PERIPHERAL NERVE PARALYSIS

ROMINA A. CASADEI · 2022 · Case ID: 22060579

MIXED

Summary

The veteran, who served from July 1963 to 1989, appeals the denial of service connection for bilateral radiculopathy of the lower extremities, claimed as secondary to his service-connected lumbar spine disability. The Board reviewed extensive evidence, including multiple VA and private medical examinations and treatment records. While some earlier records and examinations noted radicular symptoms or diagnosed radiculopathy, later examinations and opinions, particularly a VA examination from August 2022, concluded that the Veteran's symptoms were not due to radiculopathy but rather his service-connected bilateral polyneuropathy. The Board found the August 2022 VA examination to be the most probative, noting its thoroughness, review of all evidence, and clear rationale. The Board concluded that the Veteran does not have a separate diagnosis of radiculopathy and that his symptoms are encompassed within his existing service-connected polyneuropathy. Consequently, the claim for secondary service connection for bilateral radiculopathy was denied. The case also involved a remand for consideration of an extraschedular TDIU claim for the appeal period prior to January 24, 2013, as the veteran did not meet the schedular criteria for TDIU during that time.

Rationale

August 2022 VA examination found symptoms consistent with polyneuropathy, not radiculopathy; Earlier diagnoses of radiculopathy were corrected by examiners; Veteran's symptoms are encompassed within service-connected polyneuropathy

Special Benefit

TDIU

Docket No.

15-30 707

Full Decision Text

Citation Nr: 22060579
Decision Date: 10/27/22 Archive Date: 10/27/22

DOCKET NO. 15-30 707
DATE: October 27, 2022

ORDER

Entitlement to service connection for a separate left lower extremity radiculopathy disability, secondary to the service-connected lumbar spine disability, is denied.

Entitlement to service connection for a separate right lower extremity radiculopathy disability, secondary to the service-connected lumbar spine disability, is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis for the appeal period prior to January 24, 2013, is remanded.

FINDINGS OF FACT

1. The Veteran does not have a separate diagnosis of right lower extremity radiculopathy; symptoms associated with right lower extremity radiculopathy, which include numbness, pain, and tingling of the legs and feet, are related to the Veteran's already service-connected polyneuropathy.

2. The Veteran does not have a separate diagnosis of left lower extremity radiculopathy; symptoms associated with left lower extremity radiculopathy, which include numbness, pain, and tingling of the legs and feet, are related to the Veteran's already service-connected polyneuropathy.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a separate right lower extremity radiculopathy disability, secondary to a lumbar spine disability and other than left lower extremity peripheral neuropathy, have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.124a, Diagnostic Code 8520.

2. The criteria for entitlement to service connection for a separate left lower extremity radiculopathy disability, secondary to a lumbar spine disability and other than left lower extremity peripheral neuropathy, have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1963 to 1989.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2018 and February 2021, the Board remanded the claims for additional development. This development was completed and the claim was returned to the Board for additional appellate review. Following this, a Board decision issued May 2022 denied the Veteran's claim for an increased rating in excess of 20 percent and remanded the claims for service connection for a separate bilateral radiculopathy disability as secondary to the Veteran's lumbar spine disability. The claim has now been returned for additional appellate review following compliance with the remand instructions.

Service Connection Laws and Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013).

Service connection will also be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service
active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998).

When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Entitlement to service connection for bilateral radiculopathy of the right and left lower extremities, secondary to the service-connected lumbar spine disability is denied.

The Veteran contends that his radiculopathy of the lower extremities is due to his lumbar spine disability.

The Board notes that the Veteran is already service connected for bilateral polyneuropathy, characterized as bilateral upper extremity median nerve impingement and bilateral lower extremity sciatica, based on in-service exposure to an herbicide agent. See December 2019 VA examination and July 2020 rating decision.

The Veteran does not have a separate diagnosis of bilateral lower extremity radiculopathy as secondary to his service-connected lumbar spine disability; symptoms associated with bilateral lower extremity radic
for bilateral radiculopathy of the right and left lower extremities, secondary to the service-connected lumbar spine disability is denied.

The Veteran contends that his radiculopathy of the lower extremities is due to his lumbar spine disability.

The Veteran does not have a separate diagnosis of bilateral lower extremity radiculopathy as secondary to his service-connected lumbar spine disability; symptoms associated with bilateral lower extremity radiculopathy, which include numbness, pain, and tingling of the legs and feet, are related to the Veteran's already service-connected polyneuropathy.

Relevant evidence in the record includes several examinations and treatment records, conducted prior to the most recent remand, examinations conducted following the most recent remand, and lay statements from the Veteran.

A July 2011 VA spine examination, following the Veteran's claim for an increased rating for his lumbar spine disability, found no signs or symptoms related to radiculopathy.

October 2012 private treatment records state that there was no evidence of lumbar radiculopathy. The Veteran's private treatment records at the same facility dated in November 2012 show that, following a review of an MRI the Veteran received in October 2012 and an in-person examination, radicular symptoms in the arms and legs were noted.

Private treatment records from December 2012 noted some radiation of pain to the lower extremities and additional problems of numbness and tingling in the Veteran's feet. However, following an electrodiagnostic medicine evaluation (EMG) for upper and lower extremity pain and paresthesias, the clinician reported an electrodiagnostic impression of "mild sensory-motor peripheral polyneuropathy affecting the upper and lower extremities." His clinical impression was that the Veteran experienced "peripheral polyneuropathy with a history of Agent Orange exposure."

In January 2013, another clinician reviewed the Veteran's EMG results. He stated "the majority of [the Veteran's] pain is spondylosis in the facet joints and degenerative disc disease. . .. He did not show radiculopathy per his EMG. I believe that his numbness and tingling in the legs is secondary to peripheral neuropathy as well."

At an August 2019 VA spine examination, the Veteran reported current symptoms of constant low back pain with off and on numbness and tingling radiating down both legs to his feet, with flares of increased pain once or twice a month. The examiner diagnosed the Veteran with degenerative arthritis of the spine, IVDS, spinal stenosis, lumbar spine degenerative disc disease, and bilateral lower extremity radiculopathy. However, in September 2019, the examiner provided an additional statement explaining that her diagnosis of bilateral lower extremity radiculopathy was in error because the symptoms noted were related to polyneuropathy rather than to radiculopathy.

In December 2019, a VA peripheral nerves conditions examination was provided. The examiner diagnosed the Veteran with bilateral sciatica and opined that the lower extremity peripheral neuropathy was related to his active service, including exposure to herbicide agents.

A July 2020 rating decision granted service connection for right and left lower extremity sciatica, effective January 24, 2013. Service connection was provided based on evidence that the conditions were directly related to the Veteran's active service as indicated in the opinions provided by the December 2019 VA peripheral nerve conditions examiner and the Veteran's private physician.

From September 2020 through February 2021, private treatment records show the Veteran continued to report low back pain and neurological symptoms, including abnormal gait, lower extremity pain, and lower extremity numbness. He also received therapeutic injections.

The Veteran was afforded another VA spine examination in March 2021. At the examination, the Veteran reported frequent episodes of back pain and radicular pain in his lower extremities, and the examiner diagnosed him with degenerative arthritis, degenerative disc disease, IVDS, spinal stenosis, and radiculopathy.

The record also includes VA examinations which took place in August 2022, following the May 2022 remand for further development of the radiculopathy claim. Upon review of the claims file and in-person examination, the examiner in the August 2022 medical opinion disability benefits questionnaire opined that the Veteran has not had radiculopathy at any time during the appeal period and does not presently have radiculopathy. Instead, the examiner stated that the Veteran's symptoms are attributable to his IVDS and peripheral polyneuropathy. The August 2022 spine the examiner indicated that the Veteran did not o have radicular pain or any other signs or symptoms due to radiculopathy. In peripheral nerve conditions disability benefits questionnaire completed on the same day and month as the two mentioned above, the examiner diagnosed the Veteran with bilateral lower peripheral polyneuropathy and noted that the Veteran was experiencing moderate intermittent pain in the upper extremities, moderate paresthesias and/ or dysesthesias in all extremities, and numbness in all extremities.

Although the Veteran has occasionally been diagnosed with radiculopathy associated with his lumbar spine disability (see March 2021 VA examination report and August 2019 VA examination), the Board finds the August 2022 VA examination and medical opinion to be the most probative evidence of record. In this regard, the August 2022 VA examiner reviewed all the evidence of record, to include previous VA examinations, private treatment records, MRI reports, and EMG testing. The examiner also conducted a physical examination of the Veteran. Importantly, the examiner provided a medical opinion supported by a thorough rationale.

The Board therefore finds that the evidence weighs against a finding that the Veteran has a separate diagnosis of radiculopathy associated with his lumbar spine disability and his symptoms are not separate and distinct from the symptoms he experiences due to his service-connected bilateral polyneuropathy. Because of this, the first Shedden element for service connection is not met, and the claim must be denied.

It is clear that the Veteran is experiencing numbness, tingling, and pain in his lower extremities; however, these symptoms have been contemplated in his service-connected bilateral polyneuropathy disability. The record reflects that the Veteran was only diagnosed twice with radiculopathy, which the examiner then corrected to say that the Veteran was experiencing symptoms consistent with polyneuropathy. Furthermore, while the Veteran is competent to speak to his symptoms, he is not competent to diagnose radiculopathy or distinguish the diagnoses of radiculopathy and polyneuropathy.

Accordingly, examining the evidence provided in the record, the Board finds that the weight of the evidence is not in favor of the Veteran. Therefore, the Board finds that service connection for a separate bilateral radiculopathy disability of the lower extremities as secondary to the service-connected lumbar spine disability is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal is denied.

REASONS FOR REMAND

For the appeal period prior to January 24, 2013, entitlement to an extraschedular TDIU is remanded.

The Board notes that the Veteran has already been awarded TDIU for the appeal period beginning January 24, 2013.

Remand is necessary to refer, for extraschedular consideration, the Veteran's TDIU claim for the rating period on appeal prior to January 24, 2013.

The Board notes that prior to January 24, 2013, the Veteran's service-connected disabilities, when combined, were rated as only 40 percent disabling. Thus, prior to January 24, 2013, the Veteran did not meet the minimum schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16 (a). However, 38 C.F.R. § 4.16 (b) also provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation and Pension Service, for consideration of an extraschedular rating of unemployability.

The matters are REMANDED for the following action:

1. Refer the Veteran's claim to the Director, Compensation and Pension Service, for consideration of an extraschedular TDIU award for the appeal period prior to January
meet the minimum schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16 (a). However, 38 C.F.R. § 4.16 (b) also provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation and Pension Service, for consideration of an extraschedular rating of unemployability.

The matters are REMANDED for the following action:

1. Refer the Veteran's claim to the Director, Compensation and Pension Service, for consideration of an extraschedular TDIU award for the appeal period prior to January 24, 2013.

2. Then, readjudicate the claim on appeal.

Romina A. Casadei

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Makarenko, Darya A.

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.

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