Citation Nr: 18148974 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 10-27 892 DATE: November 8, 2018 ORDER 1. Service connection for right lower extremity radiculopathy is granted. 2. Service connection for left lower extremity radiculopathy is granted. 3. Service connection for a cervical spine disorder is denied. 4. Service connection for a right upper extremity disorder is denied. 5. Service connection for a left upper extremity disorder is denied.   FINDINGS OF FACT 1. The Veteran’s right lower extremity radiculopathy is due to his degenerative arthritis of the lumbosacral spine. 2. The Veteran’s left lower extremity radiculopathy is due to his degenerative arthritis of the lumbosacral spine. 3. The Veteran’s cervical spine disorder is not related to service, and is not caused or aggravated by his service-connected degenerative arthritis of the lumbosacral spine. 4. The Veteran does not have a right upper extremity disorder that is caused or aggravated by his service-connected degenerative arthritis of the lumbosacral spine. Service connection is not in effect for a cervical spine disorder. 5. The Veteran does not have a left upper extremity disorder that is caused or aggravated by his service-connected degenerative arthritis of the lumbosacral spine. Service connection is not in effect for a cervical spine disorder. CONCLUSIONS OF LAW 1. The criteria for right lower extremity radiculopathy, as secondary to degenerative arthritis of the lumbosacral spine, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for left lower extremity radiculopathy, as secondary to degenerative arthritis of the lumbosacral spine, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria to establish service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria to establish service connection for a right upper extremity disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria to establish service connection for left upper extremity disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to May 1971. The case is on appeal from a June 2008 rating decision. In July 2011, the Veteran testified at a Board hearing. Thereafter, in April 2012, the Board remanded the claims on appeal for additional development and to issue the Veteran a statement of the case (SOC) in regard to an initial compensable rating claim for degenerative arthritis of the lumbosacral spine. As the Veteran did not file an appeal in regard to such rating claim, it is not before the Board. 38 C.F.R. § 20.202. In accordance with 38 U.S.C. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) regarding the Veteran’s cervical spine and upper extremity claims, which was received in May 2018. The Veteran and his representative were provided with the opinion in August 2018 and afforded an opportunity to submit additional evidence. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Legal Criteria 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; 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 granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for right lower extremity radiculopathy, as secondary to arthritis of the lumbosacral spine. 2. Service connection for left lower extremity radiculopathy, as secondary to arthritis of the lumbosacral spine. The Veteran contends that he has right and left lower extremity radiculopathy due to arthritis of the lumbosacral spine. The Board notes that the Veteran is service-connected for degenerative arthritis of the lumbosacral spine with radiculopathy and spondylolysis. However, he has not yet been separately granted service connection for right or left lower extremity radiculopathy. The Veteran was afforded an examination in regard to his lower back in July 2007. The examiner noted bilateral lower extremity symptoms during the examination, but did not attribute them to the Veteran’s low back arthritis. Thereafter, the Veteran was examined in regard to his peripheral nerves in July 2010. The examiner reported that the Veteran experiences moderately severe sensory loss due to lumbar radiculopathy. The examiner also reported that the Veteran has lower extremity neuropathy due to excessive alcohol consumption and that the percentage of functional impairment caused by each condition cannot be determined without resorting to pure speculation. Pursuant to the Board’s April 2012 remand, the Veteran was afforded another VA examination in regard to these claims in July 2016. The examiner reported that the Veteran’s bilateral lower extremity symptoms have worsened. The examiner also reported that the Veteran’s low back condition and radicular symptoms began during service. She found that it is more likely than not that the Veteran’s lower extremity radiculopathy started during service and has worsened over time. Subsequently, in July 2017, an addendum VA opinion was obtained in regard to these claims. The examiner found that it is more likely than not that the Veteran has lower extremity radiculopathy due to his service-connected low back disability. The Board finds that the Veteran has right and left lower extremity radiculopathy due to his service-connected degenerative arthritis of the lumbosacral spine, which in turn had service incurrence. In this regard, the VA examinations of record diagnosed the Veteran with bilateral lower extremity radiculopathy. In addition, July 2010 and July 2017 VA examiners found that these conditions were caused by his low back disability. Moreover, the July 2016 VA examiner found that both the Veteran’s low back and lower extremity radiculopathy had their onset during his military service. Furthermore, the July 2010 VA examiner also found that the Veteran has low extremity radiculopathy. While the July 2007 and July 2010 examiners attributed, at least in part, the Veteran’s lower extremity symptoms to a different cause, the Board finds these opinions less probative than the other VA examination opinions of record. Resolving reasonable doubt in the Veteran’s favor, the Board finds that Veteran’s right and left lower extremity radiculopathy is caused by his service-connected degenerative arthritis of the lumbosacral spine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. Accordingly, although radiculopathy was already listed as service connected generally, service connection is now warranted for radiculopathy specifically for the right and left lower extremities. 3. Service connection for a cervical spine disorder, to include as secondary to arthritis of the lumbosacral spine. The Veteran contends that he has a cervical spine disorder due to service or caused or aggravated by his service-connected arthritis of the lumbosacral spine. In this regard, during the July 2011 Board hearing, the Veteran reported that a private physician told him that he has a cervical spine disorder due to his service-connected back disability. Thereafter, in and August 2017 statement, the Veteran’s representative reported that the Veteran’s cervical spine condition was caused by a fellow service member falling on the Veteran while carrying a heavy weapon. The Veteran’s service treatment records (STRs) show that he was in a motor vehicle accident (MVA) during service. The Veteran reported low back symptoms following the MVA, but did not report symptoms in regard to his cervical spine or neck area. On a May 1971 report of medical history, the Veteran marked “yes” for back trouble of any kind, but did not specifically report anything in regard to his cervical spine. The Veteran’s May 1971 separation examination does not contain any reports or notes in regard to cervical spine symptoms or disorders. In February 2009, the Veteran submitted a letter from a private physician that was written in January 2009. He reported that the Veteran has a cervical spine arthritic condition that is secondary to his lumbar spine fusion surgery. The physician explained that additional stiffness of the lumbar spine places stress on adjacent levels and accelerated his cervical spine arthritis. Thereafter, pursuant to the Board’s April 2012 remand, the Veteran was afforded a VA examination in regard to this claim in July 2016. The examiner reported that the Veteran has cervical spine degenerative arthritis and intervertebral disc syndrome. The examiner stated that the Veteran had a cervical spine strain in 1970, but that there are no records in regard to the strain. The examiner noted that the Veteran has had operations on his neck and degenerative disc disease of the lumbar spine. However, the examiner found that the Veteran’s cervical spine disorders are less likely than not related to service or a low back injury. The examiner instead found that the Veteran’s cervical spine conditions are caused by natural age progression. As noted above, the Board obtained a VHA opinion in regard to this claim in May 2018. The opinion was prepared by a Chief of Neurosurgery for a VA Veterans Health Care System. Thus, a medical professional with great expertise in this area of medicine. The VA physician found that the Veteran has cervical spine arthritis that was first documented in 1995. He noted that the Veteran underwent lumbar spine fusion surgery in 1987. The VA physician also noted that in January 2009 a private physician found that the Veteran’s cervical spine arthritis is secondary to his lumbar spine fusion. He disagreed with this conclusion, explaining that medical literature suggests that spinal fusion that preserves normal spine alignment would not result in additional stress on the adjacent motion segments resulting in deterioration. The VA physician also reported that there is no reason to think that fusing a lower lumbar spine segment would cause an increase in stress at motion significant enough to result in degenerative changes 15 vertebral segments away. He concluded that he agreed with the 2016 VA examiner’s finding that the Veteran’s cervical spine conditions were not caused or aggravated by his lumbar spine disability. The VA physician also found it is less likely than not that the Veteran’s cervical spine disorders are related to his military service. The Board finds that the July 2016 VA examiner’s and May 2018 VA physician’s opinions are clear and unequivocal and are based on the relevant information, including the Veteran’s available STRs, post-service treatment records, diagnostic testing, and scientific findings. Moreover, the examiners’ explanations are logical and follows from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, their conclusions that the Veteran’s cervical spine disorders are not related to service, such as from the MVA, or caused or aggravated by his service-connected low back disability are highly persuasive and probative. In addition, VA physician persuasively explained why he disagreed with the findings of the private physician in regard to a relationship between the Veteran’s low back disability and his cervical spine disorders. While the Veteran believes that he has a cervical spine disorder that is related to service or caused or aggravated by his low back disability, these are complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. The Veteran, as a lay person, has not established the competence needed to rebut expert medical opinion. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); Monzingo, 26 Vet. App. at 106. As such, his opinion is not adequate to rebut the findings of the July 2016 VA examiner or May 2018 VA physician, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between his service or lower back disability and his cervical spine disorders. See Fountain, 27 Vet. App. at 274-75. Furthermore, while the Veteran provided a positive nexus statement from a private physician written in January 2009, the Board finds that this opinion is less probative as to the etiology of his cervical spine disorders than the May 2018 VA physician’s opinion. In this regard, the VA physician reviewed the private physician’s opinion and explained why he disagreed with the positive nexus opinion, including by citing to medical literature supporting his conclusions. Therefore, the Board finds the VA physician’s opinion to be more probative, and thus outweighs, the private physician’s opinion. Accordingly, the preponderance of the evidence is against the claim of service connection for a cervical spine disorder. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Service connection for a right upper extremity disorder on a secondary basis. 5. Service connection for a left upper extremity disorder on a secondary basis. The Veteran contends that he has right and left upper extremity disorders due to his service-connected arthritis of the lumbosacral spine, or in turn to his cervical spine disorder if it was to become service connected. In this regard, in a September 2007 statement, he attributed his bilateral upper extremity disorders to a low back injury. The Veteran was afforded a VA examination in regard to his back disability in July 2007. The examiner noted that the Veteran has bilateral upper extremity peripheral neuropathy. However, he attributed these conditions to alcohol abuse rather than the Veteran’s lower back disability. Thereafter, he was afforded a VA examination in regard to his upper extremities in July 2010. The examiner found that the Veteran experiences cervical radiculopathy and lumbar radiculopathy. However, the examiner reported that there is no etiological relationship between the Veteran’s cervical radiculopathy and his lower back disability because of the separation in time and space of the symptoms of these conditions. The examiner also noted that the Veteran experiences upper extremity neuropathy that is at least as likely as not related to excessive consumption of alcohol. Pursuant to the Board’s April 2012 remand, the Veteran was afforded another examination in regard to this claim in July 2016. The examiner noted that the Veteran began to experience upper extremity pain radiating from his neck in 1993. She also reported that testing in 2010 showed that the Veteran has bilateral carpal tunnel problems with diffuse polyneuropathy of the upper extremities, but no evidence of cervical radiculopathy. The examiner concluded that the Veteran’s upper extremity conditions are less likely than not service related. Subsequently, a VA addendum opinion was obtained in regard to these claims in July 2017. The examiner reported that the Veteran has upper extremity neuropathies. He concluded that it is less likely than not that the Veteran’s upper extremity conditions are related to his lower back because peripheral neuropathy such conditions are not medically related to lumbar radiculopathy. As noted above, the Board then obtained a VHA opinion from a Chief of Neurosurgery for a VA Veterans Health Care System in May 2018. The VA physician reported that the Veteran has experienced diffuse mixed motor and sensory polyneuropathy as well as focal mononeuropathies of the bilateral ulnar nerves at the cubital canals and of the median nerves at his wrists. He also reported that there are no findings suggestive of cervical radiculopathies. The VA physician found that there is a very high probability that there is no relationship between the Veteran’s upper extremity conditions and service considering the decades between his service and onset of his upper extremity conditions. The VA physician also found that the Veteran’s upper extremity conditions are not caused or aggravated by his lumbar spine disability. The Board finds that the July 2010 and July 2017 VA examiners’ and May 2018 VA physician’s opinions are clear and unequivocal and are based on the relevant information, including the Veteran’s available STRs, post-service treatment records, diagnostic testing, and scientific findings. Moreover, their explanations are logical and follows from the facts and information given. See Monzingo, 26 Vet. App. at 105-06; Nieves-Rodriguez, 22 Vet. App. at 304. Thus, these examiner’s and VA physician’s conclusions that the Veteran’s bilateral upper extremity disorders are not related to service are highly persuasive and probative evidence. Similarly, the July 2017 VA examiner’s and May 2018 VA physician’s conclusions that the Veteran’s upper extremity disorders are not caused or aggravated by his service-connected lower back disability are also highly persuasive and probative. Furthermore, as the Veteran is not service connected for a cervical spine disorder, his upper extremity disorders cannot be service connected secondary to such disorder under 38 C.F.R. § 3.310 as secondary service connection presupposes the existence of an underlying service-connected disability. While the Veteran believes that his bilateral upper extremity disorders are related to service or caused or aggravated by his lower back disability, these are complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. The Veteran, as a lay person, has not established the competence needed to rebut expert medical opinion. See Fountain, 27 Vet. App. at 274-75; Monzingo, 26 Vet. App. at 106. As such, his opinion is not adequate to rebut the findings of the July 2010 and July 2017 examiners or the May 2018 VA physician, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between his service or lower back disability and his upper extremity disorders. See Fountain, 27 Vet. App. at 274-75. Accordingly, the preponderance of the evidence is against the claims of service connection for right and left upper extremity disorders. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel