Citation Nr: 1807392 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-16 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for a lumbar spine disability from December 1, 2008. 2. Entitlement to a separate compensable rating for left lower extremity neurological abnormality associated with the service-connected lumbar spine disability. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to a separate compensable rating for right upper extremity radiculopathy. 5. Entitlement to a compensable rating for right shoulder dislocation residuals. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Sean Raymond, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1980 to October 2001. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. The Veteran and his spouse testified before the undersigned at a June 2017 Board Travel hearing in June 2017. A hearing transcript is of record. The Board notes the issues of entitlement to a separate compensable rating for left lower extremity neurological abnormality, and entitlement to a separate compensable rating for right upper extremity radiculopathy were originally claimed and developed as separate service connection claims. However, Note 1 to the General Rating Formula for Diseases and Injuries of the Spine provides that neurological abnormalities associated with the spinal disabilities must be evaluated as separate manifestations of such disabilities. 38 C.F.R. § 4.71a. As the record indicates both disabilities appear to be associated to service-connected spinal disabilities (left lower extremity radiculopathy secondary to service-connected lumbar spine disability, and right upper extremity radiculopathy secondary to cervical spine disability that is service-connected later in this Board Decision), the Board has recharacterized the issues as listed above. The Veteran has also interchangeably referred to his left lower extremity neurological abnormality as radiculopathy as well as neuropathy. Medical evidence in this case also appears to often conflate or swap the terms. The Board recognizes that neuropathy and radiculopathy have medically distinct causes; however, the thrust of the Veteran's claim is that he suffers from a neurological abnormality manifested as pain and numbness in his left lower extremity due to his lumbar spine disability, and thus, the Board evaluates this claim as one for a separate compensable rating for left lower extremity neurological abnormality associated with service-connected lumbar spine disability. The issues of entitlement to a compensable rating for right shoulder dislocation residuals and entitlement to a separate compensable rating for right upper extremity radiculopathy is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's lumbar spine disability does not cause unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes due to intervertebral disc syndrome lasting six weeks or more within a year. 2. The veteran suffers from a left lower extremity neurological abnormality associated with his service-connected lumbar spine disability that causes symptoms equivalent to no more than moderate, incomplete paralysis of the left lower extremity. 3. The Veteran suffers from a cervical spine disability because of service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for a lumbar spine disability from December 1, 2018, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2017). 2. The criteria for separate compensable rating of 20 percent, but no higher, for left lower extremity neurological abnormality associated with service-connected lumbar spine disability, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, DC 8720 (2017). 3. The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) obligates VA to certain notice and assistance procedures to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA provided required notice in December 2008, February 2009, May 2009, and May 2013 VCAA letters. VA obtained adequate December 2009, May 2015, and December 2015 examinations of the Veteran's claimed disabilities. In his January 2011 Notice of Disagreement, the Veteran contested the results of the December 2009 VA examination: I rebuke your stated results of my VA examination on December 2 2009 and I find them to be falsely stated. My range of motion was not 0 90 degrees. The 90 degrees of flexion was a result of me squatting to the floor and then needing to go to one knee and use the nearby exam bed to assist me in return to a standing position. My forward flexion standing with straight legs was approximately 0-20 degrees. Furthermore, your examiner stated no spasms, guarding, tenderness, or atrophy is noted. This too, is false, as he noted that I had problems rising from my chair in the waiting room when called upon and during the exam my actions were guarded when he physically pressed on my lower back. In his May 2014 VA Form 9, the Veteran challenged his VA medical examinations generally by stating: The evaluating medical staff at the regional medical screening are unqualified to assess my medical status and the level of debilitating damage to my body. Additionally, the VA clerks/representatives are unqualified to perform the proper and accurate assessment of my condition due to lack of medical skill sets required. Absent clear evidence to the contrary, VA examiners are presumed to have properly discharged their duties (the presumption of regularity). Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009). VA examiners are also presumed competent - the mere fact that an examiner may be a physician's assistant or nurse practitioner, does not, on its face, render an examiner or her opinion incompetent. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Essentially, the Veteran disputes the range of motion measurements of the December 2009 VA examiner, and alleges that he reported or demonstrated symptoms that went unrecorded by the examiner. Aside from the Veteran's complaints, the record contains no evidence of bias or incompetence of the December 2009 VA examiner to indicate the December 2009 VA examiner did anything other than record his objective clinical findings of his examination of the Veteran. Therefore, the Board finds no evidence to support these complaints to overcome the presumption of regularity with respect to the December 2009 VA examination, or any other examination, aside from any deficiency addressed further within this Board Decision and Remand below. Ultimately, with respect to those issues decided in this opinion, VA has satisfied its duties to notify and assist, and adjudication of the appeal does not prejudice the Veteran. II. Increased Rating Greater than 40 Percent for Lumbar Spine Disability A. Legal Criteria The adverse impact of a veteran's service-connected disability on his or her ability to function under the ordinary conditions of daily life, including employment, as compared with applicable Schedule for Rating Disabilities criteria, determines the veteran's disability rating. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA shall assign the higher of two applicable ratings if the disability more nearly approximates its criteria; otherwise, the lower rating shall be assigned. See 38 C.F.R. § 4.7. For non-initial increased rating cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). VA shall stage ratings when a service-connected disability exhibits symptoms warranting different ratings for distinct periods. Hart v. Mansfield, 21 Vet. App. 505 (2007). After consideration of all procurable and assembled data, any reasonable doubt regarding service origin, the degree of disability, or any other point, shall be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), the following evaluations are assignable with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: * 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; * 40 percent for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; * 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; and * 100 percent for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Plate V, 38 C.F.R. § 4.71a. Unfavorable ankylosis is when the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. When resulting in a higher combined evaluation, diseases or injuries of the spine rated by DC 5243 and evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes are rated as follows: * 20 percent for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; * 40 percent for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and * 60 percent for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and treatment prescribed by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note 1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). B. Analysis The Veteran's lumbar spine disability is currently rated as 40 percent disabling under DC 5243. The RO first assigned a 40 percent evaluation for the Veteran's lumbar spine disability, characterized as degenerative disc disease, effective November 2001. Since then, the Veteran's evaluation has remained at 40 percent, aside from two temporary 100 percent evaluations for convalescence lasting approximately two months each in September 2008 and December 2010. Should the record show that the Veteran's lumbar spine disability causes unfavorable ankylosis of the entire thoracolumbar spine, or caused incapacitating episodes of at least 6 weeks within a 12 month period, then the Veteran's lumbar spine disability would meet the criteria for an evaluation greater than the 40 percent he currently receives. A December 2009 VA examination report reflects the Veteran demonstrated 0 to 90 degrees of thoracolumbar spinal flexion, 0 to 30 degrees of extension, 0 to 30 degrees of left lateral flexion, 0 to 30 degrees of left lateral rotation, 0 to 30 degrees of right lateral flexion, and 0 to 30 degrees of right lateral rotation for a full combined range of motion of 210 degrees. The examiner noted the Veteran's spinal range of motion as normal. The examiner noted no spasm, localized tenderness, or guarding severe enough to cause abnormal gait or abnormal spinal contour. The examiner noted no incapacitating episodes of spine disease. The examiner noted no ankylosis of the spine. A June 2013 VA examination report reflects the Veteran demonstrated 0 to 70 degrees of thoracolumbar spinal flexion, 0 to 20 degrees of extension, 0 to 20 degrees of left lateral flexion, 0 to 30 degrees of left lateral rotation, 0 to 20 degrees of right lateral flexion, and 0 to 25 degrees of right lateral rotation for a combined range of motion of 185 degrees. The examiner noted no spasm, localized tenderness, or guarding severe enough to cause abnormal gait or abnormal spinal contour. No anklyosis was noted. The examiner indicated the Veteran had not suffered from incapacitating episodes due to intervertebral disc syndrome; however, the examiner did not review the Veteran's claim file, thereby rendering the assertion unreliable. Nevertheless, the range of motion measurements still offer some evidence pertinent to the claim. The June 2013 VA examiner examined the Veteran again in April 2015 and deemed the results too inconsistent and unreliable to render conclusive findings on the severity of the Veteran's disability. The examiner characterized the Veteran's subjective complaints "as out of proportion . . . to objective findings." The examiner further noted, "The veteran complained of pain through all attempted active range of motions, but when not under direct observation, he had significantly greater active range of motion without evidence of severe discomfort." A subsequent, December 2015 VA examination report reflects the Veteran demonstrated 0 to 30 degrees of thoracolumbar spinal flexion, 0 to 10 degrees of extension, 0 to 20 degrees of left lateral flexion, 0 to 20 degrees of left lateral rotation, 0 to 20 degrees of right lateral flexion, and 0 to 20 degrees of right lateral rotation for a combined range of motion of 120 degrees. The examiner noted pain on all ranges of motion as well as localized tenderness resulting in abnormal gait or abnormal spinal contour. The examiner noted no intervertebral disc syndrome episodes requiring bed rest. The examiner noted no ankylosis of the spine. While the Veteran contested the validity of the December 2009 VA examination results, the June 2013 VA examination lacked review of the Veteran's claims file, and the April 2015 VA examiner contested the validity of the Veteran's participation efforts. The latest December 2015 VA examination, however, is free of any burden, and nevertheless fails to reflect a severity level sufficient for a higher evaluation. VA and private treatment records also fail to indicate a worsening of the Veteran's lumbar spine disability in accordance with the schedular criteria. While several records, such as a February 2013 private treatment record, document clinical and surgical minutiae related to the Veteran's lumbar spine, and occasionally refer to "restricted range of motion" of the lumbar spine, they do not provide sufficient range of motion findings to compare against the schedular criteria for disability compensation purposes. The evidence of record ultimately fails to show the Veteran's lumbar spine disability approaches the criteria for an evaluation greater than 40 percent based on either lumbar spine range of motion, or frequency of incapacitating episodes. There is no indication of unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes due to intervertebral disc syndrome lasting six weeks or more within a previous year for any point of the non-convalescent appeal period. To the extent the Veteran has alleged a worsening of pain in his lower back, the Board notes that the Veteran's current evaluation contemplates pain, and does not find the evidence to indicate that pain rises to a level to create a disability level warranting a disability rating greater than that which the Veteran currently receives. 38 C.F.R. § 4.40, 4.59. The Board notes the Veteran's complaints surrounding the December 2008 increased rating claim primarily center on lower back pain radiating to the extremities. Issues concerning radiculopathy of the extremities either have been granted service connection by the RO, or are addressed further in the decision below. However, with respect to the lumbar spine disability specifically, the evidence preponderates against a finding of an increase in severity to warrant a disability rating in excess of 40 percent. Consequently, the benefit-of-the-doubt doctrine is inapplicable and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Entitlement to a Separate Compensable Rating for Left Lower Extremity Neurological Abnormality A. Legal Criteria Note 1 to the General Rating Formula for Diseases and Injuries of the Spine provides that neurological abnormalities associated with the spinal disabilities must be evaluated as separate manifestations of such disabilities. 38 C.F.R. § 4.71a. Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for 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 (2012); 38 C.F.R. §§ 4.2, 4.6. Foremost, the Board must determine whether the Veteran's claimed left lower extremity neurological abnormality is associated with his lumbar spine disability before determining whether such abnormality rises to a separately compensable level. A June 2001 pre-separation compensation and pension evaluation report reflects: He lost the feeling rather quickly in his left leg down to his left foot and underwent surgery on July the 5th of 1989. The first surgery was an L5-S1 discectomy and hemilaminectomy. He gradually recovered most of the feeling in his left leg and returned to full flying duty with a waiver. In 1991, he again began having constant pain in the low back radiating down the left leg and again had surgery in May of 1991. . . . He felt fairly well until 2000, and he developed a low back pain and numbness to his left foot once again. . . . He still has back pain radiating to the left leg . . . . The above constitutes evidence of possible in-service manifestations of the claimed left lower extremity neurological abnormality due to the lumbar spine disability. However, the RO initially denied the claim based on lack of current disability due to the December 2009 VA examination that noted "no objective clinical evidence of lumbosacral radiculopathy upon exam." The Board nevertheless finds subsequent evidence to support that the Veteran does suffer from a neurological abnormality of the left lower extremity associated with his lumbar spine disability. A July 2012 private treatment record reflects: I had the pleasure of seeing [the Veteran] in my office . . . and a copy of his nerve conduction studies and cervical MRI scan are enclosed. He does have significant polyneuropathy in the lower extremities which is secondary to his lumbar spondylosis and degenerative changes. A December 2015 VA examiner concurred with the findings of the July 2012 private treatment record and stated, "[I]t is a greater than 50 percent probability that his present lower extremity radicular symptoms are secondarily due to his primary service connected chronic lower back condition." The June and July 2017 private nexus opinions echo this sentiment as well. The Veteran also submitted a Disability Benefits Questionnaire completed in May 2015 by his private physician (the same that created the July 2012 private record) stating the Veteran had polyneuropathy of the legs due to several low back surgeries. Presently, the only significant evidence to weigh against any association to the service-connected lumbar spine disability is the December 2009 VA examination report that found no objective evidence of radiculopathy, and the April 2015 VA examination report wherein the examiner stated she could not render reliable findings due to the Veteran's apparent exaggeration of symptoms. However, such evidence, while unfavorable, does not outweigh the favorable evidence in this case. Indeed, the Board acknowledges that the Veteran's claimed symptoms may intermittently subside, as evidenced by the June 2001 pre-separation compensation and pension evaluation wherein the Veteran reported periods of relief. The record nonetheless supports such symptoms to be recurrent based on repeated treatment. Relatedly, the Board finds that any potential issues concerning malingering and credibility, while concerning, do not currently necessitate a finding that the Veteran has been entirely noncredible with his reporting given the plethora of evidence, including in-service evidence, which supports his claim. Given the Veteran's in-service manifestations of left lower extremity neurological symptoms due to an in-service lower back problem, and that multiple medical professionals have assessed the Veteran to suffer from bilateral lower extremity radicular and neuropathic symptoms secondary to the Veteran's service-connected lumbar spine disability, the Board finds the evidence to weigh in favor of finding that the Veteran's left lower extremity neurological abnormality is associated with his service-connected lumbar spine disability. As to whether the associated lower extremity neurological abnormality rises to a compensable level, the Board notes that a June 2015 private disability and benefits questionnaire (DBQ), completed by the Veteran's private physician, facilitates a finding on the matter. The June 2015 DBQ reflects "moderate" levels of constant pain and paresthesia in the left lower extremity. The physician noted decreased sensation in the lower legs. Muscle atrophy was noted in both legs. A December 2012 private treatment record reflects, "The pain radiate[s] . . . from low back down to bilateral low extremity. Pain severity is 5/10 average, 10/10 maximum." The Board finds this record to correspond to the June 2015 private DBQ, and interprets "5/10" as relatively equivalent to a "moderate" level of pain in this case. As the June 2015 private DBQ reflects moderate levels of pain and paresthesia, the Board finds the Veteran's left lower extremity neurological abnormality to be best approximated by a 20 percent rating for "moderate" incomplete paralysis of the sciatic nerve. While the Board notes the reported flare-up maximum of "10/10" in the December 2012 private treatment record, as well as an episode where the Veteran reported complete, temporary paralysis of his legs due to a back injury in September 2010 (see August 2015 correspondence), the record does not reflect that such episodes occur at a frequency to shift the approximation of the Veteran's symptoms from moderate to moderately severe. See 38 C.F.R. § 4.7. Further, the June 2015 private DBQ does not support a rating beyond 20 percent, as none of the Veteran's left lower extremity neurological symptoms were characterized as beyond moderate. While muscular atrophy was noted, the Board reiterates that impairment as judged by the examiner was at a moderate level rather than "moderately severe," which is the required symptomatology for the next higher 40 percent rating. The Board further points out that the atrophy was not described as "marked" as contemplated by the criteria for a 60 percent rating. The remaining evidence and examinations of records do not provide a detailed assessment of the Veteran's left lower extremity neurological symptoms, nor do they suggest a higher disability level than the one contemplated here. Consequently, the June 2015 private DBQ serves as the most probative evidence on the matter and the evidence supports a separate compensable rating of 20 percent. The Board thus grants a separate compensable rating of 20 percent, but no higher, for the Veteran's left lower extremity neurological abnormality associated with his service-connected lumbar spine disability. IV. Service Connection for Cervical Spine Disability A. Legal Criteria Service connection may be granted on a direct basis for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted on a secondary basis for a disability proximately due to, or aggravated by, a service-connected condition. See 38 C.F.R. § 3.310(a). Secondary service connection requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). For a Veteran who served 90 days or more of active duty after December 31, 1946, there is a presumption of service connection for certain enumerated "chronic diseases", such as arthritis and organic diseases of the nervous system, if the disability manifests to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that one of the enumerated diseases was noted during service or within the presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). B. Analysis There is no dispute as to whether the Veteran suffers from a cervical spine disability. The record contains several cervical spine diagnoses including degenerative disc disease, bone spurs, and radiculopathy. The remaining question concerns whether such disability is the result of an in-service event, injury, or disease, or another service-connected disability. VA did not obtain an examination to determine the nature and etiology of the Veteran's cervical spine disability. VA initially denied the claim based on a lack of diagnosis or treatment of any cervical spine condition within service or within one year of service, and that post-service treatment records failed to establish any sort of nexus to service. With the exception of a July 2012 private treatment record, the RO's analysis was largely sound. The July 2012 private treatment record, however, reflects a private physician's impression that "[The Veteran's] neck and lower back pain is very likely related to his work as weapons tech for 21 years and he has had multiple surgeries on his lower back." The July 2012 private physician did not expand further beyond this statement. While the July 2012 private treatment record may have been insufficient to establish service connection on its own, it nevertheless should have triggered VA's obligation to obtain an examination and etiological opinion on the issue. Regardless, the Veteran obtained several nexus statements from private physicians attesting to the relation between his cervical spine disability and service. The most detailed statement came from the physician that produced the abovementioned July 2012 record. In a June 2017 statement, the private physician noted that he reviewed both the Veteran's service treatment records and post-service treatment records. The physician opined that the Veteran's cervical spondylosis was more likely than not caused by repetitive injury due to lifting of ordnance in service. Three other private nexus statements - two from June 2017 and one from July 2017 - corroborate this conclusion. Ultimately, the Veteran's submission of these statements shifts the evidence in favor of a nexus between the Veteran's cervical spine disability and service, provided an in-service event causing the disability as stated can be found. As a result, service connection hinges on whether the Veteran suffered an in-service injury or event to support the June 2017 nexus opinion as stated. While service treatment records are devoid of issues specific to the current cervical spine disability, the Board has weighed the Veteran's lay contentions that he often suffered trauma to the head and neck through the course of his duties, but did not seek medical attention. In consideration of the nature of the Veteran's over 20 years of service that included a significant period spent as an aircraft maintenance and ordnance technician, the Board shall concede such in-service injuries as at least as likely as not to have occurred. The record thus presents evidence of a current cervical spine disability, a conceded fact of in-service injury, and medical evidence linking to the current disability to service. Accordingly, service connection for a cervical spine disability is granted. ORDER Entitlement to a disability rating in excess of 40 percent for a lumbar spine disability from December 1, 2008, is denied. Entitlement to a separate compensable rating of 20 percent, but no higher, for neurological abnormality of the left lower extremity is granted . Entitlement to service connection for a cervical spine disability is granted. REMAND At the June 2017 Board hearing, the Veteran's representative alleged that the Veteran's service-connected right shoulder dislocation residuals had worsened since the Veteran's last examination on December 2009. As the Veteran has claimed right upper extremity radiculopathy as a separate compensable manifestation of his now service-connected cervical spine disability, and such radiculopathy may produce overlapping symptoms of the Veteran's right shoulder dislocation residuals, VA must arrange a new examination or examinations to assess the current nature and severity of the Veteran's right shoulder disability and claimed right upper extremity radiculopathy. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file any outstanding VA or private medical records. Take appropriate efforts to obtain any records identified by the Veteran or otherwise. 2. Schedule the Veteran for a VA nerve and musculoskeletal examinations to determine the current nature and severity of his service-connected right shoulder dislocation residuals and claimed right upper extremity radiculopathy. The examiner should review the Veteran's claims file in conjunction with the examination, to include this Remand. 3. After completion of the above, and any other development deemed necessary, readjudicate the claims on appeal. If the benefits sought remain denied, furnish a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs