Citation Nr: 18142956 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-27 184 DATE: October 18, 2018 ORDER 1. Entitlement to service connection for a cervical spine disability is denied. 2. Entitlement to service connection for radiculopathy of the left upper extremity is denied. 3. Entitlement to service connection for radiculopathy of the right upper extremity is denied. 4. Restoration of a 20 percent rating for sciatic nerve involvement of the left lower extremity beginning June 4, 2015 is granted. 5. Restoration of a 20 percent rating for sciatic nerve involvement of the right lower extremity beginning June 4, 2015 is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current cervical spine disability, and cervical spine pain did not have its onset in service and is not otherwise related to service, but is related to a post-service work injury. 2. The evidence does not show that the Veteran has had radiculopathy of the left upper extremity at any time during the appeal period. 3. The evidence does not show that the Veteran has had radiculopathy of the right upper extremity at any time during the appeal period. 4. The decision to reduce the rating for sciatic nerve involvement of the left lower extremity from 20 percent to 10 percent was not proper, as sustained improvement was not demonstrated. 5. The decision to reduce the rating for sciatic nerve involvement of the right lower extremity from 20 percent to 10 percent was not proper, as sustained improvement was not demonstrated. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for radiculopathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for radiculopathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. A 20 percent disability rating for sciatic nerve involvement of the left lower extremity is restored effective June 4, 2015. 38 U.S.C. §§ 1155, 5107(b), 5112; 38 C.F.R. §§ 3.344, 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 5. A 20 percent disability rating for sciatic nerve involvement of the left lower extremity is restored effective June 4, 2015. 38 U.S.C. §§ 1155, 5107(b), 5112; 38 C.F.R. §§ 3.105, 3.344, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from June 1990 until June 1993. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran filed a notice of disagreement in August 2015, and was provided with a statement of the case in May 2016. The Veteran was afforded a hearing before a Decision Review Officer (DRO) in February 2016. The Veteran perfected his appeal with a June 2016 VA Form 9. Service Connection—Generally 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(a). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For certain chronic disorders, including paralysis, an organic disease of the nervous system, service connection may be granted on a presumptive basis if the disease manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112, 1137. For chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, a showing of continuity of symptoms after service is generally required in order to establish entitlement to service connection. Id. Even where service connection cannot be presumed, service connection may still be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Entitlement to service connection for a cervical spine disability The Veteran claims that a current cervical spine disability is related to an injury he sustained while in service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a cervical spine disability. The reasons follow. As to evidence of a current disability, the Board finds that the Veteran has not been diagnosed with a cervical spine disability. There are complaints of neck pain, but there is not a diagnosis of a cervical spine disability. The private treatment records showing neck pain were from November 2010. The Veteran filed his claim for service connection for a cervical spine disability in March 2015. After the November 2010 complaint of neck pain, subsequent treatment records show sporadic complaints of neck pain, but they do not document neck pain causing functional impairment. For example, a January 2014 private record shows that the Veteran’s neck was supple with good range of motion. An April 2015 record shows that the Veteran was seen for body aches and congestion. A general examination was performed, and the examiner wrote that the neck was supple and had “full range of motion.” An April 2015 CT scan of the cervical spine was “grossly unremarkable.” In July 2015, the Veteran was seen again for back pain, and the neck was again described as supple with full range of motion. In January 2016, he reported neck pain that went into his upper extremities. The examiner noted there was minimal limitations in range of motion of the neck, but did not enter a diagnosis. The Veteran was referred to undergo a sensory nerve conduction study and needle examination to determine if there was evidence of cervical radiculopathy. A March 2016 electrophysiological study was normal. Thus, while there are complaints of neck/cervical spine pain, the Board finds that it does not rise to the level of causing functional impairment, and the preponderance of the evidence is against a finding that the Veteran has a current neck or cervical spine disability. Regardless, if the pain reported is evidence of a current disability, the Board finds that it does not change the conclusion that any cervical spine pain is not related to service. As to an in-service disease or injury, service treatment records are absent complaints of neck pain or cervical spine conditions during active service. While service treatment records contain a November 1992 record of back pain located in the midsection of the right side of the Veteran’s back following an injury incurred while lifting speakers during active service, there is no record of a cervical spine disability resulting from this injury. The Veteran testified at a February 2016 DRO hearing that he was subjected to stress on his back and neck during active service while riding in military vehicles. However, no complaints of neck pain were documented in the service treatment records. Regardless, even if the Board concedes that he had stress on his neck while in service, the preponderance of the evidence is against a finding that he has a current disability. Additionally, the Veteran’s claim for service connection for a cervical spine disability fails to show evidence of a nexus between a current disability and service. For example, a September 2010 VA treatment record shows that when the Veteran first sought treatment at VA, a systems review showed that the Veteran specifically denied neck pain. November 2010 private treatment records document complaints of neck pain following a job-related injury while working as a firefighter. Thus, the first time neck or cervical spine pain is reported following the Veteran’s discharge from service, it is attributed to a post-work-related injury, which injury occurred more than 15 years following service discharge. No medical professional has attributed the Veteran’s neck or cervical spine pain to service. There is evidence against such a nexus in the November 2010 private medical records, wherein the neck pain is attributed to an injury he sustained at that time, which is affirmative evidence that it was not incurred in service. While the Veteran believes that his neck pain is related to service, the Board finds that his November 2010 report of the onset of neck pain having started due to a work-related injury that occurred that month to be especially probative as to the cause of the neck pain he was experiencing. The Veteran is competent to report that he has experienced neck pain. However, to the extent that the Veteran’s statements further assert a nexus between his neck pain and his active service, to include riding in military vehicles, such statements are afforded no probative value, as the Veteran is not shown to possess the expertise necessary to render a nexus opinion regarding the etiology of his neck pain. Furthermore, the Veteran’s testimony of chronic neck pain following service discharge is not supported by the contemporaneous records. When he was seen at VA in September 2010 to seek medical treatment, he specifically denied neck pain. He reported mid back and low back pain. Thus, rather than the record being silent of complaints of neck pain, it was affirmative in finding no neck pain. When the Veteran complained of neck pain in November 2010, he attributed it to a work-related injury. There was no documentation that this pain had existed for a long time. Thus, his statement of chronic neck pain since service discharge is found not credible. There is no competent evidence that the Veteran’s neck/cervical spine pain either began in or is associated with his active service. For all the reasons laid out above, the Board finds that the preponderance of the evidence of record is against the Veteran’s claim of entitlement to service connection for a cervical spine disability. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b). 2. – 3. Entitlement to service connection for radiculopathy of the left and right upper extremities The Veteran claims that he has radiculopathy in his left and right upper extremities that is due to a neck/cervical spine disability or is otherwise related to service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claims for service connection for radiculopathy of the left and right upper extremities. The reasons follow. As to evidence of current disability, the Veteran was afforded a March 2016 VA neurology consultation to investigate his complaints of chronic neck pain and constant pain in his left arm. During this examination, the Veteran was evaluated for bilateral upper extremity mononeuropathies and cervical radiculopathies. The examiner noted that the left median sensory nerve action potentials were normal on antidromic study. The left median and ulnar sensory nerve actions also had normal latencies on palmar study. The examiner opined that the study was normal regarding the Veteran’s upper extremities. Thus, there is no competent evidence that the Veteran has radiculopathy in the left and right upper extremities. Without evidence of current disabilities, the claims for service connection are denied. As explained above, the Veteran is not competent to render diagnoses of radiculopathy of the left and right upper extremities, as that requires medical expertise, which the Veteran has not been shown to possess. There is affirmative evidence from objective testing that the Veteran’s upper extremities are normal. The preponderance of the evidence of record is against the Veteran’s claims of entitlement to service connection for radiculopathy of the left and right upper extremities. Thus, there is no reasonable doubt to be resolved, and the claims are denied. 38 U.S.C. § 5107(b). Reduction and Restoration The Veteran filed claims for increase for his service-connected sciatic nerve involvement of the lower extremities. He was provided a VA examination in June 2015, and then in a July 2015 rating decision, the RO reduced his evaluations for each lower extremity from 20 percent to 10 percent, effective the date of the VA examination. The Veteran appealed the reduction, and the issue is now before the Board. There are specific procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. Generally, when a reduction in evaluation of a service connected disability is contemplated and the lower evaluation will result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The Veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore. The RO must advise the Veteran of the proposed rating and give the Veteran 60 days to present additional evidence showing that compensation should be continued at the present evaluation level, as well as an opportunity to appear at a personal hearing. 38 C.F.R. § 3.105(e). However, when a rating reduction does not result in any reduction of VA compensation being paid to the Veteran as his overall combined disability rating is not reduced, the procedural protections of 38 C.F.R. § 3.105(e) do not apply. Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007). Additionally, where a disability rating has been in effect for five years or more, VA benefits recipients are to be afforded certain protections as set forth in 38 C.F.R. § 3.344. In such cases, where an examination indicates improvement, the rating agency must review the entire record of examinations and the medical-industrial history in order to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. If doubt remains, 38 C.F.R. § 3.344(b) provides that after affording due consideration to all the evidence developed, the agency will continue the rating in effect as provided for in that subsection. When a former rating is higher than the evidence available at the time justified, the VA may not later reduce the rating simply because the Veteran did not meet the schedular criteria, unless the underlying disorder has shown improvement, or unless clear and unmistakable error is shown in the determination to assign the disability rating. A disability rating also may not be reduced simply because the rating criteria has changed. See 38 C.F.R. § 3.951. At a February DRO hearing, the Veteran stated that a restoration of a 20 percent rating for his neuropathy would satisfy his appeal for the issues of paralysis of the left lower sciatic nerve and paralysis of the right lower sciatic nerve. Therefore, the Board will address the issues of entitlement to a restoration of a 20 percent rating for paralysis of the left lower sciatic nerve from June 4, 2015 to the present and entitlement to a restoration of a 20 percent rating for paralysis of the right lower sciatic nerve from June 4, 2015 to the present below. The service-connected right and left lower extremity peripheral neuropathy disabilities are rated pursuant to 38 C.F.R. § 4.124a, DC 8520. DCs 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124(a). In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. 4. – 5. Entitlement to a restoration of a 20 percent rating for paralysis of the left lower sciatic nerve from June 4, 2015 to the present These rating reductions did not result in any reduction of VA compensation being paid to the Veteran. His overall combined disability rating was not reduced, as the Veteran’s overall combined disability rating was 70 percent before the reduction and 80 percent after the reduction. Thus, the procedural protections of 38 C.F.R. § 3.105(e) do not apply. Stelzel, 508 F.3d at 1349. Provisions (a) and (b) of 38 C.F.R. § 3.344 do not apply, because the Veteran’s previous rating had not continued at the same level for five years or more. The Veteran was afforded a VA examination in May 2012. The examiner stated that the Veteran experienced moderate intermittent pain in the left and right lower extremities and moderate numbness in the left and right lower extremities involving the L4/L5/S1/S2/S3 nerve roots. The examiner noted that the Veteran had no other signs or symptoms of radiculopathy, and that the radiculopathy was moderate. The Veteran was also afforded a VA examination in June 2015. The examiner acknowledged the Veteran’s prior diagnosis of sciatic nerve involvement of the left and right lower extremities, and found that the Veteran experienced moderate constant pain, intermittent pain, paresthesia, and numbness in the lower extremities, involving the L4/L5/S1/S2/S3 nerve roots. The examiner stated that the Veteran had no other signs or symptoms of radiculopathy, and that the radiculopathy was moderate. The examiner explained that there was no change in the previous diagnosis of sciatic nerve involvement of the left and right lower extremities. As noted above, even if a former rating is higher than the evidence available at the time justified, the VA may not later reduce the rating unless the underlying disorder has shown improvement, or unless clear and unmistakable error is shown in the determination to assign the disability rating. When reducing the Veteran’s evaluation from 20 percent to 10 percent, the RO did not substantiate a finding that sustained improvement was shown. Furthermore, in the July 2015 rating decision, the RO explained that nerve damage was not considered moderate and would not qualify for a 20 percent rating unless there was absent sensation or loss of muscle strength. Whereas the June 2015 VA examiner noted that the Veteran experienced numbness and paresthesia in his lower extremities, the Veteran has been found to have experienced absent sensation. As there was also no evidence of improvement in the Veteran’s lower extremity disabilities, the Board finds that the June 4, 2015 reduction from 20 percent to 10 percent was improper. Both the 2012 and the 2015 examiners, when asked to describe the level of severity of the paralysis was for each lower extremity, they both checked “moderate.” Thus, the Veteran’s 20 percent rating for his left lower sciatic nerve disability will be restored from June 4, 2015. This finding by the Board does not prevent the RO from determining that that the initial 20 percent award was clear and unmistakable error. The Board is restoring the 20 percent rating because the RO claimed there was improvement without justifying upon what clinical findings it determined that there was improvement. As noted above, the Veteran told the DRO that if VA restored the 20 percent ratings, it would satisfy his appeal. See page 9 of hearing transcript. However, to the extent that he may have made that statement without being fully informed of what that means, the Board finds that the preponderance of the evidence is against a finding that the Veteran has moderately severe incomplete paralysis of the sciatic nerve in either lower extremities. At the 2015 VA examination, he had full strength in his lower extremities, reflex examination was normal for the knees, and the ankles were hypoactive. There were no absent reflexes. Sensory examination was normal in the upper anterior thighs, thighs/knees, and the right foot/toes with decreased sensation in the left foot. There was no absence of sensation in any of these areas of the lower extremities. The examiner found that the Veteran had moderate radiculopathy in the lower extremities without other neurologic abnormalities. The preponderance of the evidence is against a finding that the Veteran’s radiculopathy is moderately severe to warrant an evaluation in excess of 20 percent for either lower extremity. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Caruso, Associate Counsel