Citation Nr: 1803135 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 09-42 263A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for bilateral carpal tunnel syndrome, to include as secondary to service-connected lumbar spine degenerative disc disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1983 to October 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2011. A transcript of the hearing is associated with the claims file. This claim was remanded by the Board in August 2012, March 2014, October 2015, and May 2017, and the case has been returned to the Board for appellate consideration. The Board has reviewed the electronic records maintained in the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. The Veteran's cervical spine disability manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. The Veteran's carpal tunnel syndrome is not shown to be causally or etiologically related to an in-service event, injury, or disease; and is not shown to be caused or aggravated by the Veteran's service-connected lumbar spine degenerative disc disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2017). 2. The criteria for service connection for carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As noted above, the Board most recently remanded this matter in May 2017 for medical opinions. The Board specifically instructed a VA examiner to consider the reports of pain in 1997 and corresponding evidence of cervical spine degenerative disc disease, and to provide an opinion with rationale regarding etiology of the Veteran's carpal tunnel syndrome. The VA opinion was obtained with rationale for both the cervical spine and the carpal tunnel opinion in August 2017. A supplemental statement of the case (SSOC) was issued. Based upon the foregoing, the Board finds that the directives of the prior remand have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, including arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Presumptive service connection can be established based upon continuity of symptomatology for those chronic diseases set forth in 38 C.F.R. § 3.309(a). 38 C.F.R. §§ 3.307(a)(2)-(3), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran can also receive compensation via secondary service connection. Service connection may be secondarily established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) That a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). With all claims for service connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A. Cervical Spine Disability Service treatment records show that in April 1986 the Veteran complained of neck and leg pain while in service. No specific assessment of the Veteran's cervical spine function or pain was provided. See Service Treatment Records (STRs), dated April 1986. The next mention of cervical pain comes in April 1997, when she presented to the emergency room after a work injury. She was hit by a paper cart at work and hit her back. The Veteran reported she may have twisted her neck and she reported "some" neck pain. Her cervical spine x-rays were unremarkable and she was diagnosed with a cervical spine strain. Subsequent radiographic testing of the cervical spine in May 1997 revealed disc space narrowing with associated spondylosis and mild bilateral neural foraminal stenosis at both the C4-C5 and C5-C6 levels. Testing further revealed degenerative disc disease with associated degenerative bony changes. During a Compensation and Pension Examination in April 1999, the Veteran had no complaints regarding her head, neck, and upper extremities. An undated document next indicates an encounter for the Veteran seeking treatment for neck pain due to an automobile accident dated October 2004, and the Veteran asserted that her neck pain began with the October 2004 motor vehicle accident. An MRI of the cervical spine, post automobile accident, demonstrated normal height and alignment of the vertebral bodies and normal marrow signal in the cervical spine, but also demonstrated disc bulges with impression upon the thecal sac at multiple levels. A subsequent cervical spine MRI demonstrated degenerative changes at the endplate on multiple levels, especially C5-C6 and C6-C7. Vertebral body height was maintained throughout. Multilevel degenerative changes and cervical spondylosis were found from C2-C3 through C6-C7 with findings worse at C3-C4 through C5-C6. Results of MRIs in November 2004 and June 2005 were, generally, consistent with these findings. In January 2005, the Veteran saw a provider with the VA for a cervical spine herniated disc and mild stenosis. The causation of the cervical disability was reportedly due to the 2004 automobile accident. The Veteran sought private treatment with F.D., M.D. in March 2007 for cervical spine pain. She reported to Dr. F.D. that she had neck pain immediately after the motor vehicle accident. The Veteran told Dr. F.D. that she had had back pain since 1985 but had not had any neck pain prior to the accident. She reported causation consistent with this in subsequent treatment with Dr. F.D. A coinciding MRI of the cervical spine in March 2007 revealed a small broad-based disc herniation with mild acquired central canal stenosis at C3-C4 with small disc herniations at C4-C5, C5-C6, and C6-C7. In April 2007, Dr. F.D. stated: "I believe Ms. L. has herniated discs at C3-C4, C4-C5, C5-C6, and C6-C7, which are the direct result of the motor vehicle accident of [October 2004]." During a treatment session with the VA in April of 2010, the Veteran reported that she had neck pain as far back as 1985, but that it became worse after the accident in 2004. In March 2012, the Veteran had a cervical spine MRI, her history included two automobile accidents in 2004 and 2009. The MRI showed diffuse cervical intervertebral disc desiccation with diffusely bulging discs C3-C4 to C6-C7 with foraminal and central canal stenosis. Private treatment records from L.R., D.O. state that her symptoms began when she was a restrained driver in two vehicular accidents in October 2004 and July 2009. A July 2013 MRI of the cervical spine was, generally, consistent with the March 2012 MRI. A cervical spine VA examination was provided to the Veteran in April 2016. The examiner found that there was a diagnosis of degenerative arthritis of the cervical spine, which caused flare-ups every two months and is treated with steroid injections for the pain. The examiner opined that the Veteran's cervical spine disability was less likely than not related to service, given that there was no documented evidence of neck pain or condition after service in October 1996 as well as due to the Veteran's history of motor vehicular accidents. An addendum report in December 2016 noted that the examiner reviewed the Veteran's VBMS medical records, spine specialist notes, CPRS, VISTA medical records, and recent examinations. In May 2017, the Board determined that the April 2016 report was inadequate. Pursuant to the Board's remand, a subsequent VA opinion was provided in August 2017. In this opinion, the examiner opined that the Veteran's cervical spine degenerative disc disease was less likely than not related to military service due to lack of documented evidence of neck pain or treatment for the neck while in service, specifically pointing to a June 1990 examination of the head and neck that was within normal limits. The evidence that the examiner reviewed demonstrated no complaints of neck pain in October 1996, but rather a diagnosis only after a fall at work in 1997, many years after service. The examiner found that the symptoms of neck pain were further aggravated after the Veteran's accident in 2004. Based on the evidence, the Board finds that the Veteran has a current diagnosis of degenerative disc disease of the cervical spine. As such, the Board finds that the first Shedden element has been met. The Veteran testified that her cervical pain began in service. See Hearing Testimony, dated March 2011. Additionally, medical evidence indicates that the Veteran complained of neck pain during her time in service. See STRs, dated April 1986. Although she is not competent to make a specific diagnosis, the Veteran is competent to report her symptoms and when they began. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999). The Board finds that the second Shedden element is met. 38 C.F.R. § 4.3. However, the evidence is against finding a nexus between the Veteran's in-service event or injury and her current cervical spine disability. There is no evidence of a cervical spine disability upon discharge from service. See STRs, dated August 1990. The first objective findings of a cervical disability do not arise until 1997, seven years after discharge and after complaints of a neck injury at work. See Private Treatment Records, dated April 1997, May 1997. Notably, the August 2017 VA examiner opined that the Veteran's cervical spine disability was less likely than not related to the Veteran's service. The examiner pointed to the absence of treatment after service and the Veteran's history of automobile accidents. The Board finds that the August 2017 VA examiner's opinion that the Veteran's cervical spine disability was less likely than not related to her service is the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). The August 2017 VA examiner's opinion was definitive, based upon a complete review of the Veteran's entire claims file, pursuant to the Board's remand instructions, and in consideration of the Veteran's reported and documented history. Furthermore, the examiner provided a complete and thorough rationale in support of the opinion. Additionally, the VA examiner's opinion is consistent with the remaining evidence. The Veteran's own private physician's does not support a finding of a nexus between the Veteran's service incident and her current disability. The Veteran's physician opined, in 2007: "I believe Ms. L. has herniated discs at C3-C4, C4-C5, C5-C6, and C6-C7, which are the direct result of the motor vehicle accident of [October 2004]." Dr. F.D. is a licensed physician, competent to opine on the existence and etiology of a disability and there is no evidence that he lacks credibility. Additionally, the Board notes that Dr. F.D. has a history specific to a treating physician and has had the opportunity to both examine and treat the Veteran, affording him a thorough knowledge of her as a patient. As such, the Board affords his opinion great weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no positive nexus opinion between the Veteran's asserted in-service injury and her current cervical spine disability. The Board has considered the possibility of service connection on a presumptive basis. 38 C.F.R. §§ 3.307(a)(2)-(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a chronic disease, arthritis should be diagnosed within one year after service separation. 38 C.F.R. § 3.307(3). However, the Veteran was first diagnosed with degenerative disc disease in May 1997, over six years after her October 1990 separation. Thus, the statutory requirements for presumptive service connection for the Veteran's cervical spine disability are not met. 38 C.F.R. §§ 3.307(a)(2)-(3), 3.309(a). Additionally, the Veteran has not demonstrated continuity of symptomatology since discharge, given that she was injured in 1986 and evidence does not demonstrate complaints again until 1997, over ten years after her injury. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board has considered the Veteran's contentions that her spine disability is related to service. In this regard, the Board acknowledges that the Veteran is competent to give evidence about what she experienced, such as pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran is not competent to render an opinion as to the etiology of any spine disability because she does not have the requisite medical knowledge or training in the field of orthopedics. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, therefore, the Veteran, as a lay person, has not been shown to be capable of making medical conclusions, especially as to complex medical opinions regarding her cervical spine disability. As such, the Board ascribes far more weight to the conclusions of the VA medical professional who concluded that the Veteran's spine disability was not related to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, service connection is not warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 . Accordingly, the Veteran's claim for entitlement to service connection is denied. B. Bilateral Carpal Tunnel Syndrome Service treatment records are negative for complaints or findings of carpal tunnel syndrome. In March 2007, the Veteran had an EMG with bilateral upper extremities without evidence of carpal tunnel syndrome. One year later, in March 2008, the Veteran was afforded a VA examination for carpal tunnel syndrome. The EMG report was negative for carpal tunnel syndrome bilaterally. The examiner concluded that there was no evidence of carpal tunnel syndrome on the examination. In April 2010, the Veteran was seen for neck and back pain at the VA. During the visit, she demonstrated negative Tinel testing. The provider found that the Veteran's motor function could not be adequately evaluated, as the Veteran made less than maximal efforts due to complaints of pain. In May 2010, a note from D.S., M.D., a private treatment provider, reported that the Veteran had been diagnosed with carpal tunnel syndrome. Dr. D.S. opined that this was as a result of being required to use both hands to help with mobility, requiring the use of canes due to chronic lumbar disease. In April 2013, a VA examination was provided for the Veteran. The examiner diagnosed the Veteran with mild right carpal tunnel syndrome by reports only and mild left carpal tunnel syndrome by both objective measures and subjective reports. The examiner found that the Veteran was diagnosed with left carpal tunnel in 2010 but that she had complained of burning in the left and right wrists and hands since 2006. The Veteran reported using a walker for low back pain caused carpal tunnel in bilateral hands during the examination. The examiner considered that the Veteran's EMG testing in 2010 was normal in the right upper extremity but that there was median nerve involvement of the left upper extremity. The examiner indicated that there was no evidence of carpal tunnel syndrome in the right upper extremity. The examiner opined that the Veteran's carpal tunnel syndrome was less likely than not caused by or a result of using a walker for her lumbar condition. The examiner cited to up-to-date literature showing no definitive evidence that constant pressure would increase the risk of carpal tunnel syndrome. A subsequent VA examination in April 2016 showed a diagnosis of carpal tunnel bilaterally. The examiner reported that the Veteran stated she began to have tingling and numbness to bilateral wrists in 2010 and was diagnosed with carpal tunnel syndrome to bilateral wrists. Her body mass index was 35 with a documented history of morbid obesity. The March 2010 EMG, which revealed normal results in the right upper extremity and very mild left carpal tunnel with sensory demyelination were reviewed and considered. The examiner opined that the disability was less likely than not related to military service and less likely aggravated by use of canes or other ambulatory devices prescribed for the Veteran's service-connected lumbar spine condition. In an addendum opinion in December 2016, the examiner noted he had reviewed evidence in VBMS medical records, reviewed spine specialists notes, CPRS, and VISTA medical records as well as recent Compensation and Pension examinations. The examiner's opinion was unchanged from April 2016. Finding that the 2016 VA opinion was inadequate, the Board remanded for another VA opinion. In August 2017, the VA examiner opined that the Veteran's mild carpal tunnel syndrome was multifactorial, was less likely related to military service and less likely aggravated by use of assistive devices prescribed for the Veteran's service-connected lumbar spine disability. In support of his opinion, the examiner cited to the fact that symptoms started many years after service, the Veteran's morbid obesity, and contemporary medical literature showing that there was no definitive evidence that constant wrist pressure increased the risk of carpal tunnel syndrome. He also cited to his medical experience and expertise. The Board finds that the evidence of record is against finding service connection for the Veteran's carpal tunnel syndrome, either directly or as secondary to the her service-connected lumbar degenerative disc disease. The Veteran has been diagnosed with bilateral carpal tunnel syndrome since 2010, by subjective findings in the right upper extremity and with both subjective and objective findings in the left upper extremity. As such, the Board finds that the first Shedden element is met. The Veteran has no history of an in-service incident of carpal tunnel or any similarly situated incident involving bilateral wrist. As such, the Board finds that the second Shedden element for direct service connection has not been met. With respect to Shedden element (3), medical nexus, in the absence evidence of in-service incurrence or aggravation of a disease or injury, a medical nexus opinion would seem to be an impossibility. Accordingly, element (3) is not met, and the claim would fail on this basis as well. However, the Board has considered the elements of secondary service connection. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As previously indicated, the Veteran has a current disability; he has a diagnosis of bilateral upper extremity carpal tunnel syndrome. Additionally, he is service-connected for a lumbar spine disability. As such, the Board finds that the first Allen element is met. However, the evidence does not support that the Veteran's current disability was either caused by or aggravated by a service-connected disability. In this case, the Veteran asserts that her carpal tunnel was caused by the use of assistive devices required to ambulate with her service-connected lumbar degenerative disc disease. In this case, the Board finds that the August 2017 VA examiner's opinion is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, pursuant to the Board's remand instructions, and in consideration of the Veteran's reported and documented history. Furthermore, the examiner provided a complete and thorough rationale in support of the opinion and cited to medical literature. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008)(holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). The Board has considered the letter provided by the Veteran's treating physician, D.S., M.D., who opined that the Veteran had been diagnosed with carpal tunnel as a result of having to use both hands for mobility, specifically use of bilateral canes due to her lumbar disc disease. See Private Treatment Records, dated May 2010. This opinion consists of a conclusory statement which is not supported. As such, the Board affords this opinion limited probative weight. Finally, the Board has considered the statements of the Veteran that she utilized crutches and a walker for mobility due to her service-connected lumbar degenerative disc disease and that her hands became weak and painful. See Hearing Testimony, dated March 2011. While the Veteran is competent to testify to symptoms observable to the lay person, she has not presented evidence of medical expertise sufficient to render an opinion as to the causation of these symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999). In this instance, therefore, the Veteran, as a lay person, has not been shown to be capable of making medical conclusions. As such, the Board ascribes far more weight to the conclusions of the VA medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 . Accordingly, the Veteran's claim for entitlement to service connection is denied. ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for bilateral carpal tunnel syndrome, to include as secondary to service-connected lumbar spine degenerative disc disease, is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs