Citation Nr: 22046795 Decision Date: 08/17/22 Archive Date: 08/17/22 DOCKET NO. 18-54 182 DATE: August 17, 2022 ORDER Entitlement to service connection for right upper extremity radiculopathy is denied. Entitlement to service connection for left upper extremity radiculopathy is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (claimed as neurological symptoms) to include as secondary to the Veteran's service-connected disabilities is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that right upper extremity radiculopathy began during active service, or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that left upper extremity radiculopathy began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right upper extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left upper extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to December 1972.The Veteran's service in the Republic of Vietnam is documented on his DD214. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. These matters were remanded in January 2022 for further development. Upon review the Board finds that with respect to the Veteran's claims for entitlement to service connection for right upper extremity radiculopathy and left upper extremity radiculopathy the remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's claim for entitlement to service connection for obstructive sleep apnea is discussed in the remand section below. The Board notes that eight pages of additional VA treatment records were associated with the claims file after the most recent AOJ adjudication of these claims; however, waiver is not required as the records are not relevant to the issues decided herein. The Board notes that the supplemental statement of the case includes the issue of an earlier effective date for service connection for left lower extremity radiculopathy, granted in a June 14, 2022 rating decision. This is incorrect. The grant of service connection for left lower extremity radiculopathy satisfies the issue on appeal and the effective date is a downstream issue, which may be appealed consistent with the AMA framework. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Legal Criteria Generally, to establish a right to compensation for a present 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). 1. Entitlement to service connection for right upper extremity radiculopathy. 2. Entitlement to service connection for left upper extremity radiculopathy. The Veteran contends that he is entitled to service connection for bilateral upper extremity radiculopathy. During his August 2021 Board hearing the Veteran testified to two theories of entitlement for his bilateral upper extremity radiculopathy. First, the Veteran alleged that his bilateral upper extremity radiculopathy is due to an in-service injury after falling on the wing of a plane in service. Secondly the Veteran alleged entitlement to service connection for bilateral upper extremity radiculopathy with symptoms of numbness and tingling due to his exposure to herbicide agents in service. With respect to the Veteran's theory of entitlement due to herbicide agent exposure, based on the Veteran's documented service in the Republic of Vietnam, he is presumed to have been exposed to herbicide agents in service. 38 C.F.R. § 3.307 (a)(6)(iii). A Veteran exposed to herbicide agents may also be entitled to presumptive service connection for certain enumerated diseases. However, the record does not establish that the Veteran has been diagnosed with early onset peripheral neuropathy or any of the other enumerated diseases entitled to presumptive service connection based herbicide agent exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). Entitlement to service connection based on herbicide agent exposure may still be warranted on a direct basis if the evidence establishes a nexus or etiological relationship between the Veteran's herbicide agent exposure and his bilateral upper extremity radiculopathy. Here, in the Veteran's June 2022 VA examination the examiner opined that the Veteran's bilateral radiculopathy is not related to herbicide agent exposure. The examiner noted that the Veteran is not diagnosed with neuropathy and there is not evidence of radiculopathy for decades after service. The examiner asserts that the Veteran's bilateral upper extremity radiculopathy is related to the Veteran's cervical degenerative arthritis and notes that the mere passage of decades of time can result in cervical spondylosis in an aging population. The Board affords probative weight to this opinion as it is consistent with and supported by the evidence of record. Moreover, the record contains no opinion that the Veteran's radiculopathy is related to herbicide agent exposure in service, and the Veteran lacks the requisite medical knowledge to opine that his symptoms are related to herbicide agent exposure. The record does not establish entitlement to service connection for bilateral upper extremity radiculopathy (also claimed as neuropathy) due to herbicide agent exposure. With respect to the Veteran's contentions that he is entitled to service connection for bilateral upper extremity radiculopathy due to his in-service fall; the record establishes a current diagnosis of bilateral upper extremity radiculopathy, and the Veteran is competent to report falling on the wing of a plane in service. Therefore, the question before the Board is whether the Veteran's bilateral upper extremity radiculopathy is related to his in-service injury. In the June 2022 VA examination the examiner concluded that the Veteran has a current disability of cervical radiculopathy due to cervical degenerative arthritis (for which the Veteran is not service connected). The examiner opined that the Veteran's bilateral radiculopathy is less likely than not related to military service because there is no evidence of complaints in service, the Veteran's symptoms are radicular in nature, and the radiculopathy is due to the cervical degenerative arthritis. Upon review the Board affords probative weight to this opinion as it is consistent with and supported by the record. The Veteran's service treatment records do not note any complaints of upper extremity pain in service. Similarly, the Veteran's routine class II flight physicals in service do not show any complaint of upper extremity pain, numbness, tingling or radiculopathy. Post service, the record does not contain a diagnosis of or treatment for upper extremity radiculopathy until the September 2022 VA examination. In fact, private treatment records from September 2017 note complaints of lower extremity radicular symptoms but no new or advancing numbness or weakness; no upper radicular symptoms were noted. The Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion on these claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of the spine, to include as due to remote trauma and/or aging. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, there are no records prior to 2022 suggesting a diagnosis of bilateral upper extremity radiculopathy. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). There is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran has radiculopathy causally related to, or aggravated by, his service, and his statements asserting continuity of symptoms since service are not credible. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Entitlement to service connect for right upper extremity radiculopathy is denied. Entitlement to service connection for left upper extremity radiculopathy is denied. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (claimed as neurological symptoms) to include as secondary to the Veteran's service-connected disabilities is remanded. Remand is warranted for an addendum opinion regarding the Veteran's sleep apnea. This matter was remanded in January 2022 for an opinion regarding the Veteran's sleep apnea to include whether it was incurred in or caused by military service to include herbicide agent exposure and whether it was secondary to the Veteran's service connection lumbar spine disability. The examiner opined that the Veteran's sleep apnea was not incurred in or caused by military service and was not caused by the Veteran's lumbar spine disability. However, the examiner did not opine whether the Veteran's sleep apnea was aggravated beyond its natural progression by the Veteran's service-connected lumbar spine disability. Remand is warranted for an addendum opinion. The matters are REMANDED for the following action: (Continued on the next page) 1. Obtain all outstanding VA treatment records. 2. After all outstanding VA treatment records have been associated with the claims file, obtain an addendum opinion regarding the Veteran's obstructive sleep apnea. The examiner is asked to opine whether the Veteran's obstructive sleep apnea was aggravated beyond its natural progression by the Veteran's service-connected lumbar spine disability. The term aggravated shall mean any incremental increase in severity regardless of its permanence. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.