Citation Nr: 21003845 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-38 252 DATE: January 25, 2021 ISSUES 1. Entitlement to service connection for residuals of a sprained cervical vertebrae with brachial plexus syndrome, status post cervical discectomy at C5-6 (cervical spine disability). 2. Entitlement to service connection for neuropathy of the upper extremities (to include brachial plexus syndrome of the right upper extremity), to include as secondary to the service-connected diabetes (DM). 3. Entitlement to service connection for peripheral neuropathy the lower extremities, claimed as secondary to in-service herbicide exposure, to include as secondary to the service-connected DM. ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for neuropathy of the upper extremities (to include brachial plexus syndrome of the right upper extremity), to include as secondary to the service-connected DM is granted. Entitlement to service connection for peripheral neuropathy the lower extremities, claimed as secondary to in-service herbicide exposure, to include as secondary to the service-connected DM is granted. FINDINGS OF FACT 1. A cervical spine disability was not shown in service or for many years thereafter, and has not been shown to be related to service. 2. The evidence is at least in equipoise as to whether the Veteran’s neuropathy of the upper extremities (to include brachial plexus syndrome of the right upper extremity) is aggravated by his service-connected DM. 3. The evidence is at least in equipoise as to whether the Veteran’s peripheral neuropathy the lower extremities is aggravated by his service-connected DM. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2017). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for neuropathy of the upper extremities (to include brachial plexus syndrome of the right upper extremity) have been met by way of aggravation. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for peripheral neuropathy the lower extremities have been met by way of aggravation. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to November 1966. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Togus Regional Office in Augusta, Maine. Jurisdiction of the claims file remains, however, with the Regional Office (RO) in Cleveland, Ohio. In July 2016 the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of his testimony is associated with the record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2016). 38 U.S.C. § 7107 (a)(2) (West 2014). Historically, in an October 2016 Board decision and remand, the Board reopened previously denied claims of service connection for a cervical spine disability with brachial plexus syndrome, and neuropathy of the upper extremities; and, remanded those reopened claims along with the claim of service connection for peripheral neuropathy of the lower extremities. When this case was before the Board in August 2017, the issues on appeal were denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2019 Memorandum Decision, the Court vacated the Board’s August 2017 decision, remanding the issues to the Board for additional proceedings consistent with the Memorandum Decision. When this case was most recently before the Board in November 2019, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Certain chronic diseases, to include arthritis, may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty. 38 C.F.R. § 3.309. However, the evidence does not show nor does the Veteran argue that his cervical spondylosis or degenerative disc disease manifested within one year of separation from active duty. Therefore, service connection on a presumptive basis is not warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When positive and negative evidence approximately balance regarding the merits of an issue material to determining the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b). The Veteran seeks service connection for residuals of an in-service cervical spine injury, to include brachial plexus syndrome; and, peripheral neuropathy of the upper extremities, to include as secondary to in-service herbicide exposure and/or the service-connected DM. The Veteran also seeks service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to in-service herbicide exposure and/or the service-connected DM. VA treatment records show diagnoses to include cervical spondylosis/degenerative disc disease, neuropathy of the upper extremities (to include brachial plexus syndrome of the right upper extremity), and peripheral neuropathy the lower extremities. Service treatment records show that the Veteran was treated for neck pain following a motor vehicle accident (MVA) in February 1965. Moreover, the Veteran is service-connected for DM. Therefore, Hickson elements (1) and (2) are met. An April 2009 VA examination report reflects complaints of numbness and tingling in the hands and feet, with his feet feeling like fire. The examiner opined that the Veteran’s peripheral neuropathy pre-dated his DM diagnosis, and therefore was not caused by the DM. The examiner opined that the Veteran’s symptoms of neuropathy were not shown until 1995 and therefore more likely secondary to cervical and lumbar pathology. In response to the Board’s remand, a VA-contracted opinion was received in December 2019 in which the examiner stated that all available medical records were reviewed to include service treatment records, remand and hearing documents, and the Veteran’s statements. In pertinent part, the examiner answered in the affirmative as to whether the Veteran’s neuropathy of the upper extremities and peripheral neuropathy the lower extremities were at least as likely as not aggravated beyond their natural progression by the service-connected condition. The examiner stated that the Veteran had an established diagnosis of DM, and this condition was known to damage peripheral nerves and result in neuropathy. The examiner stated that considering this, it was likely that the Veteran’s diagnosis of DM aggravated his existing upper extremity neuropathy. The examiner also stated that peripheral neuropathy was a known complication of diabetes; with that under consideration it was possible that the DM aggravated the already existent lower extremity neuropathy. In regards to the neuropathy of the upper extremities (to include brachial plexus syndrome of the right upper extremity), and peripheral neuropathy the lower extremities, the Board acknowledges the April 2009 opinion that that the Veteran’s peripheral neuropathy pre-dated his DM diagnosis, and therefore was not caused by the DM. However, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. In this case, the Board finds the December 2019 opinions to be of great probative value. Indeed, the examiner considered the Veteran’s symptoms, the claims file, and clinical medical evidence before providing positive etiological opinions in regards to aggravation. To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for neuropathy of the upper extremities (to include brachial plexus syndrome of the right upper extremity) and peripheral neuropathy the lower extremities as secondary to the service-connected DM by way of aggravation. In regards to the claim for entitlement to service connection for a cervical spine disability, the December 2019 examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that per the service treatment records, the Veteran sustained injury to the cervical spine during a motor vehicle accident during active duty service in February 1965 and was diagnosed with a sprain of the cervical vertebrae. The examiner stated that after no improvement in symptoms he was admitted to the hospital for treatment; imaging at that time was negative (normal). It was noted that there was no sensory or motor deficits, and he was treated with traction. The Veteran was discharged from the hospital with no complaints of neck pain or neurological symptoms. The next documented complaint of neck pain was 1991, approximately 25 years after the injury. Imaging in 1991 revealed mild spondylosis, and the Veteran was diagnosed with herniated cervical disc in 1994 and underwent a cervical fusion in 1995. The examiner stated that the Veteran’s cervical spine injury during service was a sprain, as evidenced by documented physical examinations, imaging, and hospital treatment. The examiner stated that per medical records, the condition improved and resolved with treatment. The examiner stated that cervical spine strain consisted of injury to the ligaments and musculature. The examiner stated that this type of injury did not progress or lead to spondylosis, degenerative disc disease, or herniated disc, and a nexus was not established. In this case, as to the issue of the etiology of the Veteran’s cervical spine disability, the Board finds that the VA examiner made it clear that it was her opinion that the Veteran’s cervical spine disability was not related to service. To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo, 25 Vet. App. 286, 294. Here, the examiner made it clear that a nexus was not established. Accordingly, the Board concludes that the VA opinion carries significant weight. No other competent opinion providing a positive nexus between service and the Veteran’s cervical spine disability has been presented. The Board finds the to the VA examiner’s opinions are competent and probative as they were rendered after review of the Veteran’s history and consideration of medical principles by licensed medical professionals. Therefore, a nexus between service and the Veteran’s cervical spine disability cannot be established, and the criteria of Hickson element (3) are not met. The Board acknowledges that the Veteran argued in September 2020 that the December 2019 examiner did not comply with the remand instructions because his lay statements as to onset and continuity of symptomatology were not considered. However, the Board does not find this argument persuasive as the December 2019 examiner stated that she reviewed the service treatment records, remand and hearing documents, and the Veteran statements. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his cervical spine disability is related to service. Moreover, the Board acknowledges lay statements prepared by the Veteran's brother and father. However, there is nothing in the record to suggest that the Veteran or his family members have the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., Counsel 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.