Citation Nr: 22044447 Decision Date: 08/04/22 Archive Date: 08/04/22 DOCKET NO. 04-16 936 DATE: August 4, 2022 ORDER Entitlement to service connection for a right upper extremity neurological disability is granted. REMANDED Entitlement to service connection for a left upper extremity neurological disability is remanded. FINDING OF FACT The right upper extremity neurological disability is due to the Veteran's service-connected neck disorder. CONCLUSION OF LAW The criteria for service connection for a right upper extremity neurological disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the United States Army from July 1989 to May 2001 to include service in Southwest Asia during the Persian Gulf War. Most recently, the Board of Veterans' Appeal (Board) in January 2022, among other things, remanded the above claims. The Service Connection Claim The Veteran claims that he is entitled to service connection for a right upper extremity neurological disorder because, in substance, it is due to his service-connected neck disorder. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). As to a current disability, the February 2022 VA examiner opined the Veteran had cervical spine radiculopathy in the right upper extremity. On the other hand, the Veteran's earlier VA examiners did not diagnose him with a right upper extremity neurological disorder. See, e.g., VA examinations dated in March 2015, April 2015, May 1997, November 2019, and July 2020. Tellingly, the Board in January 2022 specifically remanded the claim to provide the Veteran with a new VA examination to obtain a medical opinion as to whether he had a current right upper extremity neurological disorder. Moreover, at the post-remand examination dated in February 2022, the examiner specifically opined the Veteran had a diagnosis of cervical spine radiculopathy in the right upper extremity after a review of the record, including the earlier VA examinations, and a contemporaneous examination of the Veteran. Given the fact the February 2022 VA examiner, unlike all the earlier VA examiners, provided the diagnosis after a review of all the earlier VA examinations as well as a contemporaneous examination, the Board finds the February 2022 VA examiner's diagnosis of radiculopathy is the most probative evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position). The Board also finds that this finding is further supported by the fact that the diagnosis of radiculopathy is supported by a contemporaneous VA treatment record. See Owens, supra. Given this record the Board finds the evidence, both positive and negative, as to whether the Veteran has a right upper extremity neurological disorder diagnosed as radiculopathy is at least approximately in balance. See Owens, supra. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he does. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch, supra. Next, the record shows the Veteran has been service-connected for a neck disorder since 2001. See rating decision dated in November 2002. Therefore, the Board finds that the appeal turns on whether the record contains competent and credible evidence that shows that the Veteran's right upper extremity neurological disorder diagnosed as radiculopathy is caused or aggravated by his service-connected neck disorder. See 38 C.F.R. § 3.310; Wallin, supra. In this regard, the March 2022 VA examiner opined, in substance, that the right upper cervical spine radiculopathy diagnosed as radiculopathy is due to his service-connected neck disorder. Tellingly, the Board finds that this medical opinion is both competent and credible because it was supported by examination/clinical testing and medical reasoning as well as the most probative evidence of record because it is not contradicted by any other medical evidence of record. See Owens, supra; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Under such circumstances, and with granting the Veteran the benefit of any doubt in this matter, the Board concludes that the most probative evidence of record shows that the appellant's right upper extremity neurological disorder diagnosed as radiculopathy is secondary to service-connected neck disorder and service connection is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch, supra. REASONS FOR REMAND Entitlement to service connection for a left upper extremity neurological disorder is remanded. As to the claim of service connection for a left upper extremity neurological disorder the Veteran claims, in substance, that he has a disability manifested by pain ans spasms that is either due to his military service and/or his already service-connected neck disorder. In this regard, the record shows that the Board in January 2022 specifically remanded the claim to provide the Veteran with a new VA examination to obtain a medical opinion as to whether he had a current diagnosis and. if so, its' etiology. Moreover, the post-Remand records shows that the regional office (RO) provided the Veteran with a VA examination in February 2022 and that examiner did not diagnose him with a current left upper extremity neurological disorder. However, the Board does not find that examination adequate as it pertains to the Veteran's claim of a left upper extremity neurological disorder. See Owens, supra. The Board has reached this conclusion because the examiner did not opine as to whether the adverse symptomatology seen at that examination and/or seen in the record resulted in functional impairment that affects earning capacity as required by the Court in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding, in part, that a claimed disability that results in functional impairment that affects earning capacity is a disability.). The Board has also reached this conclusion because the examiner did not opine, as to this Persian Gulf War Veteran, whether the adverse symptomatology seen at that examination and/or seen in the record was (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or (iii) a diagnosable chronic multisymptom illness with a partially explained etiology as required by the Court in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) (held, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases like the current appeal in which Veterans have served in the Persian Gulf since August 2, 1990). The Board also finds it significant that answers to the above questions are also not found in any of the Veteran's earlier VA examinations. See, e.g., VA examinations dated in March 2015, April 2015, May 1997, November 2019, and July 2020. Therefore, the Board finds that a Remand is required to provide the Veteran with a new VA examination to obtain answers to the above questions. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). As to the Veteran's claim that his left upper extremity neurological disorder is due to his already service-connected neck disorder, when obtaining the medical opinions and again adjudicating the claim, the examiner and the RO should be mindful of the fact that the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) recently redefined the definition of aggravation to know include temporary flare-ups. While this issue is in remand status, any outstanding VA and private treatment records should also be obtained and associate with the record. See 38 U.S.C. § 5103A(b). Lastly, the Board notes that the RO associated with the claims file additional pertinent VA treatment records since it issued the February 2022 supplemental statement of the case (SSOC). Therefore, while this issue is in Remand status the AOJ should issue the Veteran a new SSOC that, among other things, considers all the evidenced added to the record since it issued the February 2022 SSOC. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The issue is REMANDED for the following actions: 1. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 2. Obtain and associate with the claims file any outstanding VA treatment records. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address his claim of service connection for a left upper extremity neurological disorder. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide diagnoses for all left upper extremity neurological disorders. If the Veteran does not have a neurological disorder at the current examination, the examiner should (i) say so, (ii) opine if he ever had one and when it resolved, and (iii) opine as to whether the adverse symptomatology seen at the examination and/or in the record result functional impairment that affects earning capacity. b. As each diagnosed left upper extremity neurological disorder opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during service including his presumptive toxin exposure because of his service in Iraq during the Persian Gulf War. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that that any left upper extremity neurological disorder was caused by the Veteran's service-connected neck disorder. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that that any left upper extremity neurological disorder was aggravated by the Veteran's service-connected neck disorder. Note: "Aggravation" does not mean a permanent worsening. Any incremental or temporary worsening constitutes aggravation. f. If a nexus to his service or an already service connected disability cannot be established for any left upper extremity neurological disorder, provide an opinion as to whether the disability pattern is consistent with any of the following: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. g. If, after reviewing the claims file, the examiner determines' that the Veteran's disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations. In providing answers to the above questions the examiner should consider the Veteran's service treatment records. In providing answers to the above questions the examiner should consider the competent lay claims from the Veteran regarding observable adverse symptomatology. In providing answers to the above questions the examiner should not rely solely on negative evidence. In providing answers to the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions, the examiner is advised that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In providing answers to the above questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above questions he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) 4. After undertaking the above development to the extent possible, the RO should issue the Veteran a SSOC that, among other things, considers all the evidenced added to the record since it issued the February 2022 SSOC. A. Snoparsky Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.