PERIPHERAL NERVE DISORDERS

Summary

The Veteran served from June 2000 to June 2004. The Veteran appeals the denial of service connection for right lower extremity radiculopathy secondary to a service-connected lumbar spine disability and cervical spine degenerative arthritis and disc disease. The Veteran also seeks increased ratings for lumbar spine disability, abdominal scar secondary to lumbar spine disability, left lower extremity radiculopathy secondary to lumbar spine disability, and adjustment disorder with mixed anxiety and depression. Additionally, the Veteran appeals the denial of special monthly compensation (SMC) based on housebound status and entitlement to total disability based on individual unemployability (TDIU). For the right lower extremity radiculopathy, the Board found service connection warranted. While a September 2018 VA examination was negative, a March 2020 VA examination and an August 2021 private examination confirmed the diagnosis and linked it to the service-connected back disability. For the cervical spine disability, the Veteran reported an in-service parachuting accident in November 2003, followed by chronic neck pain and degenerative changes post-service. A VA examiner opined the condition was less likely than not service-related, but a private examiner found it at least as likely as not related to the in-service injury. The Board found the evidence in equipoise and resolved the doubt in the Veteran's favor, granting service connection for the cervical spine disability. The claims for increased ratings for lumbar spine disability, abdominal scar, left lower extremity radiculopathy, and adjustment disorder, as well as TDIU and SMC, were remanded. The Board noted that additional medical records from SSA disability proceedings may be relevant and ordered current VA examinations for the lumbar disability, abdominal scar, left lower extremity radiculopathy, and psychiatric disability. The Board also found that the TDIU and SMC claims were intertwined with the increased rating claims and would be premature to decide at this time.

Rationale

Subsequent VA and private examinations confirmed diagnosis; Examiners linked radiculopathy to service-connected back disability

Full Decision Text

Citation Nr: 23068306
Decision Date: 12/29/23	Archive Date: 12/29/23

DOCKET NO. 20-20 490
DATE: December 29, 2023

ORDER

Entitlement to service connection for right leg lower extremity radiculopathy as secondary to service connected lumbosacral strain with degenerative disc disease is granted.

Entitlement to service connection for cervical spine degenerative arthritis and disc disease, with disc protrusion and stenosis is granted.

REMANDED

Entitlement to an increased evaluation in excess of 10 percent for lumbosacral strain with degenerative disc disease is remanded.

Entitlement to an increased compensable evaluation for abdominal scar secondary to lumbosacral strain with degenerative disc disease is remanded.

Entitlement to an increased evaluation in excess of 10 percent for radiculopathy of the lower left extremity lumbosacral strain with degenerative disc disease is remanded.

Entitlement to an increased evaluation in excess of 30 percent for adjustment disorder with mixed anxiety and depressed is remanded.

Entitlement to special monthly compensation (SMC) based on housebound status is remanded.

Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1.  The Veteran has right lower extremity radiculopathy due to his service connected lumbar spine disability.  

2.  There is a balance of evidence on whether the Veteran's cervical spine degenerative arthritis and disc disease, with disc protrusion and stenosis is the result of in-service injury.  

CONCLUSION OF LAW

The criteria for service connection for right lower extremity radiculopathy and cervical spine degenerative arthritis and disc disease, with disc protrusion and stenosis have been met. 38 U.S.C. §§ 1110, 1154 (a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from June 2000 to June 2004.

In August 2021, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of the proceeding has been associated with the claims file.

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C. §§ 1110; 38 C.F.R. § 3.303, 3.304.  Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310 (a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki
 competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau; Layno.

1. Right Lower Extremity Radiculopathy

The Veteran contends that he suffers from right lower extremity radiculopathy that is secondary to his service connected lumbar spine disability.  

Although a VA examination in September 2018, did not find evidence of right sided lower extremity radiculopathy, the diagnosis was later confirmed in a March 2020 VA examination.  In that examination report, the VA examiner specifically attributed the right sided radiculopathy to the service-connected back disability.

A private examination in August 2021, also shows right sided lower extremity radiculopathy due to the Veteran's service-connected back disability.  

Based upon the foregoing, the Board finds that service connection is warranted for the Veteran's right lower extremity radiculopathy secondary to his service-connected back disability.  

2. Cervical Spine

The Veteran contends that he suffers from a cervical spine disability that is the result of his in-service 2003 parachuting accident.

A review of the Veteran's service treatment records shows that he experienced a parachuting whiplash injury in November 2003.  

A review of the Veteran's post-service treatment records shows that the Veteran began complaining of chronic neck pain in December 2012, with X-rays revealing degenerative hypertrophic changes.  In a May 2017 MRI, he was found to have cervical disc protrusion and stenosis.  There was no indication of etiology to military service provided.

The Veteran was provided with a VA examination in October 2018.  The Veteran was diagnosed to have degenerative arthritis of the cervical spine.  The examiner opined that this condition was less likely than not caused by or incurred in military service.  This was based on a lack of records for several years showing on-going neck complaints in the aftermath of the 2003 injury.  

In an August 2021 private opinion, the Veteran was diagnosed to have degenerative disc disease of the cervical spine.  It was opined that it was as least as likely as not that this current condition developed from the Veteran's initial 2003 parachuting injury.  It was noted that the Veteran did have in-service complaints of neck pain, which the Veteran reported was chronic, and that therefore, he considered the current disability to be related to the service injury.  

Here, there is both evidence for and against a finding of nexus between current disability and service.  Both examiners reviewed the Veteran's pertinent medical evidence and took his subjective history.  The Veteran is competent to provide such a history regarding on-going neck discomfort since service, and the description of his medical history appears to be credible.  Likewise, both medical examiners appear competent to provide medical opinions, and yet have arrived at opposite conclusions.  In these circumstances, the evidence appears to be in equipoise, on whether the claimed disability has a nexus with military injury.  Resolving reasonable doubt in favor of the Veteran, it may be concluded the Veteran's cervical spine disability, degenerative arthritis and disc disease, with disc protrusion and stenosis, was incurred in service.  

Service connection for the Veteran's cervical spine disability is granted.  

REASONS FOR REMAND

1. Lumbar, Scar, Radiculopathy, Psychiatric

At the outset, it is noted that in September 2021, the Veteran's representative submitted evidence that in May 2020, an Administrative Law Judge found the Veteran disabled for purposes of Social Security Administrative (SSA) benefits, due at least in part to his service connected disabilities.  It does not appear that all the medical records considered for SSA purposes have been associated with the file.  These may be useful for evaluating disability for VA purposes, and should be sought.  Thereafter current evaluations of the claimed disabilities should be accomplished.   

2. TDIU and SMC

Regarding these matters, the evidence of record indicates that the Veteran may be unemployable due to the service-connected disability.  In Rice v. Shinseki, 22 Vet. App. 
 September 2021, the Veteran's representative submitted evidence that in May 2020, an Administrative Law Judge found the Veteran disabled for purposes of Social Security Administrative (SSA) benefits, due at least in part to his service connected disabilities.  It does not appear that all the medical records considered for SSA purposes have been associated with the file.  These may be useful for evaluating disability for VA purposes, and should be sought.  Thereafter current evaluations of the claimed disabilities should be accomplished.   

2. TDIU and SMC

Regarding these matters, the evidence of record indicates that the Veteran may be unemployable due to the service-connected disability.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when a TDIU claim is raised by the record.  This was indicated at the Veteran's August 2021 Board hearing as well as in a private August 2021 examination report.  As such, the Board finds that entitlement to a TDIU has been raised in conjunction with the increased rating claims on appeal.  

Since additional disabilities have been service connected by this decision, however, and the ratings question remains open, a decision on the intertwined claim for TDIU and SMC benefits would be premature at this point.  

The matters are REMANDED for the following action:

1. With any necessary assistance from the Veteran, obtain and associate with the claims file any more recent treatment records since these were last sought.

2. Obtain and associate with the claims file any medical records that were considered in connection with the Veteran's grant of SSA disability benefits.

3. Thereafter, obtain current VA examinations for the Veteran's lumbar disability, abdominal scar, left lower extremity radiculopathy, and psychiatric disability from appropriate persons in order to determine the current severity of each of those disabilities.  The claims file should be reviewed, and any necessary testing and studies should be accomplished.

4. Readjudicate the appeal, to include the claims for TDIU and SMC benefits. 

 

 

M. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Dodd, Ryan

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.