Citation Nr: 21063521 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-31 961 DATE: October 14, 2021 ORDER Entitlement to cervical spine degenerative disc disease status post fusion is granted. Entitlement to bilateral upper extremity radiculopathy, claimed as bilateral hand numbness, as secondary to service-connected cervical degenerative disc disease status post fusion, is granted. FINDINGS OF FACT 1. The Veteran's cervical degenerative disc disease, status post fusion, is related to the Veteran's paratrooper jumping activities conducted in-service. 2. The Veteran's bilateral hand numbness is proximately due to his service-connected cervical degenerative disc disease, status post fusion. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical degenerative disc disease, status post fusion, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral upper extremity radiculopathy as secondary to cervical degenerative disc disease are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1985 to June 1988. These matters arise from a Department of Veterans Affairs (VA) Regional Office (RO) February 2015 rating decision denying service connection degenerative disc disease of the cervical spine and service connection for bilateral hand numbness, as secondary to degenerative disc disease of the cervical spine. The Veteran appealed the matters to the Board of Veterans' Appeals (Board), which issued a decision in December 2018 denying the Veteran's claims for service connection for both issues. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Partial Remand (JMPR) in January 2020. In February 2020, the Court issued an Order granting the JMPR, vacating the December 2018 Board decision, and remanding the matters back to the Board for action consistent with the terms of the JMPR. The Board also remanded for the ordered development in its June 2020 decision. The matters now return to the Board for decision. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in the line of duty in active military, naval, or air service. 38 U.S.C. § 1113; 38 C.F.R. § 3.303(a). To establish service connection the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order 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) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may be granted for any disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding a matter of any issue material to the determination of the matter, the benefit of doubt will be given to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (holding that a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to cervical spine degenerative disc disease status post fusion The Veteran contends that his degenerative disc disease of the cervical spine was caused by his military service. Specifically, the Veteran contends that his cervical spine condition was caused by paratrooper jumping activity. The evidence of record establishes that the Veteran has a current diagnosis of degenerative disc disease of the cervical spine, status post fusion. As such, the element of a current disability is met. The evidence of record includes parachuting activities while in-service. There is no specific medical treatment record for a specific traumatic injury, the Board finds the Veteran credible in his accounts of the military activities and duties. Further, medical opinions addressing his cervical spine disability explain the kinds of injuries that can be sustained from multiple high impacts while parachuting. See July 2021 private medical opinion. As such, the in-service component is met. As such, the question before the Board is one of medical nexus. The Veteran has provided three private medical opinions, each providing a positive medical nexus opinion for service connection. The Board finds the most recent, July 2021, private opinion to be most probative on the issue and sufficient for disposing of this matter. The private examiner identifies that he has reviewed the Veteran's pertinent records, medical history, and conducted a physical examination. The July 2021 examiner provides a well-reasoned, probative opinion identifying the underlying facts and reasoning why he believes the Veteran's current degenerative disc disease of the cervical spine is more likely than not associated with the Veteran's military injuries when he was a paratrooper for many years. The examiner accounts for the worsening of symptoms over the long period of time since service, finding that it all originated from in-service injuries. As such, this private opinion accounts for and aligns with the pertinent evidence of record and the Veteran's lay statements. As such, the July 2021 opinion is found sufficient to grant the Veteran's claim. The record also includes a negative March 2021 VA examination of the Veteran's cervical spine and associated May 2021 negative nexus opinion. This opinion is found inadequate as it fails to meet the Court's and Board's remand directives. The examiner failed to address the positive private opinions of record as required by the remand directives. This alone causes the opinion to be inadequate. Further, the examiner relies primarily on the lack of contemporaneous medical evidence between the Veteran's separation and surgery for cervical degenerative disc disease. The examiner acknowledges the Veteran's statements of continued symptoms since service but fails address or account for them. The opinion appears to primarily rely on the date of diagnosis, which is the same date the Veteran had surgery to relieve symptoms. As such, it fails to account for the pertinent evidence of record and to follow the Court's and Board's remand directives. Therefore, the May 2021 nexus opinion is provided no weight. Normally, the duty to assist would dictate remand for an adequate opinion. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand gives the Veteran a right to compliance with the terms of the remand); see also Barr v. Nicholson, 21 Vet. App. 303 (holding that if VA provides an examination when developing a service-connection claim, even if not statutorily obligated to do so, the examination must be adequate, or the veteran must be notified as to why one will not or cannot be provided). In this case, a remand for an additional opinion is not necessary as the record contains sufficient evidence, including adequate positive nexus opinions, on which to grant the Veteran's claim. Based on the foregoing, the Board finds that the probative evidence of record is sufficient to grant the Veteran's claim for service connection for cervical spine degenerative disc disease, status post fusion. 2. Entitlement to bilateral upper extremity radiculopathy, claimed as bilateral hand numbness, as secondary to service-connected cervical degenerative disc disease status post fusion. The Veteran contends that his bilateral hand numbness is caused by his cervical degenerative disc disease, status post fusion. The Veteran was afforded a March 2021 VA examination for his bilateral hand symptoms. The condition was diagnosed as bilateral upper extremity radiculopathy. The March 2021 VA examiner provided probative, well-reasoned opinions that the Veteran's left and right upper extremity radiculopathy are more likely than not caused by the Veteran's cervical degenerative disc disease, status post fusion. The examiner accounted for the Veteran's specific facts and provides clear, and provided concise reasoning that explains to the Board how the Veteran's experienced symptoms in each upper extremity are more likely than not caused by the Veteran's cervical degenerative disc disease, status post fusion. As such, the preponderance of the evidence is in favor of the Veteran's claim, and service connection is granted for bilateral upper extremity radiculopathy, claimed as bilateral hand numbness. Accordingly, the claim for service connection for bilateral upper extremity radiculopathy is granted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.