Citation Nr: 1754951 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-12 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1 Entitlement to service connection for a degenerative lumbosacral spondylosis, claimed as secondary to service-connected lumbosacral strain. 2. Entitlement to a separate compensable rating for bilateral lower extremity radiculopathy. 3. Entitlement to a separate compensable rating for bilateral upper extremity radiculopathy. 4. Entitlement to service connection for a right shoulder disability, claimed as secondary to service-connected cervical spondylosis. REPRESENTATION Veteran represented by: Amy B. Kretkowski, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1970 to September 1973 and from October 1974 to November 1978. These matters come before the Board of Veterans'Appeals (Board) from August 2011and March 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Board has not only reviewed the Veteran's physical claims file, but also his electronic claims file to ensure a total review of the evidence. In October 2012, the Veteran testified at a hearing at the RO before a Decision Review Officer (DRO). A transcript of the hearing is of record. The Board remanded the claims to the agency of original jurisdiction (AOJ) for additional development in March 2015 and July 2015. In a June 1983 decision granting service connection cervical spondylosis, the Veteran was advised that an evaluation of 10 percent for cervical spondylosis encompassed his neck and shoulder disability, which was secondary to the cervical spondylosis. FINDINGS OF FACT 1. The most probative evidence of record is against a finding that the Veteran's degenerative lumbosacral spondylosis is related to, or aggravated by, active service. 2. The Veteran's degenerative lumbosacral spondylosis was not caused or aggravated by his service-connected lumbosacral strain. 3. The most probable evidence of record is against a finding that the Veteran has a bilateral lower extremity radiculopathy related to, or aggravated by, active service. 4. The most probable evidence of record is against a finding that the Veteran has a bilateral upper extremity radiculopathy related to, or aggravated by, active service. 5. The most probable evidence of record is against a finding that the Veteran's right shoulder disability is related to, or aggravated by, active service. 6. The Veteran's right shoulder disability was not caused or aggravated by his service-connected cervical spondylosis. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a degenerative lumbosacral spondylosis are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. A bilateral lower extremity radiculopathy disability was not incurred in or aggravated during a period of active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.10 (2017). 3. A bilateral upper extremity radiculopathy disability was not incurred in or aggravated during a period of active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.10 (2017). 4. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). First, VA letters issued in August 1982 and August 2011, satisfied the duty to notify provisions with respect to the claims for service connection herein, and notified the Veteran of the factors pertinent to establish said claims. Further, VA has satisfied its duty to assist the Veteran. The claims file includes the Veteran's service records, VA treatment records, and private treatment records, and the Veteran has not indicated that there are additional records to be obtained. Further, the Veteran underwent relevant VA examinations, including most recently in February 2013, October 2015, May 2016 and July 2017. The Board notes, that the accompanying reports reflect that the VA examiners reviewed the Veteran's claims file, recorded his current complaints, conducted appropriate examinations, rendered appropriate diagnoses and opinions consistent with the evidence of record, and provided rationales for the opinions expressed. As such, the Board finds that the VA examination reports, particularly the May 2016 and July 2017 opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board also finds that there has been substantial compliance with its July 2015 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, outstanding VA treatment records were obtained and associated with the evidence of record before the Board, and the Veteran was afforded adequate VA examinations in May 2016 and July 2017and his claims were readjudicated by the RO in an August 2017 Supplemental Statement of the Case. Accordingly, the Board finds that VA has satisfied its duties to notify and assist the Veteran under governing laws and regulations. The Board will therefore review the merits of the Veteran's claim. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Under 38 C.F.R. § 3.310, service connection on a secondary basis may be granted for a disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a non-service connected disability by a service connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Pursuant to 38 C.F.R. § 3.303 (b), when a chronic condition (e.g., arthritis) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases (e.g., arthritis) may also be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307 (a)(3); 3.309(a) (2017). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Degenrative Lumbosacral Spondylosis The Veteran contends that service connection is warranted for degenerative lumbar spondylosis. He contends that his spine spondylosis was caused by his service-connected lumbar strain. He reported that his back is constantly in pain. Essentially, the Veteran reported on his 1983 VA examination that his low back pain started in 1977 while he was paratrooping in Italy. The examination showed he had full forward flexion with somewhat decreased extension secondary to pain in the lower back region. The 1983 VA examiner reported that the Veteran was able to toe walk and heel walk. The Veteran had a negative straight leg raising in the sitting position where it is positive in the supine position about 30 degrees bilaterally for causing him pain in the back area as well as the groin area. Motor examination was normal in all groups. X-ray of the lumbar spine indicated no evidence of fractures and the joint spaces seemed well maintained. Thoracic spine shows no bony abnormalities. The medical data presented entails both examination and treatment records compiled by VA and non-VA medical professionals. VA medical examinations in 1982, 1983, 1984, 2011and 2013 disclosed no evidence of paraspinous muscle spasm, vertebral fracture, bony abnormalities, neurological deficit in the upper extremities and no limitation of range of motion (ROM) in the lumbar spine. No functional loss or impairment was noted. No guarding or muscle spasm of the lumbar spine noted. No muscle atrophy. No intervertebral disc syndrome (IVDS) of the lumbar spine. He does not use assistive device. A 2010 spine x-ray showed mild osteophyte L3 and back strains. In July 1984, the Veteran submitted a statement in support of his claim. The Veteran stated that his primary care physician advised him not to lift more than 20 pounds. He also reported that a VA neuro surgeon at the Iowa City VA Medical Center (ICVAMC) told him that nothing could be done about his back. He stated that he believes that the bursitis and arthritis have existed since 1979 and should be classified as chronic. The Veteran was afforded a VA examination in October 2015. The examiner diagnosed the Veteran with lumbar strain. The Veteran reported that he experiences daily back pain. He reported he cannot sit or stand for prolonged periods and cannot lift and carry more than 30 pounds. The examination disclosed no evidence of flare-ups. ROM was reportedly abnormal but does not contribute to functional loss. Pain, weakness, fatigability or coordination does not significantly limit functional loss. Muscle spasm does not result in abnormal gait or abnormal spinal contour. No guarding or muscle atrophy was reported. No additional neurologic abnormalities noted. No IVDS was noted. The examiner opined that it is less likely than not (less than 50% probability) that the claimed spine disability was incurred in or caused by the claimed in-service injury, event or illness. Likewise, the examiner further opined that it is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service connected lumbar strain. As rationale, the examiner noted there is no evidence of lumbar spine arthritis or spondylosis treatment, compliant or diagnosis in service. The VA examiner further opined that strains do not caused arthritis of the lumbosacral spine, nor does it caused disruption to the articular surface of the joint at the time of injury. The examiner noted that the Veteran's lumbar spondylosis is mostly likely a natural aging process. Most recently, in May 2016, an addendum to clarify the October 2015 examination was provided. The examiner reviewed all of the pertinent records relating to the Veteran's condition. The examiner opined that the lumbar spondylosis with radicular symptoms is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected lumbar strain. As rationale, the examiner opined that the use of associated body components as a result of avoiding use of a painful or limited component is a natural compensation. He further opined that whether the associated body part is capable of the increased load is a property of the associated part. The examiner stated that it is not unusual for two joints to share properties in the same person, but one joint's disease does not "spread" to another or cause damage to it. The examiner concluded that the condition of the thoracolumbar spine is due to something intrinsic to the thoracolumbar spine and not the cervical spine. (Oxford's Textbook on Orthopedics). Right Shoulder Disability The service treatment records (STRs) indicates that the Veteran complained about pain in the back of his neck that goes down across his shoulder under the arm. However, the record is void of any treatment, or diagnosis of a right shoulder disability. The Veteran contends that his right shoulder disability is due to his service-connected cervical spondylosis, which he alleged is due to an injury he sustained in a motor vehicle accident and a parachute jump. An examination of the shoulder was negative for any evidence of bursitis of the right shoulder or any abnormalities on the June 1983 VA examination. A February 2013 VA examination was administered to determine the etiology of the Veteran's shoulder disability. No additional limitation in ROM of the shoulder and arm after repetitive use was noted. No functional loss or impairment. Guarding of the shoulder was noted. Right shoulder abduction was normal. No ankylosis. X-ray of both shoulder were normal. The examiner reported that the Veteran's shoulder disability was mild. She opined that the shoulder disability is not related to the service-connected neck disability. The examiner stated that cervical spondylosis does not cause arthritis of the shoulder, and said it is not medically plausible. The Veteran was provided another examination in October 2015. The examiner reported that there is no evidence in the medical record of a separate chronic shoulder condition; therefore, there is no diagnosis. No flare-ups were reported of the shoulder or arm. The Veteran reported that he cannot perform overhead activity. There was no evidence of pain on weight-bearing. Evidence of localized tenderness of the joint was noted. No evidence of crepitus. Pain, weakness, fatigability or coordination does not significantly limit his functional ability. Forward flexion was normal. No ankylosis. No shoulder instability was reported. No degenerative or arthritis documented. The October 2015examiner noted that the Veteran does have physical examination findings; however, there is no diagnosis of a separate specific chronic right shoulder condition. As noted above, the VA obtained an addendum medical opinion in May 2016, to clarify the October 2015 VA examination findings. Here, the examiner