Citation Nr: 18142179 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 15-34 859 DATE: October 16, 2018 ORDER Entitlement to service connection for multilevel cervical spondylosis is granted. Entitlement to service connection for left upper radicular symptoms secondary to cervical spondylosis is granted. Entitlement to service connection for right upper extremity radicular symptoms secondary to cervical spondylosis is granted. FINDINGS OF FACT The evidence is in relative equipoise as to whether the Veteran’s cervical spondylosis and resulting bilateral radiculopathy in the upper extremities was caused by his military service. CONCLUSIONS OF LAW The criteria for entitlement to service connection for Veteran’s cervical spondylosis and resulting bilateral radiculopathy in the upper extremities have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from 1980 until he retired in 2000. During service, his primary specialty was as an Infantry Drill Sergeant and he served for much of this time in the 1st Battalion, 505th Parachute Infantry Regiment. The Veteran reported performing approximately 104 airborne combat equipment jumps during service. Service treatment records from 1980 to 1999 document some instances of treatment for cervical and upper extremity symptoms beginning in the early 1990’s. For example, in 1991, the Veteran reported neck pain following a motor vehicle accident, but x-rays were negative and he was diagnosed with only a neck strain. In 1993, the Veteran reported “extreme” pain in the back of the neck after weight lifting. In 1994, he further reported low back pain that was accompanied by “tingling” and radiation of pain down the left arm during flare-ups. X-rays of the lumbar spine performed at that time revealed L5 lumbar spondylolysis. However, cervical x-rays were not performed. Prescribed treatments included pain medication, heat, and a neck brace, but records of follow up treatment for neck or upper extremity symptoms are sparse. Instead, outside of these incidents, the Veteran’s medical treatment during service primarily focused on foot, knee, and lumbar injuries incurred while performing more than 100 parachute jumps. As a result of this repetitive trauma incurred during parachute jump landings, he was awarded service connection in 2000 for a right great toe bunionectomy, left great toe hallux valgus, excision of an osteochondroma of the left tibia, and lumbar degenerative disc disease. In 2012, he was also awarded service connection for radicular symptoms in the bilateral lower extremities caused by lumbar spondylosis and nerve impingement. The Veteran contends that the same in-service injuries and trauma that first led to the development of his lumbar and lower extremity impairments also caused the eventual development of his cervical spondylosis and upper extremity radicular symptoms. His claim for service connection for these conditions was denied in a June 26, 2012 Rating Decision. The Veteran submitted a timely Notice of Disagreement in July 2012. Service connection was again denied in a September 26, 2012 Rating Decision. The Veteran submitted two other Notices of Disagreement in October 2012 and January 2013, in which he requested de novo review of the claim. In a September 7, 2015 Rating Decision, service connection was once again denied based on a de novo review. The accompanying Statement of the Case cited the opinions of two VA Examiners who found the Veteran’s cervical “degenerative joint disease” and bilateral “shoulder conditions” were not caused by or related to the Veteran’s lumbar degenerative disc disease and were not caused by the Veteran’s 1991 neck strain. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In regard to element (1), current disability, VA and private examinations indicate diagnoses of multilevel cervical spondylosis and disc protrusions with canal stenosis and foraminal stenosis causing chronic cervical pain and bilateral upper extremity tingling and numbness. Treatment has included physical therapy, injections, and multilevel cervical fusion. Therefore, the requirements of element (1) have been satisfied. Similarly, the requirements of element (2), in-service incurrence, are also satisfied. As discussed above, the Veteran contends that the repetitive trauma from rough landings during his more than 100 in-service parachute jumps caused his current cervical spondylosis and bilateral upper extremity radicular symptoms. He has also been awarded service connection for resulting lumbar spondylosis and lower extremity radicular symptoms. As a result, the requirements of element (2) have been satisfied under the Veteran’s theory of the claim. Regarding element (3), causal relationship, there is both supportive and negative opinion evidence. As for the negative evidence, in February 2012, when asked to provide an opinion regarding the etiology of the cervical spine disability, VA examiner Dr. S.M. opined the “current degenerative joint disease of the cervical spine is not caused by the neck strain diagnosed in 1991. He further opined the “degenerative joint disease of the cervical spine was in the imaging study in 2009,” and there was “no documentation showing that the 1991 event with normal x-ray of the cervical spine has progressed to the present degeneration.” As it pertains to the Veteran’s claimed bilateral upper extremity pain, tingling, and numbness, VA examiner Dr. J.G. opined in September 2012 that the Veteran’s “right shoulder issues are not caused by or a result of his L5-S1 degenerative disc disease.” He did not provide an opinion regarding the left shoulder. In contrast, subsequent private medical opinions support the alleged nexus between the Veteran’s current cervical and upper extremity issues and his in-service parachute jumps. For example, in a September 2015 opinion , the Veteran’s treating physician, Dr. A.R., noted that the Veteran’s statements and his service treatment records indicated his neck and shoulder pain began in the early-to-mid 1980’s due to extreme jarring of the spine. He noted the Veteran was diagnosed with lumbar spondylosis in the 1980’s during military service because of multiple combat airborne equipment jumps. Further, Dr. A.R. noted that spondylosis is medically known to be caused by trauma or repetitive stress injury of the spine. He opined that the Veteran’s recent development of thoracic spondylosis further supported the conclusion that the Veteran’s symptoms of chronic back and neck pain along with bilateral upper extremity numbness/tingling were caused by the repetitive trauma of in-service airborne jumps. In addition, Dr. A.R. provided a similar opinion in July 2016, again detailing the Veteran’s diagnoses and treatment history and concluding that the Veteran’s significant cervical pain and bilateral upper extremity radicular symptoms “stemmed from service.” The Board finds the opinion of the Veteran’s private physician to be more persuasive than that of the VA examiners, as the VA examiners appear to have misunderstood the Veteran’s theory of his claim. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. The Court further stated “[r]easonably, the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction his […] condition, whatever that is, causes him.” Clemons, 23 Vet. App. 1, 5 (2009). In the present case, while the Veteran may not have used the correct medical terminology, he clearly conveyed his belief that his cervical condition was caused by the trauma of parachute jumps. Further, when describing his “shoulder” problems he was referring to the symptoms of his bilateral cervical radiculopathies. Despite this, one VA examination opinion focused on whether the cervical condition was caused by the Veteran’s lumbar condition and the other VA examination opinion focused on the shoulder joint. Specifically, when VA Examiner Dr. S.M. performed the cervical examination, he opined that the current cervical spondylosis and nerve impingement were not related to the Veteran’s 1991 neck strain. However, the veteran did not allege that the 1991 neck strain led to his current condition. Rather, he alleged that it was caused by the cumulative effects of numerous airborne jumps performed as a paratrooper. Indeed, in a July 2009 letter, the Veteran explicitly stated his back and neck had been “problematic since my active duty days when I was assigned as a combat arms paratrooper and drill sergeant. This has been a continual problem since my active duty days.” Similarly, VA Examiner Dr. J.G’s opinion and examination focused on the function of the Veteran’s shoulder joint instead of the effects of radicular symptoms in the upper extremities. While the Veteran may have indicated he had “pain” in his “shoulders,” he did not allege an orthopedic condition in his shoulder joints. Further, he did not allege his “shoulder pain” was caused by his lumbar degenerative disc disease and radiculopathies. Rather, he alleged the shoulder pain stemmed from his “neck” pain. While he did mention complaints of “shoulder pain” while on active duty that was diagnosed as a “sprain,” in the very next sentence he reported that his “treating neurosurgeon” had determined the “shoulder complaints [were] greater than a sprain.” He reported his neurosurgeon indicated the July 2009 MRI showed his shoulder complaints were “in fact related to multiple herniated discs in my neck, which are impinging on a nerve.” In addition, the Veteran’s theory regarding the cause of his upper extremity pain is actually supported by Dr. J.G.’s opinion. Dr. J.G. opined that the Veteran’s “clinical symptoms and story match his MRI findings.” Those findings included nerve compression in the cervical spine causing “radicular pain in his shoulders and arms,” which the examiner opined “explains his shoulder numbness and pain.” Dr. J.G. ultimately concluded the symptoms were due to “nerve compression in the cervical spine.” In light of the Veteran’s in-service injuries to the spine and the positive private medical opinion linking these injuries to the current degenerative changes in the cervical spine and resulting bilateral upper extremity radiculopathies, the Board finds that the evidence regarding the third element, causal relationship, is at least in relative equipoise. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the third element is satisfied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As all three elements have been satisfied, the Board finds that service connection for multilevel cervical spondylosis and nerve root impingement causing cervical pain and bilateral upper extremity radicular symptoms is warranted. M. TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew J. Vassallo, Associate Counsel