteran with spinal stenosis, cervical spondylosis, and cervical radiculopathy. The Board finds the August 2017 VA medical opinion as to the nature and etiology of the Veteran's cervical spine conditions to be inadequate. The examiner based her negative nexus opinion solely on the lack of documented treatment during and after service. The examiner did not adequately address the lay evidence of record including the credible statements of the Veteran and his ex-wife. Therefore, while the Board regrets the additional delay, a remand is necessary to obtain another opinion regarding the nature and etiology of the Veteran's cervical spine conditions. Additionally, as noted above, the examiner failed to adequately address aggravation as it relates to any of the Veteran's cervical spine conditions. Thus, on remand addendum opinions as to direct and secondary service connection for a cervical spine condition are required. The matters are REMANDED for the following action: 1. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, that have not already been associated with the claims file that are relevant to the issues on appeal. The AOJ should then attempt to obtain those records if the appellant provides the appropriate authorization. 2. Forward the claims folder to an appropriate clinician for review and for addendum opinions addressing the nature and etiology of the Veteran's cervical spine conditions and left arm radiculopathy. If the examiner determines that another examination is necessary, one should be scheduled. The examiner is advised that his or her inquiry is not limited to the definition of aggravation as a permanent worsening of the condition beyond its natural progression. Rather, the examiner should consider whether there has been "any incremental increase in disability or any additional impairment of earning capacity in the nonservice-connected disabilities resulting from the service-connected conditions regardless of its permanence." The examiner is advised that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the Veteran's reports of symptomatology, the examiner should provide a fully reasoned explanation. NECK a. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's cervical spine conditions are related to his active-duty military service to include the 1994 hockey incident and December 1995 motor vehicle accident and explain why or why not. b. The examiner is asked to provide an opinion as to whether it is at least as likely as not that the Veteran's cervical spine conditions were aggravated by the Veteran's service-connected right shoulder disability and explain why or why not. LEFT ARM c. First, the examiner should identify all peripheral nerve disabilities of the left upper extremity diagnosed during the appeal period. d. If the examiner determines that no peripheral nerve disabilities of the left arm are present then the examiner must explain why the prior diagnoses are in error. e. The examiner is asked to provide an opinion as to whether it is at least as likely as not that any diagnosed peripheral nerve disabilities of the left upper extremity, excluding carpal tunnel syndrome (CTS), were aggravated by the Veteran's service-connected right shoulder disability and explain why or why not. f. IF AND ONLY IF the examiner finds the Veteran's cervical spine condition is related to his active-duty service and/or his service-connected right shoulder disability, the examiner is asked to provide an opinion as to whether it is at least as likely as not that the Veteran's peripheral nerve disabilities of the left upper extremity, excluding CTS, are caused or aggravated by the Veteran's cervical spine condition and explain why or why not. 3. The RO should ensure that the examinations and opinions are in compliance with the terms of this remand. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman Associate 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.