Citation Nr: 22019094 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 15-35 665 DATE: March 31, 2022 ORDER Entitlement to service connection for a right shoulder condition is granted. REMANDED Entitlement to service connection for right upper extremity radiculopathy, to include as secondary to service-connected cervical spine disability is remanded. Entitlement to service connection for left upper extremity radiculopathy, to include as secondary to service-connected cervical spine disability is remanded. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected lumbar spine disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's right shoulder condition began after an injury sustained in service during a December 2006 incident involving an explosively formed penetrator (EFP) blast. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a right shoulder condition have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2006 to August 2008. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matters are before the Board. The Veteran is seeking service connections for a right shoulder condition. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When 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 claimant. 38 U.S.C. § 5107(b) (2012). The evidence of record shows the Veteran's right shoulder condition, including right shoulder tenderness, pain, mild bursitis, impingement, and acromioclavicular arthrosis. See also December 2013 Surgery Note (the Veteran had a right shoulder surgery). Thus, the Veteran has a right shoulder condition for service connection purposes. As to the in-service incurrence of the right shoulder condition, the Veteran's service treatment record shows that his bilateral shoulders were hit when his vehicle was lifted by an EFP blast. See June 2007 Statement of Medical Examination and Duty Status Report. During the February 2021 Board hearing, the Veteran testified that he has injured his right shoulder during an accident in Iraq when he was hit by an EFP while driving a truck. He stated that there was a direct impact on the right side of the vehicle that he was driving, and injuries to the shoulders occurred when the vehicle hit the ground after being lifted up in the air. The Veteran testified that he had no shoulder pain before the injury and his right shoulder has been bothering him since the in-service injury. He also provided that he is currently service-connected for back and neck conditions due to the injuries sustained during the same in-service incident. The Board finds the Veteran's testimony regarding the onset and continuing symptoms of his right shoulder condition to be competent and credible evidence with high probative weight. See also November 2020 Video Visit Note (the Veteran reported secondary pain sites of both shoulders after the December 2006 in-service incident). The Board notes that the Veteran is also currently service-connected for a left shoulder condition from the same December 2006 incident . Based on the above, the Board resolves reasonable doubt in the Veteran's favor and finds that his right shoulder condition began after an injury sustained in service during a December 2006 incident involving an EFP blast. Consequently, the Veteran's entitlement to service connection for a right shoulder condition is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS FOR REMAND The Veteran is also seeking service connections for bilateral upper extremity radiculopathy, and left lower extremity radiculopathy. The Veteran contends that his bilateral upper extremity radiculopathy is due to his service-connected cervical disability, and his left lower extremity radiculopathy is due to his service-connected lumbar spine disability. However, the Board finds that additional development is necessary prior to final adjudication. In June 2014, a VA examiner provided a negative etiology opinion for the Veteran's service connection claim for bilateral upper extremity radiculopathy. The Board notes that the June 2014 VA examiner rendered the opinion after reviewing the Veteran's record without conducting an in-person examination. The examiner stated that no evidence of bilateral upper extremity peripheral neuropathy was found during a September 2013 VA examination. In this regard, the Board notes that the September 2013 VA examination was provided for neck conditions, and the examiner indicated that the Veteran did not have signs or symptoms of radiculopathy due to his cervical condition. However, during the February 2021 Board hearing, the Veteran testified that he is being prescribed for gabapentin for radiculopathy and his numbness symptoms in hands started around 2010. He also testified that his arms are also numb, and he does not feel scratches at times. In light of the Veteran's competent and credible testimony, the Board finds that a VA examination to clarify the Veteran's current bilateral upper extremity diagnosis and its etiology is necessary in order to make a fully informed decision on the matter. As to the Veteran's service connection claim for left lower extremity radiculopathy, the Board notes that the Veteran was not afforded a separate VA examination for the claimed condition. On January 2021 VA examination for back conditions, the examiner provided that there was no objective evidence of right or left lumbar radiculopathy during the examination, although the Veteran is currently service-connected for right lower extremity radiculopathy. As to his current symptoms, the Veteran testified during the February 2021 hearing that his legs are numb when he is standing or sitting, and he cannot feel them sometimes. The Veteran's medical records also confirm that he is currently prescribed gabapentin for neuropathic pain. See e.g., December 2020 Active Medication List. Based on above, the Board finds that a VA examination should be provided to the Veteran to determine the nature and etiology of his current left lower extremity radiculopathy prior to final adjudication of the matter. Accordingly, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran's bilateral upper extremity radiculopathy and left lower extremity radiculopathy. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. The examiner must provide a complete written rationale for any opinion offered. The examiner is asked to provide whether the Veteran has current diagnosis of radiculopathy affecting his bilateral upper extremity and left lower extremity. The examiner must opine whether the Veteran's bilateral upper extremity radiculopathy is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, or had its onset in service. The examiner must opine whether the Veteran's bilateral upper extremity radiculopathy is at least as likely as not (50 percent or greater probability) proximately due to or aggravated beyond its natural progression by his service-connected cervical spine disability. The examiner must opine whether the Veteran's left lower extremity radiculopathy is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, or had its onset in service. The examiner must opine whether the Veteran's left lower extremity is at least as likely as not (50 percent or greater probability) proximately due to or aggravated beyond its natural progression by his service-connected lumbar spine disability. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. 2. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.