Citation Nr: 1456889 Decision Date: 12/30/14 Archive Date: 01/09/15 DOCKET NO. 10-18 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cervical spine disability with radicular pain and numbness. WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from May 1981 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2012, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of the hearing is of record. In September 2013, the Board remanded the issues of service connection for left lower extremity sciatica, a cervical spine disability with radicular pain and numbness, hemorrhoids, degenerative disc disease of the lumbar spine, and migraine headaches for additional post-service treatment records, another VA medical examination to ascertain the current nature and etiology of the left lower extremity sciatica, cervical spine disability with radicular pain and numbness, degenerative disc disease of the lumbar spine, hemorrhoids, and migraine headaches, and subsequent readjudication of the appeals. The case now returns to the Board after satisfactory completion of the ordered development; therefore, there has been compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In August 2014, service connection was established for radiculopathy of the left lower extremity, degenerative disc disease of the lumbar spine, migraine headaches, and hemorrhoids effective December 1, 2007. Because the benefits sought on appeal were granted in full during the course of remand, these issues are no longer on appeal. The only remaining issue on appeal is entitlement to service connection for a cervical spine disability with radicular pain and numbness. In September 2014, the Board notified the Veteran that the Veterans Law Judge (VLJ) who conducted the October 2012 Board hearing had retired and was no longer at the Board. The Veteran was advised of the hearing options and informed that the Board would assume that he did not want another hearing and proceed with review if he did not respond to the September 2014 letter within thirty days. The Veteran did not respond to the letter. FINDINGS OF FACT 1. The Veteran was treated for a cervical strain and had chronic symptoms of cervical spine arthritis and cervical neuropathy of the upper extremities during service. 2. The Veteran has had continuous symptoms of cervical spine arthritis and cervical neuropathy since service. 3. The Veteran has current degenerative disease of the cervical spine, to include arthritis and degenerative disc disease, and cervical neuropathy affecting both upper extremities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for cervical spine arthritis and cervical neuropathy are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(a) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). For reasons explained below, the Board is granting the Veteran's service connection appeal for cervical spine arthritis and degenerative disc disease with cervical neuropathy. Given the favorable outcome of the appeal, which is a full grant of benefits sought, the appeal has been substantiated, obviating the need for further discussion of how VA fulfilled the duties to notify and assist in this case. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Legal Criteria 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.A. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with degenerative disease of the cervical spine, including arthritis and degenerative disc disease, and cervical neuropathy (also diagnosed as cervical radiculopathy and ulnar neuropathy at various times). Arthritis and cervical neuropathy (as an organic disease of the nervous system) are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis and neuropathy (as an organic disease of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service Connection Analysis The Veteran contends that symptoms of the current cervical spine disability, diagnosed as arthritis and degenerative disc disease with cervical neuropathy, were manifested during service and have continued since that time. See October 2012 Board hearing transcript, pages 8-10; see also January 2014 VA medical examination report; June 2013 treatment record. As the Board is granting service connection for cervical spine arthritis and degenerative disc disease with cervical neuropathy based on cervical spine injury during service, chronic symptoms of cervical arthritis and cervical neuropathy during service, and continuous symptoms of cervical arthritis and cervical neuropathy since service, other potential theories for entitlement to service connection are rendered moot and will not be discussed. See 38 U.S.C.A. § 7104 (West 2014) (stating that the Board decides questions of law or fact). After a review of all the lay and medical evidence of record, the Board finds that the Veteran sustained an injury to the cervical spine during service, had chronic symptoms of cervical spine arthritis and cervical neuropathy during service, and has had continuous cervical spine and left upper extremity symptoms since service. At the Board hearing, the Veteran testified that she was treated for shoulder and arm pain during service in 1997, and, thereafter, continued to experience radiation and tingling in the arms during and since service. The service treatment records show treatment in June 1997 for cervical pain with intermittent radiation of the left upper extremity down into the fourth and fifth digits. The January 2014 VA medical examiner characterized the cervical injury documented in service treatment records as a cervical strain. The Board notes that the left shoulder pain and intermittent paresthesia of the left hand were noted to have resolved at the July 1997 follow-up service medical appointment, and there are no subsequent complaints, findings, or treatment of cervical pain, including neuropathy, documented during service; however, the Veteran testified at the Board hearing that the tingling in the arms continued after the 1997 medical treatment but she typically did not seek treatment for the symptoms because she feared that she would no longer be allowed to serve as a helicopter pilot. Because manual dexterity is particularly important for helicopter pilots, and it is reasonable that the Veteran would have been reluctant to regularly seek medical treatment for such symptoms during service because she did not want to jeopardize her service as a helicopter pilot, the Board finds the Veteran's testimony regarding continued paresthesia of the upper extremities during service after having received medical treatment for cervical spine symptoms in 1997 to be credible despite the absence of documentation in service. The Board also notes that the Veteran filed the current VA disability claim for a cervical spine condition with radicular pain and numbness in October 2007 (i.e., during service), which provides further support for the Veteran's report that cervical spine and paresthesias symptoms continued after service. Although the January 2014 VA medical examiner provided a negative medical opinion regarding the likelihood of a nexus relationship between the current cervical spine disability and service, the VA medical examiner did not consider the Veteran's report of continued cervical spine symptoms (i.e., paresthesias in the arms) after the initial treatment during service in 1997. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for cervical spine arthritis and degenerative disc disease with cervical neuropathy have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for cervical spine arthritis and degenerative disc disease with cervical neuropathy is granted. ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs