Citation Nr: 21005241 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-44 493 DATE: January 29, 2021 ORDER Entitlement to service connection for residuals of neck injury is denied. Entitlement to service connection for residuals of back injury is denied. Entitlement to service connection for radiculopathy in the extremities is denied. FINDINGS OF FACT 1. The Veteran’s residuals of neck injury are not a result of his military service. 2. The Veteran’s lumbar spine disability is not a result of his miliary service. 3. The Veteran’s bilateral radiculopathy of the lower extremities was not shown in service or for many years thereafter, and is not otherwise etiologically related to active duty service, including as secondary to his back disorder. 4. The Veteran’s peripheral neuropathy of the bilateral upper extremities was not shown in service or for many years thereafter, is not otherwise etiologically related to active duty service, including as secondary to his back disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of neck injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for residuals of back injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for radiculopathy of extremities have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from March 1974 to November 1989. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 and June 2017 Regional Office (RO) rating decisions. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for residuals of neck injury 2. Entitlement to service connection for residuals of back injury The Veteran contends that his cervical/neck and back disability began during military service as a result of falling on board a ship. The Board notes that the Veteran’s cervical spine arthritis and lumbar spine arthritis was first demonstrated many years after his discharge from service, and, as such, presumptive service connection for arthritis is not applicable and will not be considered herein. 38 C.F.R. § 3.307, 3.309. 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 related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a cervical spine and lumbar spine disability, and, evidence shows that the Veteran did experience an accident involving a fall while on board a ship during service, the preponderance of the evidence weighs against finding that the Veteran’s current cervical spine and lumbar spine disability began during service or is otherwise related to an in-service injury, event, or disease, including that in-service accident. 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). Service treatment records show that the Veteran reported an in-service accident in which he fell while on board ship and landed and his hurt coccyx in January 1989. The in-service treatment record shows that the Veteran reported dull pain to the lower area of his back and weakness and tingling in his legs. The treating physician noted slight tenderness to paraspinal area of lumbar region. Additionally, he noted that the Veteran was able to bend forward and side to side and had a negative straight leg raise test, with increased discomfort. Indeed, there is no evidence of any complaints, symptoms, or treatment of his neck at any time during service, including following the reported in-service accident. Moreover, the Veteran’s separation examination in October 1989 was silent for complaints of back or neck pain or arthritis. The first evidence of a cervical spine and lumbar spine disability was not until 2012, which the Board notes is more than 23 years after military service. In fact, the Veteran reported in a September 2019 VA examination that he developed intermittent neck pain while he was on active duty but does not recall specific event, injury, or illness. Therefore, continuous symptoms have not been shown based on the clinical evidence of record. While the Veteran is competent to report having experienced symptoms involving the neck and low back during or since service, the Board finds that service connection cannot be granted purely based on any assertions of continuous symptoms since active duty. Specifically, he did not report neck symptoms during service, including upon separation examination, or for many years thereafter. Moreover, it is crucially important that he was specifically examined at separation from active duty in October 1989, but did not mention any back or neck disorder. The fact that he was given the explicit opportunity to discuss such disorders and did not, despite mentioning other disorders at that time, undermines the credibility of any statements that he has had symptoms since active duty. Next, the evidence also does not indicate that the Veteran’s back and neck disorders are otherwise related to service. Specifically, the Veteran underwent a VA examination in July 2016 for his lumbar spine disability. The Veteran reported that he slipped on grease while on deck and fell directly on his lower back. He further reported symptoms of weakness and tingling to his legs. However, the Veteran did not report flare-ups. Upon examination, the Veteran exhibited forward flexion of 10 degrees, extension of 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right rotation to 20 degrees, and left rotation to 10 degrees. The examiner noted pain on all ranges of motion and functional loss and range of motion after three repetitions. The Veteran exhibited 4/5 muscle strength, no atrophy, hypoactive reflexes on his left knee and ankle, decreased sensation in his lower leg/ankle and absent in foot toes right side. Additionally, the Veteran’s straight leg raise test was positive. However, the examiner opined that the Veteran’s lumbar spine disability was less likely than not a result of his January 1989 back injury sustained while in the military. In support of this opinion, the examiner stated that the Veteran’s service medical records show a sacral contusion dated January 23, 1989. The event was acute and treatment and there was no other documentation to support a chronic condition. The next documentation to support back complaints was in 2012, which is a 23-year gap in care. Therefore, the examiner concluded that a nexus has not been established. The Veteran underwent an additional VA examination in September 2019, where he again reported that he fell while onboard a ship and continued to have intermittent pain. He further reported that he was evaluated a few times for pain, but he always returned to duty and was not referred to a specialist or treated because his pain would resolve without issues. The Veteran symptoms included flare-ups and increasing pain and stiffness in his lower back. Upon examination, he exhibited forward flexion of 50 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left rotation to 20 degrees. He exhibited 4/5 muscle strength in the ankle and toe, no atrophy, hypoactive reflexes, and decreased sensory examination of the right and left foot and toes. The examiner opined that the Veteran’s coccyx contusion was at least as likely as not caused by military service. However, the examiner again opined that the Veteran’s current condition of the back is not a progression of the coccyx contusion. In support of this opinion, the examiner stated that there is a 23-year time period from separation from active duty in the relationship to injury of coccyx contusion, and that the Veteran’s back condition was diagnosed in 2012 and was not diagnosed while on active duty. Also, Veteran’s civilian profession of IT specialist and security were career’s that the Veteran reported as physically demanding which would proximately cause Veteran’s current back conditions/pathology. Therefore, it is less likely than not that the claimed resolved coccyx contusion directly caused Veteran’s current back conditions. At that same time, the Veteran underwent a VA examination for his cervical spine disability. The Veteran was diagnosed with degenerative arthritis of the cervical spine and spinal cervical stenosis. The Veteran reported that he developed intermittent neck pain while on active duty, but does not recall a specific event, injury, or illness. Additionally, he reported that he continued to have intermittent pain in the area but never had symptoms evaluated by medical while on active duty due to resolution of pain with rest and conservative measures. Further, he reports that the pain was intermittent and would come and go with over-use or extreme heavy physical duty and did not become until around 2010-2011. As noted above, the Veteran’s civilian profession was an IT specialist which required him to pull heavy cables and lines which caused excessive wear and tear on his lower back and neck. The Veteran stated seeking medical care when the pain was constant and severe in back and neck (reported around 2011-2012). Upon examination, the Veteran reported increasing pain and stiffness with overuse. He exhibited range of motion of flexion of 30 degrees, extension of 30 degrees, right and left lateral flexion of 40 degrees, and right and left rotation of 60 degrees. The examiner found that the Veteran exhibited no guarding, muscle spasm, and had normal muscle strength in all areas except wrist flexion and extension. The examination was conducted during a flare-up. The examiner noted that pain, weakness, fatigue, and incoordination does not significantly limit his functional ability. The examiner opined that the Veteran’s cervical spine disability was less likely than not a result of his military service. In support of this opinion, the examiner stated that the medical evidence is silent for diagnosis of a neck condition/pathology while on active duty military service (VBMS-STR’s). Additionally, the medical evidence is silent while on active duty for concurrent treatments, diagnosis, diagnostics, or continued medical care to establish a pattern of disability in claimed neck. Therefore, the claimed neck condition was less likely than not incurred or caused by in-service event, injury, or illness. The Board acknowledges the January 2018 private opinion submitted by the Veteran in support of his claim. The private physician opined that it was least as likely as not that the Veteran’s lumbar spine is directly related to his in-service injuries. The physician stated that the Veteran’s back disability developed as a result of three different in-service injuries and has increased in severity over the years as evidenced by medical records. Regarding the Veteran’s cervical spine disability, the private physician also opined that it was at least as likely as not related to in service injury. However, the private physician does not discuss the Veteran’s statements that his civilian profession as an IT specialist required him to pull heavy cables and lines which caused excessive wear and tear on his lower back and neck. Therefore, the Board gives more probative value to the VA examiners who reviewed the Veteran’s medical records, examined the Veteran, and provided rationale for their opinions. Given the lack of competent evidence in support of the claim, the evidence is against a finding of a nexus between the Veteran’s current cervical spine/neck and lumbar spine disabilities and in-service accident or injury. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for radiculopathy of the sciatic nerve of the right lower extremity (claimed as peripheral neuropathy of the bilateral lower extremities), to include as secondary to residuals of back injury 4. Entitlement to service connection for radiculopathy of the sciatic nerve of the left lower extremity (claimed as peripheral neuropathy of the bilateral lower extremities), to include as secondary to residuals of back injury The Veteran is claiming entitlement to service connection for radiculopathy of the sciatic nerve of the bilateral lower extremities. Specifically, the Veteran contends that his radiculopathy is secondary to his current back disorder. First, the Board finds that the Veteran’s service treatment records fail to establish that his radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity were incurred in or are related to his active duty service. Initially, his service treatment records do not reflect that he reported symptoms of, received treatment for, or was diagnosed with bilateral radiculopathy of the lower extremities. Notably, the report from the Veteran’s October 1989 separation examination shows that Veterans lower extremities were normal, and no radiculopathy was noted. The post-service evidence also does not indicate that the Veteran has experienced continuous symptoms related to his bilateral radiculopathy of the lower extremities. Indeed, the objective medical evidence does not demonstrate any symptoms of or treatment for bilateral radiculopathy of the lower extremities until 2012, more than 23 years after his separation from service. Therefore, continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307 (a)(3). The Board acknowledges the statements from the Veteran regarding the history of symptoms of his bilateral radiculopathy of the lower extremities. While he is competent to report that he experienced symptoms, including numbness and tingling in his feet, he is not competent to provide a diagnosis or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent that he asserts that his bilateral radiculopathy of his lower extremities has persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not probative in establishing the nexus element. As an initial matter, the gap of more than 23 years between his separation from service and treatment for symptoms of radiculopathy weighs against his claim. Moreover, the report from his October 1989 separation exam contradicts his assertion that symptoms of radiculopathy have persisted since service because the examining physician evaluated his lower extremities as normal. Therefore, there is insufficient evidence of continuous symptoms such that service connection could be warranted on this basis. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, there is not sufficient evidence in the medical records to demonstrate a nexus between his active service and his current bilateral radiculopathy of the lower extremities. Indeed, there is no objective medical evidence linking these disorders to his active duty service. Specifically, the Veteran underwent a VA examination in September 2019. The Veteran received a diagnosis of radiculopathy in 2012. The Veteran reported that he developed numbness and tingling in his hands and feet overtime with problems in his back and neck. The examiner noted mild intermittent pain in the Veteran’s lower extremities, severe paresthesias in his lower extremities, and mild numbness in his lower extremities. The Veteran exhibited 4/5 muscle strength in the bilateral ankles and decreased senses in the foot and toes. Additionally, the examiner noted mild incomplete paralysis of the sciatic nerve. The examiner opined that the Veteran’s radiculopathy of the lower extremities is less likely than not proximately incurred by claimed non-service connected back condition as a secondary condition may not be connected in the absence of a primary or direct service condition to which it relates. Finally, to the extent that the Veteran asserts that the bilateral radiculopathy of his lower extremities is secondary to his back disorder, the Board notes that it has found that service connection for his back disorder is not warranted. Given that service connection cannot be granted as secondary to a nonservice-connected condition, there is no basis for a claim that the radiculopathy of his left and right lower extremities is secondary to his back disorder. See 38 C.F.R. § 3.310. The Board notes the January 2018 private opinion that the Veteran’s bilateral radiculopathy of the lower extremities is at least likely as not developed subsequent to the Veteran’s lumbar disc disease. However, as discussed above, the Veteran is not currently service connected for his back condition. Therefore, secondary service connection cannot be established. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his bilateral radiculopathy of his lower extremities to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his bilateral radiculopathy of his lower extremities. See Jandreau, 492 F.3d at 1377, n.4. Although the Veteran can provide competent testimony regarding symptoms, the disorders on appeal are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his disorders are related to service or that his radiculopathy is related to his back disorder, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claims 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. 5. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to residuals of back injury 6. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to residuals of back injury The Veteran is seeking entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. However, the Board finds that service connection is not warranted. Service treatment records do not reflect complaints of, treatment for, or a diagnosis related to bilateral peripheral neuropathy. Significantly, his separation examination was absent of any complaints of or observed symptoms related to peripheral neuropathy. In fact, the post-service evidence does not reflect symptoms related to the disorders for many years after the Veteran left active duty service. The earliest medical evidence of peripheral neuropathy was initially noted in 2012. As the Veteran’s bilateral peripheral neuropathy did not start during service or continue since the time of service, continuity is not established based on the clinical evidence. As part of this claim, the Board recognizes the statements regarding the Veteran’s history of symptoms. In this regard, while the Veteran is not competent diagnose bilateral peripheral neuropathy, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he and others are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board acknowledges the statements from the Veteran regarding the history of symptoms of his bilateral peripheral neuropathy of the upper extremities. Specifically, the Veteran stated that developed numbness and tingling overtime. While he is competent to report that he experienced symptoms, including numbness and tingling in his hands, he is not competent to provide a diagnosis or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent that he asserts that his bilateral peripheral neuropathy of the upper extremities has persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not probative in establishing the nexus element. As an initial matter, the gap of more than 23 years between his separation from service and treatment for symptoms of peripheral neuropathy weighs against his claim. Moreover, the report from his October 1989 separation exam contradicts his assertion that symptoms of peripheral neuropathy have persisted since service because the examining physician evaluated his upper extremities as normal. Therefore, there is insufficient evidence of continuous symptoms such that service connection could be warranted on this basis. Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed disability and either his active duty or his service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed disorders to active duty, despite his contentions to the contrary. The Board notes that there are no treatment records establishing that the Veteran’s bilateral peripheral neuropathy of the upper extremities, which occurred after the end of service, are related to active duty. Specifically, the Veteran underwent a VA examination in September 2019. The examiner noted a diagnosis of peripheral neuropathy in 2012. The Veteran stated he developed numbness and tingling in his hands overtime with problems with his neck. He further stated he was diagnosed with neuropathy after EMG studies conducted in 2012. Upon examination, the Veteran exhibited mild intermittent pain in his upper extremities, moderate paresthesias in his upper extremities, and mild numbness in his upper extremities. Additionally, he exhibited mild incomplete paralysis in his upper radicular group. The examiner opined that the Veteran’s peripheral neuropathy is less likely than not proximately incurred by claimed non-service connected back condition as a secondary condition may not be connected in the absence of a primary or direct service condition to which it relates. The Board recognizes the Veteran’s January 2018 private physician’s opinion that it is as least as likely as not that Veteran’s peripheral neuropathy has developed subsequent to the in-service injuries of the cervical spine. The Veteran’s bilateral peripheral neuropathy is related to the changes that have developed about the cervical spine and has affected the peripheral nerves of the upper extremities. However, as discussed above, the Veteran is not currently service-connected for a back condition, therefore secondary-service connection cannot be established. The Board finds that the weight of the competent evidence does not attribute the peripheral neuropathy of the bilateral upper extremities to military service despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b) (2012). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vample, Associate Counsel