Citation Nr: 22017233 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-15 262A DATE: March 24, 2022 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for bilateral upper extremity radiculopathy is denied. Entitlement to service connection for bilateral lower extremity radiculopathy is denied. Entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is remanded. Entitlement to service connection for bilateral upper peripheral neuropathy is remanded. Entitlement to service connection for bilateral lower peripheral neuropathy is remanded. FINDING OF FACT The Veteran's back disability, bilateral upper extremity radiculopathy, bilateral lower extremity radiculopathy, and right knee disability are not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a back disability, bilateral upper extremity radiculopathy, lower extremity radiculopathy, and a right knee disability 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 had active duty service from January 1968 to December 1969. The Veteran had a hearing in February 2018 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. In July 2018 and October 2020, the Board remanded the matters for further development. While on remand, the issue of service connection for migraine headaches was granted in a December 2021 rating decision. As this represents a full grant of the benefits sought, this claim is no longer before the Board. As remand directives have been substantially complied with concerning claims of service connection for a back disability, radiculopathy, and a right knee disability, the Board will proceed with adjudication of these claims. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, an additional remand is warranted for claims of service connection for an acquired psychiatric disorder and service connection for bilateral upper and lower extremity neuropathy before the Board can properly adjudicate these claims. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2020). To establish a right to compensation for a present disability, 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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2020). Service connection may also 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). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for bilateral upper and lower extremity radiculopathy. The Veteran contends he has a back disability that was caused by service. Service treatment records (STRs) do not show any complaints, treatment, or diagnosis for a back disability in service. However, in February 2011 written correspondence, the Veteran reported injuring his back while on active duty. In his hearing, he testified to having back pains but noted that he "did not give it much importance at the time." He also testified to having no treatment for his back except for having spinal liquid taken out once. In a July 2019 VA examination for his back, the Veteran reported having back pain since active service. The Veteran was diagnosed with degenerative arthritis of the spine; however, the examiner found that the Veteran's back disability was not related to service due to the absence of a diagnosis or treatment in service. The Board notes, however, that this opinion was deemed inadequate in the Board's prior decision. Therefore, it is not given any probative weight. In an August 2021 VA back examination, the Veteran was diagnosed with degenerative arthritis; however, the examiner found that the condition was not related to service. In doing so, the examiner noted that STRs are silent for any treatment or diagnosis for a back condition. The examiner further noted that discogenic pain is a form of low back pain caused by a traumatic event or deterioration due to age. The examiner found that the Veteran did not have a traumatic event to his back in service and that the Veteran's deterioration of his back is typical of the Veteran's age. In an addendum opinion dated December 2021, the examiner continued to find that the Veteran's back disability was not related to service. The examiner specifically noted that the Veteran suffered an injury in 1982 from which he was able to recover and continue working as usual. In addition, the examiner noted that the Veteran complained of neck pains, spasms, and numbness of his hands in 2004; and he reported complaints of joint and muscle pain involving the neck, low back, shoulder, and knee in May 2007. The examiner also noted that in September 2006, an MRI was performed where the Veteran was found to have discogenic degenerative disease, and he was treated for gout in May 2003. The examiner concluded that for the reasons noted above, he could not conclude that the Veteran's back and right knee are at least as likely as not related to service. The examiner further noted that he acknowledged the Veteran's complaints, but that the Veteran's claims are related to his work in a hardware store. Based on the above and remaining evidence, the Board finds that service connection is not warranted. Here, STRs show no complaints, treatment, or diagnosis for a back disability in service. The Board recognizes that the Veteran has competently and credibly reported injuring his back in service; however, there is no evidence that links the Veteran's current back disability to service. As noted by the August 2021 examiner, the Veteran reported injuring his back in 1982 which is confirmed by records from the Social Security Administration (SSA), specifically in a SSA disability report. In the report, the Veteran did not indicate whether his back injury was work-related, nor did he attribute the injury to service. Instead, the Veteran reported that he recovered and continued working. Moreover, the Veteran appears to attribute his back and other disabilities to his warehouse employment as he reported filing for workers compensation in 2004 after having neck pains, spasms, and numbness of his hands. While the Veteran indicated he was denied workers compensation at that time, he reported reopening his case and that he has not worked since. The report also shows that the Veteran was employed with a hardware business from May 1989 to March 2006. Similarly, in an April 2007 psychiatric evaluation for SSA disability benefits, the Veteran reported that his last employment was at a hardware store as a merchandise dispatcher. He also reported that the hardware items were very heavy, and he began to feel severe cervical pain in his back, numbness in his right hand and right foot, and "currents" in his shoulders. He stated he received physical therapy and was released with a 24 percent disability. Based on these findings, the Board concludes the most probative evidence of record shows the Veteran's back disability was caused by his post-service employment. Aside from the Veteran's reported back injury in service, there is no other evidence of record that relays the Veteran's current back disability to service. Although the Veteran is receiving SSA disability benefits for osteoarthrosis which appears to include his back disability, the Board is not bound by SSA determinations. Therefore, as the evidence does not weigh in favor of the claim, service connection is not warranted. The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Bilateal upper and lower extremity radiculopathy The Veteran has contended that he has radiculopathy that was caused by his back disability. As the Veteran is not service connected for his back disability, secondary service connection for radiculopathy cannot be granted as a matter of law. See 38 C.F.R. § 3.310 (a). Even if the Board considered direct service connection, the Board finds that service connection is still not warranted. Here, there is no evidence of a complaint, treatment, or diagnosis for radiculopathy in service. Additionally, the examiner in the Veteran's November 2021 back examination did not find any signs or symptoms of radiculopathy. Moreover, although a November 2006 emergency record shows a diagnosis of radiculopathy, this appears to be due to the Veteran's cervical disability as the Veteran complained of cervical tension and pain at that time and was diagnosed with cervical degenerative disc disease and radiculopathy. Likewise, a private February 2011 medical opinion has attributed the Veteran's radiculopathy to the loss of cervical, thoracic, and lumbar lordosis. Thus, as the Veteran's radiculopathy has not been attributed directly to service, and since the Veteran is not service-connected for a cervical or a back disability, service connection for radiculopathy cannot be granted on a direct or secondary basis. See 38 C.F.R. §§ 3.303, 3.310 (a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. Entitlement to service connection for a right knee disability. In February 2011 written correspondence, the Veteran reported injuring his knee while on active duty. Additionally, in his February 2018 hearing, he reported that he first noticed his right knee problems in service, and that he has had continuous pain in his knee since service. STRs show a complaint of knee pain in service; however, it was noted that there were no objective findings. In his July 2019 knee examination, the Veteran reported having a knee strain in service that caused him to have swelling that had to be aspirated. The examiner diagnosed the Veteran with right knee strain but found that the condition was not related to service since STRs were absent for a knee condition in service. The Board notes, however, that this opinion was found inadequate in the Board's prior decision. As a result, a new examination was obtained in August 2021 where the Veteran was diagnosed with right knee strain. The examiner found that the Veteran's knee strain was not related to service since STRs are silent for a diagnosis in service. The examiner explained that knee strain is an inflammation that occurs and typically heals after six weeks of resting and treating the knee. A severe strain or sprain can take as long as three to four months. In a December 2021 addendum opinion, the examiner continued to find a negative nexus noting that the Veteran's knee disability was caused by the Veteran's work in a hardware store, and that the Veteran was treated for gout. Based on the above, the Board finds that service connection is not warranted. Although the Veteran complained of right knee pain in service, it was noted that there were no objective findings. Post-service records show no complaints or treatment for his right knee, and the August 2021 examiner attributed the Veteran's knee strain to his work as a hardware employee and to gout. In this regard, the Board notes that SSA records show a June 2007 case analysis where the examiner noted the Veteran has gout on both knees. Moreover, in a May 2007 medical examination for SSA disability benefits, the Veteran also attributed his right knee disability to gout as he reported having swelling of his right knee due to elevated uric acid, in which he was told he had gout and was treated with Zyloprim. Based on these findings, the Board concludes the most probative evidence of record shows the Veteran's right knee disability was not caused by service. Although the Veteran has reported continuous pain in his right knee since service, there is no objective evidence of record to support this contention, and the Veteran has attributed his knee disability to a diagnosis of gout. Therefore, as the evidence persuasively weighs against the claim, service connection for a right knee disability is not warranted. The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. In an August 2021 PTSD examination, the examiner found that the Veteran did not have a mental health diagnosis; therefore, the examiner did not provide a nexus opinion. However, SSA records show a diagnosis of anxiety disorder. Additionally, SSA records also show a May 2007 medical examination where the Veteran reported having psychiatric treatment for depression and anxiety for the last four years. Moreover, VA treatment records from August 2020 show that the Veteran is being treated for depression and anxiety. The Board notes that the Veteran's psychiatric claim has been expanded to include any psychiatric disability pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, remand is warranted to consider all current psychiatric disorders of record. The Board also notes that in his hearing, the Veteran testified that he was depressed due to his knee, and he suggested his anxiety was related to other conditions. Therefore, an opinion as to secondary service connection should also be obtained. 2. Entitlement to service connection for bilateral upper and lower peripheral neuropathy is remanded. An examination has not been obtained to determine the etiology of the Veteran's peripheral neuropathy. Service treatment records do not show a diagnosis for neuropathy in service; however, the Veteran's herbicide exposure is conceded, and the Veteran is service connected for diabetes mellitus. Therefore, a medical opinion should be obtained to determine whether the Veteran has a diagnosis of peripheral neuropathy that was caused by service, to include herbicide exposure; or whether the Veteran's diagnosed neuropathy was proximately caused or aggravated by his service-connected diabetes. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his psychiatric disorder. The Veteran's claims file must be provided to the examiner for review. All appropriate testing should be performed. After review of the record and examination, the examiner must: a) First, identify all psychiatric disorders found to be present. b) If PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not (50 percent probability or greater) related to a verified stressor and explain why or why not. c) If any psychiatric disorder other than PTSD is diagnosed, including depression and anxiety, the examiner must specifically opine as to whether it is at least as likely as not (50 percent probability or greater) that such psychiatric disorder was incurred in service or is otherwise related to any injury, disease, or event incurred in service and explain why or why not. d) For any psychiatric disorder other than PTSD, opine as to whether it is at least as likely as not (50 percent probability or greater) that such psychiatric disorder was proximately caused or aggravated by any service-connected disability and explain why or why not. The examiner is asked to provide a complete rationale for any opinion offered, including discussion of the facts of this case and any medical studies or literature relied upon. If the examiner is unable to provide any requested opinion without resorting to mere speculation, the examiner must provide a reasoned explanation for such conclusion. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's neuropathy. The Veteran's claims file must be provided to the examiner for review. All appropriate testing should be performed. After review of the record and examination, the examiner must provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a diagnosis of right or left upper and/or right or left lower extremity peripheral neuropathy that was caused by service, to include herbicide exposure and explain why or why not. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a diagnosis of right or left upper and/or right or left lower extremity peripheral neuropathy that was proximately caused or aggravated by service-connected diabetes mellitus and explain why or why not. The examiner is asked to provide a complete rationale for any opinion offered, including discussion of the facts of this case and any medical studies or literature relied upon. If the examiner is unable to provide any requested opinion without resorting to mere speculation, the examiner must provide a reasoned explanation for such conclusion. 4. Readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.