Citation Nr: 18145826 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-35 807 DATE: October 30, 2018 ORDER Service connection for occipital neuralgia is denied. Rating in excess of 20 percent for degenerative arthritis of the lumbar spine is denied. Rating in excess of 20 percent for cervical strain is denied. Initial rating in excess of 30 percent for migraines is denied. Initial rating in excess of 20 percent for left upper extremity radiculopathy is denied. Initial rating in excess of 20 percent for right upper extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran had active service from February 1997 to June 2009. 2. The evidence does not show a current diagnosis of occipital neuralgia. 3. A lumbar spine disability is manifested by subjective complaints of pain and muscle spasm; objective evidence includes restricted range of motion, localized tenderness, and abnormal gait. 4. A cervical spine disability is manifested by objective complaints of pain, stiffness and flare-ups; objective evidence includes restricted range of motion, muscle spasm, X-ray evidence of arthritis, and radicular symptoms. 5. Migraines are manifested by subjective complaints of pain, sensitivity to light, and nausea; objective evidence includes prostrating attacks multiple times a month. 6. Left and right upper extremity radiculopathy is manifested by subjective complaints of pain and numbness; objective evidence includes mild incomplete paralysis. CONCLUSIONS OF LAW 1. Occipital neuralgia was not incurred in service, cannot be presumed to have been incurred therein, and is not secondary to a service-connected disability. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2017). 2. The criteria for a rating in excess of 20 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5235-5243 (2017). 3. The criteria for a rating in excess of 20 percent for cervical strain have not been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5235-5243 (2017). 4. The criteria for an initial rating in excess of 30 percent for migraines have not been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.59, 4.71a, DC 8100 (2017). 5. The criteria for an initial rating in excess of 20 percent for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.59, 4.71a, DC 8510 (2017). 6. The criteria for an initial rating in excess of 20 percent for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.59, 4.71a, DC 8510 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Occipital Neuralgia Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran claims he has occipital neuralgia proximately due to his service connected cervical strain. The first element of service connection under any theory of entitlement, is a current disability. The Veteran submitted March 2012 private medical records at the time of his claim showing a diagnosis of occipital neuralgia. However, VA examiners in October 2015 and June 2018 failed to confirm this diagnosis. Similarly, June 2016 private X-rays of the cervical spine found mild disc space narrowing at C5-C6, but were otherwise normal. No occipital neuralgia was noted. VA treatment records also fail to show any diagnosis of occipital neuralgia. Medical evidence for the six years following the private medical record did not contain a diagnosis of occipital diagnosis. Therefore, the evidence weighs against finding a current diagnosis. Without a current diagnosis, the claim for service connection is not warranted under any theory of entitlement. The Board has considered the Veteran’s lay statements he has occipital neuralgia caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of a current disorder, or to diagnose himself, due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination reports and clinical findings than to his statements. Although a single diagnosis of occipital neuralgia has been reported, the weight of the medical evidence fails to reflect a current diagnosis. Therefore, the appeal is denied. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Rating in Excess of 20 Percent for the Lumbar Spine Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5237-5243. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran has been rated at 20 percent under DCs 5242-5010 and the Board will consider all relevant diagnostic codes. A rating in excess of 20 percent will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine 30 degrees or less (40 percent); • favorable ankylosis of the entire thoracolumbar spine (40 percent); or, • incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). Turning to the evidence, ankylosis of the thoracolumbar spine has not been shown. VA examiners in October 2015 and June 2018 found no ankylosis of any kind for the thoracolumbar spine. Neither was ankylosis noted in VA or private medical records. Therefore, the medical evidence does not support a higher rating for favorable ankylosis of the thoracolumbar spine. Next, the forward flexion of the thoracolumbar spine has consistently exceeded more than 30 degrees. The October 2015 VA examiner measured forward flexion to 55 degrees during a flare-up, and 60 degrees otherwise. The June 2018 VA examiner measured forward flexion to 70 degrees. Private and VA medical records similarly fail to note forward flexion limited to 30 degrees or less. As such, the medical evidence does not support a higher rating based on limitation of flexion. Finally, the Veteran was not prescribed bed rest for IVDS to warrant a higher rating. A June 2018 VA examiner found, after a review of his medical records, that there were episodes of bed rest over the 12-prior months; however, the duration was less than one week. As four weeks of prescribed bedrest has not been shown, the medical evidence does not support a higher rating. Rating in Excess of 20 Percent for Cervical Strain Cervical spine disabilities are rated under the General Rating Formula. The medical information conflicts as to whether the Veteran has a diagnosis of IVDS, but resolving doubt in his favor, the Board will consider the criteria for IVDS. Similarly, he has been diagnosed with arthritis of the cervical spine from X-ray evidence. However, as he is already compensated at 20 percent for limitation of motion, a higher or separate rating for arthritis under DC 5003 is not warranted, as the highest possible rating is 20 percent. The Veteran has been assigned a 20 percent rating for his cervical strain under DC 5237. To warrant an increased rating, the evidence must show: • forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the cervical spine; (30 percent) or, • IVDS incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); Turning to the evidence, the Veteran has not claimed, nor have VA examiners in October 2015 and June 2018 found, or VA or and private medical records noted, that he had incapacitating episodes of IVDS for at least 4 weeks during any 12-month period on appeal. As such, a higher rating for incapacitating episodes of IVDS is not warranted. Next, the Veteran has not claimed, nor has the evidence shown, any ankylosis of the cervical spine. The VA examiners did not find evidence of ankylosis. VA and private medical records are absent findings of cervical spine ankylosis. Therefore, the medical evidence does not support a higher rating due to favorable ankylosis. Further, evidence has not shown that forward flexion of the cervical spine is restricted to 15 degrees. The June 2018 VA examiner measured forward flexion to 30 degrees with no further restriction after repetitive use. The October 2015 VA examiner measured forward flexion to 30 degrees, to include during flare-ups and repetitive use. Private and VA medical records do not show cervical spine flexion restricted to 15 degrees or less. Therefore, the medical evidence does not support a higher rating based on restriction of flexion. Rating in Excess of 30 Percent for Migraines The Veteran is currently rated at 30 percent for migraines. To warrant an increased rating, the evidence must show very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability (50% under DC 8100). March 2012 private medical records show migraines up to three times per week, lasting one hour to a full day, that were severe, pounding, throbbing, pulsating, with pressure and tightness, nausea and light sensitivity. During headaches, the Veteran had to lay down in a dark room. The functional impact made studying difficult. A February 2013 VA examiner noted similar symptomatology as the private medical records, but with migraine headaches occurring 3-5 days a week, and noted the Veteran had very frequent prostrating and prolonged attacks of non-migraine headache pain, which did not have any functional impact. Next, a VA medical record from February 2016 noted complaints of headaches, occurring intermittently around twice per week. VA medical records continue to show treatment for headaches during the appeals period. The private medical records and VA examination show frequency prostrating attacks but they were not shown to be productive of severe economic inadaptability. Rather, there was some functional impact on studying but the medical evidence has not otherwise shown that the headaches have caused severe economic inadaptability. The VA examiner explicitly denied any functional impact of the headaches. Thus, the medical evidence does not support a rating in excess of 30 percent. Rating in Excess of 20 Percent for Left Upper Extremity Radiculopathy The Veteran is currently rated at 20 percent for left upper extremity radiculopathy. To warrant a higher rating of 30 percent under DC 8510, the evidence must show moderate incomplete paralysis of the minor extremity. The June 2018 VA examiner noted that the Veteran’s left upper extremity radiculopathy had mild radicular pain and numbness, productive of an overall mild severity. Pain and weakness in the left upper extremity were also noted by the Veteran’s October 2015 VA examiner, and was noted as mild. VA medical records for the appeals period do not show moderate incomplete paralysis of the left upper extremity. Additionally, while the Veteran does have other affected radicular groups, none would warrant a higher rating. As such, the medical evidence weighs against a higher rating for left upper extremity radiculopathy. Rating in excess of 20 Percent for Right Upper Extremity Radiculopathy The Veteran is currently rated at 20 percent for right upper extremity radiculopathy. To warrant a higher rating of 40 percent under DC 8510, the evidence must show moderate incomplete paralysis of the major extremity. The June 2018 VA examiner noted that the Veteran’s right upper extremity radiculopathy had mild radicular pain and numbness, productive of an overall mild severity. Pain and weakness in the right upper extremity were also noted by the Veteran’s October 2015 VA examiner, and was noted as mild. VA medical records for the appeals period do not show moderate incomplete paralysis of the right upper extremity. Additionally, while the Veteran has other affected radicular groups, none would warrant a higher rating. As such, the medical evidence weighs against a higher rating for right upper extremity radiculopathy. With respect to all the increased rating claims, the Board has considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of these disabilities according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords these medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel