Citation Nr: 20003199 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 14-36 265 DATE: January 15, 2020 ORDER Entitlement to service connection for a cervical back disorder, to include as secondary to his service-connected lumbar spine disorder, is denied REMANDED A rating in excess of 20 percent for a lumbar spine disorder, is remanded. A rating in excess of 20 percent for radiculopathy of the right lower extremity, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), is remanded. FINDING OF FACT The preponderance of the evidence is against finding that cervical back disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for cervical back disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to January 1980. In November 2019, the Veteran testified via videoconference before the undersigned Veteran’s Law Judge. A hearing transcript is associated with the record. 1. Entitlement to service connection for a cervical back condition The Veteran asserts that he has a diagnosis of a cervical back disorder that is related to active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not etiologically related to, including aggravated by, an in-service injury, event, or disease, to include as secondary to and/or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309, 3.385. As a preliminary matter, the Board acknowledges that the Veteran was not provided with a VA examination for his service-connection cervical back disorder claim. However, the Board finds that a VA examination is not required here because competent evidence has not been presented indicating that the existence of a disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s active service. Additionally, there is no evidence to show that the claimed disability occurred in service or is associated with service, nor See McClendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to a cervical spine disorder, the Board concludes that while the Veteran has a current diagnosis of this disorder, the preponderance of the evidence weighs against finding that this disorder began during service or is otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309, 3.385. In this case, while the service treatment records note multiple incidents of lumbar spine pain, there is no indication of any pathology to the cervical spine. Indeed, the post-service medical evidence does not demonstrate any symptoms, manifestations, or a diagnosis related to a cervical back disorder until approximately 2016. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). Moreover, while the Board recognizes that while the Veteran is competent to report that she experienced certain symptoms relating to her disorders on appeal, he has not asserted that her symptoms have been continuous since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Next, although the evidence is not sufficient to demonstrate the Veteran had symptoms of his disorder since service, a relationship between his symptoms and service or another service-connected disorder may nonetheless be established by other competent evidence, including medical evidence and opinions. In this case, however, the competent evidence fails to establish a relationship between active duty or another service-connected disorder and the Veteran’s current symptoms. Specifically, in addition to the fact that the Veteran’s private treatment records, including from November 2016, indicate that the onset of a spine disorder was not for 25 years after service, he has also not provided any clinical evidence that this disorder is related to active duty or to a service-connected disorder. Moreover, no treating physician has opined that such a relationship exists. As part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his disorder and active service. Nevertheless, while she is competent to provide testimony regarding observable symptomatology such as pain and limitation of motion, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorder is found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disorder The Veteran testified that his lumbar spine symptoms have become worse since his last VA examination in May 2017. Specifically, the Veteran noted that he has been bedridden at a minimum of four times within the past 6 months. He further expressed, experiencing constant intense pain which prevents him from being able to get out of bed or even bend to tie his shoes. The medical evidence, including the August 2016 treatment records, in conjunction with the Veteran’s credible statements, suggests that his service-connected back disorder has worsened since his last VA examination in May 2017. Therefore, the Veteran should be afforded a new examination to accurately assess the current level of impairment of this disability. See Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Cf. VAOPGCPREC 11-95 (April 7, 1995).   3. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity The Veteran’s most recent May 2017 VA examination for his spine stated that the Veteran did not have radiculopathy and failed to assess the severity of the Veteran’s lower extremity radiculopathy. The Board finds that this VA examination was inadequate, given that the Veteran has a diagnosis of bilateral lower extremity radiculopathy. Therefore, a new VA examination is warranted based upon the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) As for the Veteran’s claim for TDIU, the Board is unable to adjudicate this claim until the above development is completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain all treatment records that are available from the VA Medical Center in Waco, Texas, as well as from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar back disorder and bilateral radiculopathy disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner should test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner should attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements.   If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. McGee, Associate Counsel