Citation Nr: 20073774 Decision Date: 11/17/20 Archive Date: 11/17/20 DOCKET NO. 14-20 513 DATE: November 17, 2020 ORDER Entitlement to an evaluation in excess of 30 percent for Arnold Chiari malformation type I with syringomyelia is denied. Entitlement to service connection for a cervical spine disability, to include cervical radiculopathy is denied. FINDINGS OF FACT 1. The Veteran has been assigned the minimum rating for syringomyelia based on subjective symptoms of neck and shoulder pain and stiffness not due to other pathology. No separate ratable symptoms have otherwise been identified. 2. The objective medical evidence shows that any cervical spine disability, to include cervical radiculopathy is not caused by an event, injury, or illness during active service, or secondary to service-connected Arnold Chiari malformation type I with syringomyelia. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for syringomyelia have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, Diagnostic Code 8024. 2. The criteria for service connection for cervical spine disability, to include cervical radiculopathy have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to July 2011. A Travel Board of Veterans’ Appeals (Board) hearing was held in February 2015; a transcript is of record. The Board remanded these matters in September 2015, January 2018, and March 2019 for further evidentiary development. The case has now returned to the Board for appellate review. Most recently while in Remand status, a 30 percent rating was assigned for Arnold-Chiari malformation with syringomyelia was granted, effective August 1, 2011. The issue of entitlement to a further increased rating remains on appeal. 1. Entitlement to an evaluation in excess of 30 percent for Arnold Chiari malformation type I with syringomyelia Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the appeal stems from a request for higher rating following the award of service connection, evaluation of the medical evidence pertinent to the original claim, and consideration of the appropriateness of staged rating (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is seeking entitlement to an evaluation in excess of 30 percent for Arnold Chiari malformation type I with syringomyelia. The Veteran contends that the he is constantly adjusting his neck and shoulder and that his primary symptoms include generalized pain all over his body, some urinary issues, and headaches. See February 2015 Board Hearing Transcript. The Board notes that the Veteran is service connected for multiple disabilities, to include, obstructive sleep apnea, migraine headaches, posttraumatic stress disorder (PTSD), plantar fasciitis, right shoulder degenerative arthritis, tinnitus, bilateral varicose veins, gastroesophageal reflux disease, temporomandibular joint dysfunction, bilateral achilles tendonitis, thoracic and lumbar degenerative arthritis, bilateral knee degenerative arthritis, peripheral vestibular disorder, septoplasty with turbinate reduction, status post inguinal hernia surgical repair, erectile disorder, and carpal tunnel right upper extremity. Syringomyelia is rated according to Diagnostic Code 8024 and a minimum 30 percent rating is warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8024. The diseases and residuals listed in 38 C.F.R. § 4.124a may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc. are to be especially considered and should be rated by referring to the appropriate bodily system of the rating schedule. 38 C.F.R. § 4.124a. The Note to Diagnostic Code 8024 states: It is required for the minimum ratings for residuals under diagnostic codes 8000-8025, that there be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. 38 C.F.R. § 4.124a. Based on subjective residuals for which no other pathology was found, during Remand development, the 30 percent rating was assigned effective the date of the grant of service connection. Turning to the record, the July 2011 examiner noted the Veteran’s diagnosis of type I Arnold Chiari malformation with the subjective factors as history of syrinx. At the July 2011 VA examination, the Veteran described various symptoms, including but not limited to headaches, numbness of the arm and elbow, tingling of the neck, burning sensation in the feet, mood swings, confusion, fatigue, problems sleeping, dizziness, and urinary urgency problems. In February 2012, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for Arnold-Chiari malformation with syringomyelia and assigned a noncompensable evaluation as the AOJ found that the Veteran did not have ascertainable residuals. A June 2014 private medical treatment assessment notes that it is unlikely that the Veteran’s headache syndrome is related to the Chiari malformation as the headaches are not reliably triggered by position change and the physician could not find any neurological abnormalities consistent with the Chiari malformation. The Board remanded this matter in September 2015 to obtain additional records as the Veteran reported at the Board hearing that he had just been treated by a neurologist. Pursuant to the September 2015 Board remand, the Veteran submitted medical treatment records from his neurologist that noted the Veteran’s complaints of migraines and neck pain and noting that the Veteran’s neck stiffness may be related to the Veteran’s congenital malformation. The Board remanded this matter again in January 2018, finding remand necessary to identify all manifestations of the Veteran’s Arnold-Chiari malformation and to determine the nature and severity of all manifestations. Pursuant to the January 2018 Board remand, the Veteran was afforded a VA examination in September 2018. The September 2018 VA examiner provided that the Veteran was asymptomatic for this condition. The Board remanded this matter again in March 2019, finding the September 2018 examination inadequate for rating purposes as the examiner did not address the Veteran’s subjective symptoms that he reported to the examiner of pain in the neck and right shoulder. Further, the examiner did not provide an opinion as to whether these subjective symptoms are related to the Veteran’s Arnold Chiari malformation. Pursuant to the March 2019 Board remand, a VA opinion was obtained in November 2019. The November 2019 examiner opined that the pain and stiffness in the neck and shoulders could certainly be due to the degenerative disc disease of the cervical spine and to separate the symptoms would be speculative. The June 2020 addendum opinion clarified that imaging data reveals no evidence of chronic cervical disc disease. In an August 2020 rating decision, the AOJ granted an increase in the evaluation of Arnold-Chiari malformation with syringomyelia from noncompensable to 30 percent, effective August 1, 2011. The AOJ noted that the symptoms of pain and stiffness in the neck and shoulder area are applied as subjective residuals in association with the Arnold Chiari malformation. The 30 percent evaluation is the highest schedular rating offered for this disorder in the absence of other identifiable symptoms that are attributed to the disorder. In this case, there are no identifiable separate symptoms, and as noted separate service connection for psychiatric impairment and headaches has been established. Thus, the Board finds that the Veteran was granted the highest disability rating provided for Arnold Chiari malformation, allowed by regulation. 38 C.F.R. § 4.87, Diagnostic Code 8024. Further, the Board finds that the subjective manifestations as provided by the Veteran, are addressed in the Veteran’s other service-connected disorders. In view of the foregoing, the Board denies an increased evaluation higher than the currently assigned 30 percent evaluation for the Veteran’s service-connected Arnold Chiari malformation type I with syringomyelia. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any higher rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 57-58. There are no additional expressly or reasonably raised issues presented on the record. 2. Entitlement to service connection for a cervical spine disability, to include cervical radiculopathy Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic diseases, including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The Veteran is seeking entitlement to service connection for a cervical spine disorder, to include cervical radiculopathy. The Veteran contends that his cervical spine disorder is due to a March 2002 motor vehicle accident (MVA). The Veteran’s service treatment records (STRs) document that he had an MVA in March 2002. He sought treatment for neck pain and neck spasms for the months following the MVA. May 2006 cervical spine Magnetic Resonance Imaging (MRI) results showed a syrinx from C2 to between C3-C4, the Board notes that these cervical spine results have been linked to the Veteran’s service-connected disorder. A March 2007 MRI shows a diagnosis of mild bulging disc. An April 2011 retirement examination shows normal neck on the clinical evaluation, and the Veteran reported recurrent back pain and numbness or tingling but did not specifically indicate neck pain. Regarding a current cervical spine disorder and a nexus, the Veteran was afforded VA examinations in July 2011, January 2016, June 2017, September 2018, November 2019, and June 2020. Additionally, the Veteran’s medical treatment records show that he complained of neck pain post-service. At the July 2011 VA examination, the Veteran reported neck pain since 2001, cervical spine x-ray findings were within normal limits, and the examiner provided that there is no pathology to render a diagnosis for the Veteran’s claimed cervical disorder, to include cervical radiculopathy. Private medical treatment records from February 2014 through December 2014 show that the Veteran complained of neck spasm and contains assessments of cervical spondyloarthritis/facet joint disease and cervicalgia/neck pain. However, a private April 2014 MRI report shows no cervical spine complications. The Board first remanded this matter in September 2015, finding the July 2011 opinion inadequate as the examiner found no cervical diagnoses, however, the Veteran’s medical treatment records show a diagnosis of cervical spondyloarthritis facet joint disease and cervical radiculopathy. The Board remanded to afford the Veteran an adequate etiological opinion reconciling these conflicting diagnoses and addressing the Veteran’s contention that his cervical spine disability may be caused and/or aggravated by his service-connected Arnold Chiari malformation with syringomyelia. Pursuant to the September 2015 Board remand, the Veteran was afforded a VA examination in January 2016. The examiner found no objective evidence of a current cervical spine pathology. No particular rationale was provided. The Veteran was afforded another VA examination in June 2017. The June 2017 examiner provided a cervical spine strain diagnosis and opined that the Veteran’s cervical spine strain is less likely than not related to service or by service-connected Arnold Chiari malformation with syringomyelia. The Board remanded this matter again in January 2018, finding the June 2017 opinion inadequate as the examiner did not provide a complete rationale for the opinion. Pursuant to the January 2018 Board remand, the Veteran was afforded a VA examination in September 2018. The September 2018 examiner noted the March 2007 diagnosis of degenerative disc disease (DDD) cervical spine per imaging incidental finding, no opinion was provided. The Board remanded this matter again in March 2019 to obtain an addendum opinion as the September 2018 examiner did not provide an etiological opinion. Pursuant to the March 2019 Board remand, a VA opinion was obtained in November 2019 with an addendum opinion in June 2020. The November 2019 examiner opined that the Veteran’s degenerative disc disease of the cervical spine is due to his military service. The examiner provided the rationale that this disorder was clearly found on imaging during the Veteran’s military service. The examiner further provided that pain and stiffness in the neck area of shoulder muscles could certainly be due to the degenerative disc disease of the cervical spine. Moreover, the examiner provided that to separate the symptoms due to bony degenerative disease from spinal cord disease would be speculative; records do not support current neurologic dysfunction. An addendum clarification opinion was provided in June 2020. The June 2020 examiner provided that, according to the review of the available military treatment records, “mild disc bulging C5, C7” in 2007 was incidentally found during imaging modality performed for unrelated reason. The examiner further provided that the evidence goes against the presence of permanent disability due to this radiology incidental finding and it likely resolved on its own as evidenced by subsequent imaging data. The examiner noted that it is of common medical knowledge that a bulging disc generally heal on its own over time after nonsurgical treatment. The Board finds this opinion well-reasoned and thoroughly considered the Veteran’s complete medical history and is accordingly afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The Board notes that the only opinion in the record to the contrary is the November 2019 opinion that relied on the incidental finding of DDD to support her opinion. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to the claim of service connection at issue on appeal. Thus, the claim may not be granted. See 38 C.F.R. § 3.303. As the June 2020 examiner reviewed the claims file in conjunction with a telephone interview with the Veteran, and rendered a persuasive medical opinion supported by his professional expertise, the Board finds this opinion to be worth significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s statements and testimony regarding his cervical spine disorder. While the Veteran is competent to address his symptomology, he is not competent to provide a medical nexus opinion regarding this issue. The Veteran is a lay person, so his contentions and opinions are of less probative weight and persuasive value than the unfavorable medical evidence and the June 2020 VA opinion. Additionally, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). For the reasons stated and based on the objective medical evidence, the Board finds that the Veteran’s claimed cervical spine disorder is not caused by an event, injury, or illness during active service. Arthritis or as associated with cervical spine disorder, did not manifest to a compensable degree within one year of separation from active service. Consequently, service connection, direct or presumptive, has not been established for these disorders. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claims, the doctrine is not applicable, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.