Citation Nr: 22017309 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 05-02 477 DATE: March 24, 2022 ORDER Service connection for cervical spine bilateral radiculopathy, to include as secondary to a service-connected disability, is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to a service-connected disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 2, 2015, is remanded. FINDING OF FACT The Veteran's cervical spine bilateral radiculopathy was not due to his active service or caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for cervical spine bilateral radiculopathy are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1977 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2006 and August 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the period on appeal begins in June 2006, the date of the Veteran's original claim. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. First, the record contains conflicting medical evidence as to whether the Veteran has a current disability of cervical spine bilateral radiculopathy. In a July 2004 medical record, the Veteran's private physician, Dr. F.L., diagnosed the Veteran with bilateral cervical radiculopathy. See Aug. 2004 Medical Treatment Record Non-Government Facility, p. 5. However, the Veteran underwent VA cervical spine examinations in June 2014, March 2016, and August 2021 in which the examiners did not diagnose him with cervical radiculopathy. See Jun. 2014 C&P Examination, p. 47; Mar. 2016 C&P Examination, p. 6; Aug. 2021 C&P Examination, p. 8. The Board notes that if the Veteran had a current diagnosis of the condition at any time during the appeal period, service connection may still be granted if the appropriate legal criteria are met. While multiple VA examinations of record indicate that the Veteran did not have a diagnosis of cervical radiculopathy, a significant amount of time elapsed between the beginning of appeal period and the examination declining to make such a diagnosis. Further, the diagnosis by Dr. F.L. discussed above took place within two years of the beginning of the appeal period. In resolving all doubt in favor of the Veteran, the Board finds that it is at least likely as not that the Veteran had a current diagnosis of bilateral cervical radiculopathy during the appeal period. Accordingly, the first elements of direct and secondary service connection are met. As to the second element of service connection, an in-service event, the Veteran's service treatment records indicate that that he experienced a motor vehicle accident during active duty in June 1978. See Apr. 2015 STR Medical, p. 31. Records also indicate that he injured himself in April 1978 and was diagnosed with mild muscle strain. Id. at 33. Accordingly, the Board finds that the second element of direct service connection is met. As to the third element of direct service connection, nexus, the Board finds that the evidence persuasively weighs against the Veteran's claim. In the June 2014 VA examination, the examiner stated that it was unlikely that bilateral cervical radiculopathy would have been caused by either the Veteran's April or June 1978 injuries as outlined above. See Jun. 2014 C&P Examination, p. 50. The examiner further stated that cervical radiculopathy is more likely related to discogenic disease, a non-service connection condition. Id. Unfortunately, the claims file does not contain any further medical evidence linking the Veteran's in-service injuries to any current bilateral cervical radiculopathy. Accordingly, the Board finds that the third element of Shedden is not met and that service connection on a direct basis is not warranted. The Board will now address entitlement to service connection on a secondary basis. The Board notes that the Veteran has the following service-connection conditions during the period on appeal: unspecified depressive disorder, tension headaches, status post right sternoclavicular joint separation (degenerative joint disease), cervical myositis, left shoulder degenerative joint disease, bilateral leg varicose veins, bilateral knee degenerative arthritis, traumatic brain injury, pulmonary tuberculosis, and anemia. Accordingly, the second element of secondary service connection is met. Next, the Board finds that the evidence persuasively weighs against a finding that any bilateral cervical radiculopathy is related to the Veteran's service-connected disabilities. In September 2021, the VA examiner opined that it was less likely than not that any bilateral cervical radiculopathy was caused or aggravated by the Veteran's service-connected disabilities. The examiner stated that the conditions are completely unrelated by anatomy and pathophysiology to each other. The examiner further stated that the past diagnosis of bilateral cervical radiculopathy had resolved and that the condition was due to non-service connected cervical spine degenerative disc disease. The examiner further noted that the most common etiology for the development of cervical radiculopathy is cervical spine degenerative disc disease. The Board assigns significant probative value to the September 2021 VA opinion as the examiner provided rationale and a medical explanation for the diagnosis of bilateral cervical radiculopathy. The claims file lacks any medical evidence supporting a connection between the condition and any of the Veteran's service-connected disabilities. Accordingly, the Board finds that the evidence persuasively weighs against a finding of secondary service connection for bilateral cervical radiculopathy. REASONS FOR REMAND Regarding the Veteran's service connection claim for hypertension, in August 2021, the Veteran underwent a VA hypertension examination and was diagnosed with hypertension. However, the examiner opined that it was less likely than not that the condition was caused or aggravated by his service-connected conditions. The examiner simply stated that the medical literature did not support such a connection between the claimed and service-connected disabilities. The Board finds the opinion to be conclusory and therefore inadequate for adjudication purposes. Accordingly, the matter must be remanded to afford the Veteran a new VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran's claim of entitlement to a TDIU is inextricably intertwined with the issues addressed above and will be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, obtain all outstanding VA and private medical records that pertain to the Veteran's hypertension. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. Any indicated evaluations, studies, or tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion and the examination report should include a discussion of the Veteran's documented medical history and assertions. The examiner must address the following: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran's hypertension was caused by a service-connected disability? Why or why not. (b.) Is it at least as likely as not (50 percent or greater) that the Veteran's hypertension was aggravated by a service-connected disability? Why or why not? If aggravation is found, the examiner should identify the baseline level of severity of the Veteran's hypertension before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the Veteran's hypertension. 38 C.F.R. § 3.310. (c.) If the Veteran's hypertension is determined to have not been caused or aggravated by a service-connected disability, identify the cause for the disability that is considered to be more likely, and explain why. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.