Citation Nr: 24006166 Decision Date: 02/03/24 Archive Date: 02/03/24 DOCKET NO. 19-27 955 DATE: February 3, 2024 ORDER Entitlement to service connection for right upper extremity neuropathy is granted. REMANDED Entitlement to service connection for a left upper extremity neurological disability is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's currently diagnosed right upper extremity neuropathy was caused by a surgical procedure used to treat his service-connected right shoulder disability. CONCLUSION OF LAW The criteria for service connection for right upper extremity neuropathy are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from September 1979 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, June 2023, and November 2023, the Board remanded this matter for additional development. After reviewing the contentions and evidence of record, and to contemplate the Veteran's left upper extremity neurological symptoms, however diagnosed, the Board has recharacterized the Veteran's claim as one for a left upper extremity neurological disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Given the different dispositions reached for the claimed right and left upper extremity disabilities, the Board has bifurcated the appeal into two claims, as opposed to one claim for service connection for bilateral upper extremity neuropathy. In a December 2023 rating decision, the RO granted the Veteran's claims for service connection for right and left shoulder disabilities. As this constitutes a full grant of the benefits sought on appeal for those claims, those issues are no longer before the Board for appellate consideration. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). 1. Entitlement to service connection for right upper extremity neuropathy 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; 38 C.F.R. § 3.303. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection). Secondary service connection under 38 C.F.R. § 3.310(a) is warranted where a non-service-connected disability would have been less severe but for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability. See Spicer, 61 F.4th at 1364. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the evidence persuasively weighs against the claim, the claim is denied. Here, the Veteran asserts he is entitled to service connection for right upper extremity neuropathy. As an initial matter, the Board finds that the Veteran has a current diagnosis of right upper extremity neuropathy. See August 2023 VA peripheral nerves conditions examination report (documenting a July 2023 VA examination). Accordingly, a current disability is established. Next, the Board finds that the Veteran is service connected for degenerative arthritis status post right shoulder rotator cuff repair (hereinafter referred to as "right shoulder disability"). See December 2023 rating decision. On review, the Board finds that the evidence is in relative equipoise as to whether the Veteran's currently diagnosed right upper extremity neuropathy was caused by a surgical procedure used to treat his service-connected right shoulder disability. In an August 2023 VA medical opinion, the VA examiner opined that the Veteran's claimed right upper extremity neuropathy was at least as likely as not proximately due to or the result of the Veteran's service-connected right shoulder disability. The VA examiner reasoned, in pertinent part, On 12/5/2017 Claimant underwent a Mumfords Procedure (rotator cuff repair, biceps tenodesis) claimant reports he continues to experience pain, weakness and tingling of his cervical column, shoulder and hands of which he treats conservatively with heat/ice and anti-inflammatories. Unable to determine if the neuropathy is a result of the residuals of the cervical fusion or that of residuals s/p Mumfords Procedure. In an August 2023 addendum VA medical opinion, the VA examiner explained she was unable "to differentiate due to overlap and interrelatedness of symptoms related to the cervical fusion and Mumfords Procedure," and reiterated in a September 2023 addendum VA medical opinion that she is "unable to differentiate if the neuropathy (right) is due to the right shoulder injury vs cervical fusion and/or Mumford's Procedure..." The VA examiner again provided a positive nexus opinion as to secondary causation in October 2023, reasoning, in pertinent part, that the Veteran's right upper extremity neuropathy "is equally due to the cervical fusion vs the Mumfords Procedure." The Board finds the August 2023, September 2023, and October 2023 VA medical opinions to be adequate and highly probative given the examiner's consideration of the Veteran's medical history and lay statements. In a December 2023 VA medical opinion, the VA examiner (a nurse practitioner) opined the Veteran's claimed bilateral upper extremity neuropathy was less likely than not proximately due to or the result of the Veteran's service-connected right or left shoulder disabilities. The VA examiner reasoned, in pertinent part, The conditions of bilateral upper extremity neuropathy and right and left shoulder disabilities are not medically related. The bilateral upper extremity neuropathy is a separate entity entirely from the right and left shoulder disabilities and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. A nexus has not been established. Based on the evidence within the C-file, the Veteran's likely etiology for his bilateral upper extremity numbness and tingling is more likely related to his cervical neck condition and is cervical radiculopathy that he is experiencing. In the Board's November 2023 remand directives, it specifically requested that a VA physician (medical doctor) provide the addendum VA medical opinion. Since the December 2023 VA medical opinion was provided by a nurse practitioner, the Board finds that the opinion does not comply with its previous remand directives and is therefore inadequate and of no probative value. See Stegall v. West, 11 Vet. App. 268 (1998). Even so, the Board finds that remand is not required to ensure substantial compliance since there are favorable, adequate opinions of record. Given the approximate balance of positive and negative evidence in this matter, the Board will resolve all reasonable doubt in favor of the Veteran to find that service connection for right upper extremity neuropathy is warranted on a secondary causation basis. The appeal is therefore granted. REASONS FOR REMAND 1. Entitlement to service connection for left upper extremity neuropathy is remanded. The Veteran asserts he is entitled to service connection for a left upper extremity neurological disability. The Board finds that remand is necessary to ensure substantial compliance with its previous remand directives, and for additional development. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the Board finds that the December 2023 VA medical opinion does not comply with its previous remand directives since the opinion was authored by a nurse practitioner, rather than a medical doctor. Remand is therefore required to obtain an addendum opinion from a medical doctor. Additionally, the Board finds that further medical clarification is needed. In the August 2023 VA peripheral nerves conditions examination report, the VA examiner determined that there were no findings, signs, or symptoms to support a diagnosis of left upper extremity neuropathy. However, in March 2018, June 2018, and August 2018 private treatment records from Sacred Heart Medical Group, the Veteran endorsed numbness and tingling in both hands and was assessed with "[n]umbness of upper limb" and "[a]nesthesia of skin." In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit Court held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment of earning capacity. See also Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020) (confirming that a disability as defined in Saunders "applies broadly to include more than just pain"). Furthermore, the requirement of a current disability is satisfied if the Veteran has a disability when he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, on remand, an addendum VA medical opinion should be obtained as to whether any left upper extremity neurological symptoms endorsed during the pendency of the claim resulted in functional impairment of earning capacity and, if so, whether they are etiologically related to the Veteran's active service, caused by a service-connected disability, or aggravated by a service-connected disability. Accordingly, the matter is REMANDED for the following actions: 1. Obtain an addendum VA medical opinion from a physician (M.D.) regarding the nature and etiology of the Veteran's claimed left upper extremity neurological disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a review of the entire claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether any left upper extremity neurological symptoms endorsed during the pendency of the claim (i.e., since August 2017) at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) resulted in functional impairment of earning capacity. * Specifically, address March 2018, June 2018, and August 2018 private treatment records from Sacred Heart Medical Group, in which the Veteran endorsed numbness and tingling in both hands and was assessed with "[n]umbness of upper limb" and "[a]nesthesia of skin." (b) For any left upper extremity neurological symptoms resulting in functional impairment of earning capacity, provide an opinion as to the following: a. Whether they at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) had their onset during or are otherwise related to the Veteran's active service. b. Whether they are at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by one or more of the Veteran's service-connected disabilities. c. Whether they are at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated (any incremental increase in disability regardless of permanence) by one or more of the Veteran's service-connected disabilities. * The examiner must consider any causal link between the Veteran's claimed left upper extremity neurological disability and his service-connected disabilities. * The examiner must provide separate rationales for both secondary causation and secondary aggravation. 2. Thereafter, please review the addendum VA medical opinion to ensure that all requested questions are fully answered by the examiner. If not, please take the appropriate corrective action. 3. Readjudicate the remanded claim. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.