opined that the Veteran's right shoulder disability was less likely than not (less than 50% probability) incurred in or caused by the service-connected spondylosis. The examiner noted that there is no diagnosis of right shoulder injury in service. Bilateral Lower and Upper Extremities The Veteran contends that service connection is warranted for bilateral lower and upper extremities. In this case, the Veteran was service connected for a lumbar strain and cervical spondylosis as extensively discussed above. The Veteran STRs as well as VA treatment records are silent for treatment or diagnosis for radiculopathy. A May 2015 EMG studies ruled out radiculopathy and instead identified peripheral neuropathy of the lower extremities due to the Veteran's non-service connected diabetes. Silimarly, the February 2013 cervical spine examination showed no diagnosis for radiculopathy. Idiopathic peripheral neuropathy was noted in 2014 with additional EMG studies in June showing axonal polyneuropathy. Most recently, the Veteran was afforded a VA examination in July 2017 for his condition. The examiner indicated that the Veteran carries a clinical diagnosis of peripheral neuropathy/axonal polyneuropathy along with bilateral carpal tunnel syndrome. The examiner reports that the July 2014 EMG studies along with the clinical examination indicated no cervical radiculopathy. The examiner opined that current examination and or electrodiagnostic studies show a compressive neuropathy at the level of the wrist as well as an axonal peripheral neuropathy. The examiner further opined that the etiology of the compressive neuropathy at the wrist is impingement of the median nerve at the carpal tunnel with risk factors to include age and, local arthritis, diabetes and obesity. The VA examiner further opined that neck condition do not affect the wrist, and noted that it is not plausible due to anatomic remoteness. In addition, the examiner stated that the Veteran was diagnosed with a polyneuropathy of idiopathic nature before he started seeking care at the ICVAMC system in 2011. Furthermore, the 2017 VA examiner noted that the Veteran was diagnosed with diabetes mellitus (DM) shortly after he started being seen at the ICVAMC system. The VA examiner opined that the definition of peripheral neuropathy excludes conditions of the cervical spine as cause of these conditions. The Board acknowledges the Veteran's attorney contentions. The attorney contends in an October 2015 brief, that the February 2013, October 2015 and May 2016 VA examinations are inadequate because the examiners had no known experience or expertise in diagnosing. The attorney also contends that the examiner failed to fully review the claim's file and failed to provide adequate rationale for their opinions. Accordingly, the Board accorded due consideration to the attorney's contention, and thereby requested new VA examinations, including the July 2017 examination, all of which the attorney took exception with. After a thorough review of the evidence of record, the Board concludes that service connection for a degenerative lumbar spondylosis disability, right shoulder disability and bilateral lower and upper peripheral radiculopathy is not warranted. The evidence demonstrates a diagnosis of lumbar spine disability, right shoulder disability and peripheral neuropathy/axonal polyneuropathy. Davidson, 581 F.3d at 1316; Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, the Veteran's service treatment records reflect complaints of pain in the lower back and shoulder. However, the probative evidence of record does not show that the Veteran's lumbar spondylosis, right shoulder disability and bilateral lower and upper peripheral radiculopathy were incurred in or caused by his active duty service or related to his service-connected lumbosacral strain and cervical spondylosis. The Board notes that there is no competent medical evidence of record indicating that the Veteran's disabilities are related to his active military service. In contrast, the VA examinations, particularly the May 2016 addendum and July 2017VA opinions were based upon a thorough review of the evidence in the claims file and provided sufficient explanation and rationale supporting the opinions. In that regard, the examiners cited the lack of x-ray of any lumbar spondylosis, right shoulder, and bilateral lower and upper peripheral radiculopathy disabilities and the conclusion that the Veteran's disabilities were due to the "normal aging process" in support of their opinions. Accordingly, the Board affords more probative value to the May 2016 and July 2017 VA opinions which found that the Veteran's lumbar spine, right shoulder and bilateral lower and upper peripheral radiculopathy disabilities were not related to his active duty service. The Board also considered the lay statements offered in support of the Veteran's claims. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his conditions. Layno v. Brown, 6 Vet. App. 465 (1994). However, lay witnesses are not competent to provide a medical diagnosis. See Barr, 21 Vet. App. 303. Thereby, the Veteran is not competent to definitively state the cause of his current right lumbar spine, right shoulder and bilateral lower and upper peripheral radiculopathy disabilities. The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claims for service connection for lumbar spondylosis, right shoulder and bilateral lower and upper peripheral radiculopathy, it is not applicable. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 505, 509-10 (2007). ORDER Entitlement to service connection for a degenerative lumbar spondylosis is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to a separate compensable rating for bilateral lower extremity radiculopathy is denied. Entitlement to a separate compensable rating for bilateral upper extremity radiculopathy is denied. Entitlement to service connection for a right shoulder disability, claimed as secondary to service-connected cervical spondylosis, is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs