Citation Nr: 1508170 Decision Date: 02/25/15 Archive Date: 03/11/15 DOCKET NO. 12-00 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a bilateral shoulder/arm disorder, to include as secondary to the service-connected residuals of fracture at C2 with degenerative joint disease. REPRESENTATION Appellant represented by: Andrew R. Kutz, Attorney at Law ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from December 1980 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the VA Regional Office (RO) in Togus, Maine. Due to the location of the Veteran's residence, jurisdiction of her appeal is with the RO in Indianapolis, Indiana. The Veteran was scheduled for a hearing before a Veterans Law Judge, but did not appear for the hearing. Accordingly, the Board considers her request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2014). Since the most recent supplemental statement of the case, the Veteran's representative submitted additional evidence, without a waiver, which relates to the issue on appeal. As the Board is granting service connection based on this additional evidence, the Veteran is not prejudiced by the Board's review of the new evidence. The Veteran also perfected an appeal as to the issues of service connection for carpal tunnel syndrome and a rating in excess of 40 percent for her service-connected cervical spine disability. Prior to the case being certified to the Board, the Veteran withdrew her appeal as to those issues in written correspondence received in February 2012. Accordingly, the Board considers the only issue on appeal as that listed on the first page. FINDING OF FACT The Veteran has cervical radiculopathy of the bilateral upper extremities that is as likely as not due to her service-connected residuals of fracture at C2 with degenerative joint disease. CONCLUSION OF LAW The criteria for service connection for cervical radiculopathy of the bilateral upper extremities as secondary to the service-connected residuals of fracture at C2 with degenerative joint disease have been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board is granting the benefit sought on appeal, no discussion of VA's duties to notify and assist is necessary. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Any disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. Additionally, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Service connection for the Veteran's residuals of fracture at C2 with degenerative joint disease has been in effect since March 1988. The Veteran's post-service records reflect complaints of shooting pain down the bilateral arms since at least 1997. See May 1997 VA examination. A May 2000 VA examination shows a diagnosis of right C5-C6 radiculopathy; however, diagnostic testing in June 2000 showed no evidence of cervical radiculopathy. At a June 2009 VA examination for her cervical spine, the Veteran was diagnosed with cervical fracture, old degenerative disc disease C5-6 with bilateral radiculopathy. The examiner opined that the Veteran's signs and symptoms were less likely than not involving the original injury of a C2 fracture. No rationale was provided. The Veteran was afforded a VA examination in February 2014. She was diagnosed with cervical fracture and degenerative disc disease. No shoulder or arm disorder was diagnosed and the only peripheral nerve diagnoses were bilateral carpal tunnel syndrome and resolved bilateral cubital tunnel syndrome. The examiner noted that no diagnostic testing had shown cervical radiculopathy; the examiner referred to testing in 2000, 2005, 2009, and 2012. Diagnostic testing at that examination again did not show cervical radiculopathy. Private treatment records reflect a diagnosis of cervical radiculopathy in September 2014 and cervical degenerative disc disease with concomitant cervical radiculopathy in December 2014. Based on a review of the evidence, the Board concludes that service connection for cervical radiculopathy of the bilateral upper extremities is warranted. The Veteran is currently service-connected for residuals of fracture at C2 with degenerative joint disease; the most recent VA examinations for her service-connected cervical spine disability also diagnosed her with degenerative disc disease as well. When affording the Veteran the benefit-of-the-doubt, the evidence also supports a finding of cervical radiculopathy associated with her service-connected disability. The Board acknowledges that diagnostic testing has not confirmed cervical radiculopathy; however, medical professionals, including two separate private physicians, provided such diagnosis after having had the opportunity to examine the Veteran. Additionally, the most recent diagnoses occurred after the last diagnostic testing. In this case, although diagnostic testing has not shown cervical radiculopathy, the fact that medical professionals have provided such diagnosis based on interviewing and examining the Veteran, leads the Board to find that the evidence is at least in equipoise as to whether the Veteran has cervical radiculopathy. The Board is unable to substitute its own medical judgment for those physicians who have diagnosed the Veteran with cervical radiculopathy. Therefore, the evidence supports a finding that the Veteran does in fact have cervical radiculopathy of her bilateral upper extremities. The evidence also supports a finding that the Veteran's radiculopathy is caused by her service-connected cervical spine disability. In finding that the Veteran has cervical radiculopathy related to her service-connected disability, the Board acknowledges the VA examination showing radiculopathy associated with C5-C6, when the Veteran's in-service injury was to C2. However, of particular importance to the Board, the September 2014 and December 2014 private treatment records indicate that the Veteran has cervical radiculopathy associated with her cervical spine disability, not necessarily confined to C5-C6. A December 2014 physician's statement specifically stated that the Veteran's neck pain is caused by her neck disability. Thus, when affording the Veteran the benefit-of-the-doubt, and in considering her long-standing reports of symptoms radiating from her neck, in light of the diagnoses of degenerative disc disease by VA examiners and of cervical radiculopathy associated with degenerative disc disease by private physicians, the Board reiterates that the evidence supports a finding that the Veteran has cervical radiculopathy that is secondary to, that is caused by, her service-connected cervical spine disability. Thus, after considering all of the evidence of record, the Board concludes that a finding of service connection is warranted. Service connection for cervical radiculopathy of the bilateral upper extremities is, therefore, granted. ORDER Entitlement to service connection for cervical radiculopathy of the bilateral upper extremities is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs