Citation Nr: 1816111 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-21 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a separate compensable rating for bilateral upper extremity cervical radiculopathy. REPRESENTATION Veteran represented by: Georgia Department of Veteran Service ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active service from July to November 1989, December 1997 to June 1998, and August 1998 to March 2010, with a prior period of active duty for training (ACDUTRA) from February to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction was later transferred to the RO in Atlanta, Georgia. The August 2010 rating decision granted service connection for a cervical spine disability, rated as 10 percent disabling. An April 2014 rating decision increased the rating to 20 percent. This case was previously before the Board in March 2016 when the issue of entitlement for a separate compensable rating for cervical spine radiculopathy was raised by the record and remanded for additional development. As that development has been substantially accomplished, it has now been returned for further appellate action. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT A current diagnosis of cervical radiculopathy is not shown. CONCLUSION OF LAW Cervical radiculopathy was not incurred in or aggravated by active service, and is not secondary to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current chronic 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: (i) Where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309(a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately question and there are continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309(a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) 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. Service connection may also be warranted 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 prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that he has cervical radiculopathy as a result of his active service. Specifically, it is asserted that he developed cervical radiculopathy as a result of his service-connected cervical strain disability. As an initial matter, the record does not demonstrate and the Veteran does not claim an onset of cervical radiculopathy while in active service. Conversely, cervical strain, for which he is already service connected, is very well documented in service. Service treatment records (STRs) show that he complained of both neck and back pain in service and was diagnosed with cervicalgia. STRs are otherwise silent for any complaints for or diagnoses of cervical radiculopathy. Shortly after his discharge, in a May 2010 VA examination, the Veteran complained of pain and tingling, stiffness, fatigue, spasms, decreased motion, numbness and paresthesia. The examiner noted that there was no evidence of radiating pain on movement and joint function was not limited by pain. Upon neurological examination, cranial nerves I-XII were normal and coordination was within normal limits. A specific neurological examination of the upper extremities found that motor function was within normal limits, and sensory examinations to pinprick, touch, position, vibration and temperature revealed intact results bilaterally. The examiner opined that there were no cervical sensory deficits, no motor weakness, no signs of pathologic reflexes in the upper extremities, and no signs of cervical intervertebral disc syndrome with chronic or permanent nerve root involvement. An MRI of the cervical spine conducted later that month also revealed an impression of a negative cervical spine, with good alignment throughout with disc spaces preserved and vertebral body height maintained. Treatment notes revealed that the Veteran sought further treatment for pain in October 2010. A neurologic examination revealed no focal neurological deficits. In March 2011, a private treatment provider examined the Veteran for cervical spine pain with radiculopathy. The Veteran complained of neck pain which had gotten progressively worse. He also complained of popping of the neck with movement and numbness in both arms with exertion. He rated his pain as 7 out of 10 in intensity. The examiner remarked that the Veteran had a normal cervical lordotic curve, with tenderness upon palpation. Further noted was decreased flexion, extension, rotation, and limited range of motion. The examiner opined that magnetic resonance imaging (MRI) with electromyography (EMG), showed right side, chronic C7 cervical radiculopathy. In January 2014, further imaging was taken of the Veteran's cervical spine. This revealed degenerative disc height narrowing at C5-6 and C6-7. No scoliosis was noted. The treatment provider noted a final impression of intervertebral foraminal narrowing at C4-5 and C5-6, with disc height narrowing at C5-6 and C6-7. No neurological symptomatology was observed or noted. In January 2014, the Veteran was afforded another VA examination. The Veteran described constant neck pain with regular activities. The examiner diagnosed degenerative joint disease (DJD) of the cervical spine. A sensory examination revealed normal upper extremities, and the examiner stated that the Veteran did not have radiculopathy, neurologic abnormalities, or any signs or symptoms due to radiculopathy. In a May 2016 examination, the Veteran reported feelings of a pinched neck, tingling through his pinky fingers to his arms, with the right side being more frequent and worst around the elbow areas. He also stated that exercising used to exacerbate it, but now just sitting at a computer working worsened his symptoms. The examiner noted moderate intermittent pain, moderate parasthesias and numbness, but no upper extremity pain. A sensory examination revealed normal upper extremities, without trophic changes. The Veteran's gait, as well as his bilateral radial nerves, median nerves, and ulnar nerves were all found to be normal. An EMG study found that the Veteran's bilateral upper extremities were normal. The examiner noted that there was no evidence of cervical radiculopathy of the upper extremities, no evidence of peripheral nerve mononeuropathy bilaterally, no carpal tunnel syndrome, and no ulnar neuropathy. The final impression noted was that the Veteran had normal bilateral upper extremities and the examiner noted that no peripheral nerve condition or peripheral neuropathy was found. The examiner then opined that the cervical radiculopathy was less likely than not a result of the Veteran's active service, or service-connected condition. As a rational, the examiner stated that the Veteran had neck pain and bilateral arm numbness in service and that the MRI conducted found cervical DJD. Post-service, the Veteran had an EMG in 2011 which showed possible right side C7 cervical radiculopathy. The examiner opined that this was an erroneous interpretation of the EMG study as it did not fit the clinical complaints of bilateral upper extremity numbness and radiographic findings of cervical DJD at C5-6 and C6-7. The examiner went on to state that the Veteran's most recent EMG study in May 2016 was normal, but that he did have a trigger point which would explain his referred pain in the upper extremities. As a result, the examiner opined that the Veteran did not have cervical radiculopathy of the bilateral upper extremities, and his cervical spine disability did not result in neurological manifestations. After a full review of the record, the preponderance evidence weights against a diagnosis of bilateral cervical spine radiculopathy. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110 ; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the present case, while the Veteran has received VA medical treatment for many years, these records are negative for any diagnoses of the claimed disorder. While the Board acknowledges the single notation of the presence of "possible" radiculopathy by a private examiner, this statement is speculative and insufficient to establish a medical nexus. Further, a subsequent examination undertake specifically to address the issue found this diagnosis to be in error. While the Veteran has been afforded numerous VA examinations to address the presence of bilateral cervical radiculopathy, these examinations found no diagnosis. The Board notes that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McLain v. Nicholson, 21 Vet. App. 319 (2007). Here, however, the evidence is devoid of a competent and credible diagnosis of the claimed disorder for the entire pendency of this appeal. The Board acknowledges the Veteran's claims and beliefs that he has bilateral upper extremity cervical radiculopathy. In the present case, however, diagnosis of the claimed disorder is not subject to lay observation and this disorder has not been properly diagnosed by a medical expert. While the Veteran is competent to testify regarding such observable symptomatology as pain or numbness, he is not competent to render a diagnosis of an underlying disability. Likewise, he lacks the necessary medical expertise to diagnose cervical radiculopathy, as this involves processes internal to the body and not susceptible lay observation. Furthermore, his assertions of radicular symptomatology have been properly addressed as a trigger point disorder by the VA examiner in May 2016 and cervical radiculopathy has been ruled out as a possible diagnosis by three different clinical EMG tests. In the absence of a current diagnosis of bilateral upper extremity cervical radiculopathy, service connection for these disorders must be denied. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine 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). ORDER A separate compensable rating for bilateral upper extremity cervical radiculopathy is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs