Citation Nr: 1616109 Decision Date: 04/21/16 Archive Date: 05/04/16 DOCKET NO. 10-04 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for myelopathy, including as secondary to a neck disorder. 3. Entitlement to service connection for radiculopathy of the bilateral upper extremities, including as secondary to a neck disorder. 4. Entitlement to service connection for radiculopathy of the bilateral lower extremities, including as secondary to a neck disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. MacDonald, Associate Counsel INTRODUCTION The Veteran had active service from June 1975 to April 1983. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These issues were before the Board in a November 2013. The Board reopened the issue of entitlement to service connection for a neck disorder and remanded the issues above for further development, including updated medical records and providing a VA examination. These requested actions were completed and the matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for irritable bowel syndrome, including as secondary to a service-connected back disability, has been raised by the record in a May 2015 application for benefits, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's current neck disorder did not begin during, or for several years after, his active duty service, and was not otherwise caused by service. 2. The Veteran does not have myelopathy which began during, or was otherwise caused by, his active duty service. 3. The Veteran's current bilateral upper extremity radiculopathy did not begin during, or was otherwise caused by, his active duty service. 4. The Veteran's current bilateral lower extremity radiculopathy was caused by his service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disorder have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 2. The criteria for service connection for myelopathy have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 3. The criteria for service connection for bilateral upper extremity radiculopathy have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). 4. The criteria for service connection for bilateral lower extremity radiculopathy have been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran is seeking service connection for several disabilities. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 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, 1167 (Fed. Cir. 2004). Service connection may also 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). Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition Each of the Veteran's appeals will be addressed in turn below. Neck Disorder The Veteran is seeking service connection for a neck disorder. During his active duty service, he sought treatment for neck pain in September 1977 and was diagnosed with muscle spasm. His service treatment records do not reflect he sought any additional treatment for his neck. Instead, on a May 1983 examination shortly before his separation, his spine was noted to be in normal condition. On the accompanying Report of Medical History, the Veteran himself denied experiencing recurrent back pain, arthritis, or other bone or joint deformity, and was noted to be in "excellent physical condition." Therefore, although he sought treatment for neck pain on one occasion, the service treatment records do not reflect he was diagnosed with any reoccurring neck disorder during his active duty service. According to a July 2009 Formal Finding of Unavailability, the records from the Veteran's post-service treatment at the VAMC in Dallas, Texas from April 1983 through September 2000 are unavailable for review. The Board is aware that when relevant federal records are unavailable through no fault of the Veteran it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinksi, 1 Vet. App. 365, 367 (1991). In July 2009 letter, the Veteran was informed that VA did not have these VA medical records, and invited to submit any copies in his possession, however to date no such records have been obtained. On several occasions, the Veteran has asserted that he experienced pain in his neck ever since active duty service. As a lay person, the Veteran is considered to be competent to report what comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, his lay statements describing neck pain since service are probative. However, as will be discussed, the Veteran's probative lay statements are not supported by contemporaneous medical records. The post-service medical records which are available reflect the Veteran did not experience any neck disorder for several years after his separation from active duty service. For example, in VA medical records from November 2004 and August 2005 his neck was noted to be supple on physical examination and no abnormalities were noted. Additionally, no diagnosis of any neck disorder was included in his medical history on records from 2004 through 2005. More persuasively, the Veteran himself did not report experiencing any neck pain in these records. Because he was seeking treatment for numerous other conditions, it is reasonable to assume he also would have reported any neck pain he experienced at that time. Because such symptoms would have ordinarily been recorded in the medical report, the silence regarding any neck disorder in these medical records suggests the Veteran did not experience any neck disorder at that time, and weighs against his subsequent lay assertions made in seeking VA benefits. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011); Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Therefore, the earliest post-service medical records included in the claims file provide evidence against the Veteran's assertion he experienced neck pain since active duty service. A May 2006 private MRI of the cervical spine reflects the Veteran had moderate degenerative spondylosis at C4-5, C5-C6, and C6-C7, mild degenerative change at C3-C4, and mild posterior central disc protrusion at C2-C3. Accordingly, the presence of a current disability is established. However, this report does not contain any opinion as to the etiology of the degenerative changes of the Veteran's neck. Following his MRI, he continued to seek private and VA treatment for his neck condition. In a May 2007 letter, his private physician, Dr. Shade, noted the Veteran initially injured his back during service, and had a repeat injury in 2004 while at work. Dr. Shade then opined the Veteran's current neck disorder was directly related to his Air Force service. However, Dr. Shade did not provide any rationale or explanation as to why the Veteran's current neck disorder was due to his active duty service more than twenty years earlier, and not his more recent post-service workplace injury. Because there is no rationale which the Board may use to evaluate against other opinions, Dr. Shade's May 2007 letter is limited in probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran continued to seek treatment for his neck disorder, including pain. During February 2009 treatment at the VA, he attributed his current neck disorder to using his neck to stabilize heavy loads of equipment which he carried into B-52s on his head during his active duty service. The treating medical professional did not provide any opinion as to whether the Veteran's current degenerative changes in his neck could have been caused in the manner described by the Veteran. An additional MRI in September 2009 continued to reflect disc bulges in the cervical spine. In April 2010, the Veteran was again evaluated by Dr. Shade. However, on this occasion, Dr. Shade related the Veteran's current neck disorder to a work-related accident on April 2010, when he experienced a major spasm in his neck and right shoulder while carrying his mail bag. Dr. Shade did not include any suggestion his neck disorder was related to active duty service in any way. By contradicting his earlier May 2007 letter relating the Veteran's neck disorder to his service in a subsequent letter three years later, the probative value of his original May 2007 letter is further undercut. Throughout 2010 and 2011 the Veteran continued to receive private and VA treatment for his neck disorder. An MRI from August showed cervical spondylosis with multilevel spinal stenosis. During September 2011 treatment with Dr. Mackenzie, the Veteran reported his current neck symptoms began in April 2010 following a workplace injury, but his neck symptoms also started after carrying heavy loads on his head while in the Air Force. In January 2012, the Veteran was provided with a VA examination. The examiner reviewed the Veteran's complete claims file, as well as personally interviewed and examined the Veteran. The Veteran reported he experienced his current neck pain for a long time, since approximately 1977 when he injured his neck in service. The Veteran reported he was treated at the hospital in-service and given a soft collar; however this treatment is not reflected in his service treatment records. As the examiner noted, in service he was diagnosed with muscle spasm and advised to return if the issue did not resolve, however he did not seek any additional treatment, and his May 1983 examination showed no complaints regarding his neck. The Veteran also reported he sought private treatment with Kaiser Permanente in approximately 1987, however these treatment records were not available. The examiner noted the Veteran worked as a postal carrier for the past 17 years, and the first medical records to reflect a diagnosis of degenerative disc disease were more than 20 years after his separation from service. For these reasons, the examiner opined the Veteran's current cervical spine condition was less likely than not related to the single episode noted in his service treatment records. Because this examiner provided a clear opinion with a complete rationale, his report provides probative evidence against the Veteran's appeal. In May 2012, the Veteran underwent an independent medical examination in conjunction with his claim for workers compensation. During this examination, the Veteran reported he began to experience muscle spasms in his neck while carrying a heavy mail bag on his right shoulder in April 20, 2010. The Veteran's statements made during this examination while seeking workers compensation benefits, therefore, contradict his statements made in the course of seeking VA disability benefits that he experienced neck symptoms since active duty service. Accordingly, the Veteran's lay statements are inconsistent depending on the type of benefits sought, and are therefore not credible. In January 2013, Dr. Shade completed a Neck Disability Benefits Questionnaire. He indicated he reviewed the Veteran's service treatment records, relevant history, and current medical records, and opined the Veteran's current neck disorder was caused by his injury sustained during active duty service in 1976. However, Dr. Shade did not provide any explanation why he changed his opinion from his April 2010 letter, which related the Veteran's current neck disorder instead to a workplace injury in 2010. Due to his inconsistent and contradictory opinions without explanation, Dr. Shade's opinions are not credible or probative. The Veteran continued to seek treatment for neck symptoms throughout 2014, and attributed his pain to his active duty service. However, as discussed the Veteran's statements regarding the origin of his symptoms are inconsistent and not credible. Treatment records from this period do not contain any medical opinion as to the etiology of the Veteran's neck disorder. In April 2015, the Veteran was provided with an additional VA examination. The examiner reviewed the Veteran's claims file, as well as personally interviewed and examined the Veteran, and indicated he was diagnosed with intervertebral disc syndrome and cervical spinal stenosis. The Veteran reported his neck pain started during service, which he attributed to loading B52 planes by balancing heavy loads on his head. He described experiencing constant pain since his service until present, although his symptoms were exacerbated by a work-related injury. The examiner noted the Veteran's service treatment records indicated he was diagnosed with muscle spasm in 1977, but did not seek any additional treatment. The examiner also noted on his May 1983 Report of Medical History the Veteran did not mention a neck condition. He further indicated the record did not contain any relevant post-service treatment until approximately 2006, as discussed above. The examiner then opined, "It is therefore impossible to establish an ongoing connection (nexus) between his complaints in service and the current neck condition. Therefore it is less likely than not that the veteran's current neck disability is etiologically related to his active service or to his service-connected back disability." Because this examiner provided a clear opinion and complete rationale, her report provides additional evidence against the Veteran's appeal. Based on all the foregoing, the evidence does not establish the Veteran's currently diagnosed neck disorder began during, or was otherwise caused by, his active duty service. The Veteran did seek treatment for neck pain during service, however he was only diagnosed with a temporary muscle strain. He did not seek any additional treatment, and no neck disorder was reported on noted on his examination the month before separation. Although several years of post-service medical records are unavailable, the post-service records included in the claims file do not reflect he experienced any neck disorder prior to 2006, more than 20 years after his separation from active duty service. Although in seeking VA benefits the Veteran has consistently asserted he experienced neck pain ever since service, he made contradictory statements to medical professionals in conjunction with a separate claim for workers compensation benefits. Accordingly, his statements are not credible. Similarly, Dr. Shade has also provided medical opinions relating the Veteran's current neck disorder to his active duty service. However, in separate statements written in support of the Veteran's workers compensation claims, Dr. Shade also related those same symptoms to a separate 2010 workplace injury. See April 2010 letter. Accordingly, his medical opinions are also inconsistent and therefore not probative. The evidence does not contain any additional medical opinion otherwise relating the Veteran's current neck disorder to his active duty service. Instead, two separate VA examiners provided probative opinions that the Veteran's current neck disorders were not related to his active duty service. As a result, the weight of the evidence is against the Veteran's appeal. The elements of service connection have not been met, and his appeal is denied. Myelopathy The Veteran is also seeking service connection for myelopathy, a neurologic deficit related to the spinal cord. As will be discussed, the evidence does not establish the Veteran has myelopathy which began during, or was otherwise caused by, his active duty service. The claims file includes a MRI from April 2009, prior to the period on appeal, which a VA physician interpreted as showing "subtle signs of myelomalacia," a form of myelopathy related to the softening of the spinal cord. In an August 2010 VA examination, the examiner indicated this same MRI showed spinal cord impingement, and the Veteran was diagnosed with progressive cervical myelopathy. In January 2011, a VA medical professional expressed additional concerns of cervical myelopathy, so scheduled the Veteran for an additional MRI. In June, this MRI was interpreted to reveal mild cervical canal stenosis without evidence of myelomalacia. The reviewing physician opined he did not have cervical myelopathy. In January 2012, the Veteran was provided with an additional VA examination. This examiner reviewed the Veteran's claims file, including the medical records from 2009 suggesting concern of cervical myelopathy. However, the examiner noted that further neurosurgical evaluation in 2011 clarified the Veteran did not have cervical myelopathy. Throughout 2013 and 2014, the Veteran's medical records consistently noted he was diagnosed with cervical degenerative joint disease with no myelopathy. Therefore, the evidence does not establish the Veteran was diagnosed with myelopathy at any point during the period on appeal. Although a 2009 MRI indicated a suspicion of myelopathy, further clarification, including an additional MRI, revealed he did not have such a diagnosis. However, even if a diagnosis of myelopathy was established, the evidence does not contain any suggestion the Veteran's suspected myelopathy was related to his active duty service. The condition developed several decades after his service, and the evidence does not include any medical opinion otherwise relating the suspected myelopathy to his active duty service. Finally, because service connection for a neck disorder is not established, as discussed above, secondary service connection based on this non-service connected disability is not applicable. Based on the foregoing, the elements of service connection have not been met, and the Veteran's appeal is denied. Radiculopathy of the Bilateral Upper Extremities The Veteran is also seeking service connection for radiculopathy of the bilateral upper extremities. The evidence does not establish, and the Veteran has not asserted, he developed such symptoms during his active duty service. Instead, as discussed above, on his May 1983 examination shortly before separation he was found to be in "excellent" health. Accordingly, the Veteran did not develop radiculopathy of the bilateral upper extremities during his active duty service. The claims file reflects the Veteran developed radiculopathy several years after his separation from active duty service. For example, during his January 2012 VA examination he was diagnosed with symptoms of radiculopathy in both upper extremities, including pain, mild paresthesias, and mild numbness. Such symptoms were noted throughout the period on appeal. Therefore, the evidence reflects the Veteran is currently diagnosed with radiculopathy of the bilateral upper extremities. However, the Veteran's radiculopathy of the bilateral upper extremities has consistently been related to his neck disorder. For example, the January 2012 VA examiner opined the Veteran's symptoms of radiculopathy in both arms were due to involvement of the C5-C6 and C7 nerve roots bilaterally. His radiculopathy was similarly attributed to his neck disorder is medical records throughout the period on appeal. However, as discussed above, the Veteran's current neck disorder is not service-connected. Because service connection cannot be granted secondary to a non-service connected disability, service connection for bilateral radiculopathy of the bilateral upper extremities as secondary to a neck disorder is not available. The claims file does not contain any evidence of medical opinion otherwise relating the Veteran's current radiculopathy of the bilateral upper extremities to his active duty service. Accordingly, the elements of service connection have not been met, and the Veteran's appeal is denied. Radiculopathy of the Bilateral Lower Extremities Finally, the Veteran is also seeking service connection for radiculopathy of the bilateral lower extremities. Medical records reflect he is currently diagnosed with bilateral lower extremity radiculopathy. See e.g. May 2009 private evaluation. Accordingly, the presence of a current disability is established. Throughout the period on appeal, the Veteran has consistently related his lower extremity radiculopathy to his service-connected back disability. The August 2010 VA examiner opined the Veteran's current radiculopathy symptoms of his bilateral legs were more likely than not originating from his non-service connection cervical disorder, and were unrelated to his service-connected degenerative lumbar disability, providing evidence against the Veteran's appeal. However, the medical evidence also includes other opinions from private medical professionals relating the Veteran's bilateral lower extremity radiculopathy to his service-connected back disability. For example, in a January 2013 Disability Benefits Questionnaire, Dr. Shade opined the Veteran's current bilateral lower leg radiculopathy was caused by involvement of the nerve roots of L2 through S3 in both legs, providing evidence in support of the Veteran's appeal. Accordingly, the evidence contains some opinions relating the Veteran's current radiculopathy of the bilateral lower extremities to his non-service neck disorder, and other opinions relating this disorder to his service-connected back disability. Therefore, the evidence for and against the Veteran's claim is in relative equipoise. VA regulations provide that in such situations, reasonable doubt will be resolved in the Veteran's favor. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Affording all benefit of the doubt to the Veteran, the Veteran's currently diagnosed radiculopathy of the bilateral lower extremities was caused by his service-connected back disability. The elements of secondary service connection have been met, and the Veteran's appeal is granted. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in July 2010, which informed the Veteran of all the elements required by the Pelegrini II Court prior to initial AOJ adjudication. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations, the reports of which have been associated with the claims file. The Board finds the VA examinations were thorough and adequate, and provided a sound basis upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disabilities. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for myelitis is denied. Entitlement to service connection for radiculopathy of the bilateral upper extremities is denied. Entitlement to service connection for radiculopathy of the bilateral lower extremities is granted, subject to the laws and regulations governing the award of monetary benefits. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs