Citation Nr: 21064438 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 12-33 969A DATE: October 20, 2021 ORDER Service connection for cervical radiculopathy of the left upper extremity is granted. Service connection for a musculoskeletal disability of the left shoulder is denied. REMANDED Entitlement to service connection for a disability of the left elbow, to include cubital tunnel syndrome (ulnar neuropathy) is remanded. FINDINGS OF FACT 1. The Veteran's cervical radiculopathy of the left upper extremity is caused by his service-connected degenerative arthritis of the cervical spine. 2. The Veteran has been diagnosed with degenerative changes of the acromioclavicular joint of the left shoulder and left shoulder impingement syndrome. 3. The Veteran's degenerative changes of the acromioclavicular joint of the left shoulder and impingement syndrome are not linked to disease or injury incurred or aggravated in active service, and have not been caused or aggravated by his service-connected disability of the cervical spine. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical radiculopathy of the left upper extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a musculoskeletal disability of the left shoulder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had an honorable career in the United States Army, serving on active duty from August 1982 to December 1982, and from November 1983 to April 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2020 decision, the Board denied service connection for a left arm, shoulder, and elbow disability. In a December 2020 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR) and vacated the Board's decision. The Court remanded the matter for action consistent with the terms of the joint motion. The Board then remanded the matter for further development in June 2021. Service Connection Service connection generally will be awarded when a veteran has a disability resulting 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). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). For conditions noted during service (or in the presumptive period) but not shown to be chronic at the time, a continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). Id. In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for arthritis if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. § § 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). Cervical Radiculopathy of Left Upper Extremity In the December 2020 JMR, the parties agreed that the Board must address whether the Veteran's claim for a left arm, shoulder, and elbow disability encompasses "neuropathy/radiculopathy symptoms" as a reasonably raised theory of entitlement to service connection pursuant to Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009. As the evidence shows diagnoses of cervical radiculopathy of the left upper extremity, the Board finds that the Veteran's claim encompasses a neurological condition. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled); cf. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the scope of a mental health disability claim includes any acquired psychiatric disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). For the following reasons, the Board finds that service connection for the Veteran's cervical radiculopathy of the left upper extremity is established as secondary to his service-connected disability of the cervical spine. Service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. 38 C.F.R. § 3.310(b). Here, the Veteran has been diagnosed with degenerative arthritis of the cervical spine, for which service connection has been awarded. A February 2010 VA treatment record reflects a finding that the Veteran had left upper extremity pain that was radicular in nature, with a history of a herniated nucleus pulposus ("HNP") at C6-7. A February 2017 private treatment record reflects that neurological testing (EMG/NCS) showed electrophysiologic evidence of chronic C6-7 cervical radiculopathy affecting the left upper extremity. In a February 2019 VA examination report, the examiner diagnosed degenerative cervical spondylosis (arthritis) with protruding intravertebral disc at C5-6 and C6-7. The examiner found that the Veteran's cervical spine disability was manifested by radiculopathy of the left upper extremity involving the C5/C6 nerve roots (upper radicular group). Accordingly, as the evidence shows that the Veteran's service-connected disability of the cervical spine has caused radiculopathy of the left upper extremity, the criteria for service connection on a secondary basis are satisfied. See 38 C.F.R. § 3.310(a). Musculoskeletal Disability of Left Shoulder For the following reasons, the Board finds that the criteria for service connection for a musculoskeletal disability of the left shoulder have not been met. A February 2010 VA x-ray study of the left shoulder showed mild degenerative changes of the acromion. A December 2012 military treatment facility (MTF) record similarly reflects that an x-ray of the left shoulder showed mild acromioclavicular joint degenerative changes. In the October 2017 VA examination report, the examiner diagnosed impingement syndrome of the left shoulder. The service treatment records reflect that in December 2003, the Veteran was seen with a two-day history of left shoulder, back, and neck pain. It was noted that he was washing his car that weekend, and had experienced similar symptoms in the past which had resolved. He was tender to touch over the shoulder blade, and felt a spasm in the left side of his neck. On examination, there was a mild spasm of the left trapezius. He had full range of motion of the shoulder. The assessment was musculoskeletal pain and a mild trapezius spasm. He was prescribed medication. Thereafter, the service treatment records do not reflect findings or complaints with respect to the left shoulder. The March 2005 retirement examination report does not show abnormal findings regarding the shoulder. The Veteran did not report shoulder problems in the March 2005 report of medical history. The Veteran does not state that he continued to experience left shoulder problems after being seen in December 2003 for shoulder pain. VA examination reports dated in May 2005, including a general physical examination and an examination specific to the jointsincluding the shoulderreflect no complaints or findings regarding the left shoulder. Private treatment records dated in 2008 and 2009 reflecting treatment for musculoskeletal pain only mention low back pain, and make no reference to the shoulder or arm. A July 2009 VA treatment record reflects that the Veteran was tender over the left scapula area, which caused pain in his left arm. His shoulder was normal. He was assessed with left upper back pain. A February 2010 VA examination report reflects that the Veteran's pain in the left arm, shoulder, and elbow was chronic and gradual. He stated it was connected with his neck injury. When he laid down and stretched his arm out for a short period of time, he would experience pain. Lifting and holding his hand up for a while at a 45 degree level would also cause pain which would go up to his neck. He stated he had very limited motion, and weakness, which affected pushing, lifting, reaching, and everyday activities. A December 2012 MTF record reflects that the Veteran had left "shoulder/arm" pain described as a sensation of his muscles tightening or spasms at his shoulder and triceps. A VA examination was performed in July 2021. In the July 2021 VA medical opinion, the examiner found that the Veteran's left shoulder condition was less likely than not related to an in-service disease, injury, or event. In this regard, the examiner considered the December 2003 in-service left shoulder symptoms, but found there was lack of evidence of continuity of care, and therefore it must have been an acute injury with no chronic sequela. The examiner also found that the Veteran's left shoulder disability was less likely than not caused or aggravated by his service-connected cervical spine disability, explaining that the shoulder is independent of the cervical spine and thus would not be affected by a condition of the cervical spine. The Board finds the July 2021 VA examination report is adequate and probative, as it represents the conclusion of a medical professional based on examination of the Veteran and review of his pertinent medical history, and is supported by an explanation sufficient for the Board to make a fully informed decision. In this regard, although not completely spelled out, the "essential rationale" for the examiner's opinion is clear. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). More specifically, with regard to direct service connection, the examiner found that because the Veteran did not have ongoing left shoulder symptoms following the December 2003 treatment, that condition had fully resolved and thus would not be related to subsequent shoulder problems, as expressed in the phrase "it must have been an acute injury with no chronic sequela." Although evidence of "continuity of care" is not required to support the claim, it is readily apparent that the examiner meant that there was no evidence of continuing or ongoing symptoms, which indicated that the left shoulder symptoms for which the Veteran was seen in December 2003 had resolved. He has not stated, and the record does not otherwise show, that he had ongoing or recurrent left shoulder problems following the December 2003 treatment, or that he sustained an injury to the left shoulder in service. The earliest evidence of the Veteran's current left shoulder problems is dated several years after his retirement from service, with no indication that he experienced shoulder symptoms in the interim. The rationale for the July 2021 opinion regarding secondary service connection is also clear. The examiner explained that because the cervical spine and shoulder are distinct anatomical locations, a condition of the cervical spine would not affect the shoulder. It is apparent from the report as a whole that the examiner was addressing a musculoskeletal condition of the left shoulder. In this regard, the examiner observed later in the report that radiculopathy of the left upper extremity is "not a joint problem." To the extent the Veteran's left arm neurological symptoms are attributable to his cervical radiculopathy, service connection has already been established as discussed above. The September 2021 appellate brief states that the cervical spine and shoulder are in fact "interrelated," because when lifting or lowering the neck it engages the shoulder muscles, which are "intertwined with the cervical muscles." In this regard, the brief states: "The levator scapulae muscle attaches to the top four cervical vertebrae and runs down the side of the neck to where it connects with the top of the shoulder blade. This muscle helps with lifting the shoulder blade, bending the neck to the side, and rotating the head." As the record does not show that the Veteran's service-connected degenerative arthritis of the cervical spine affects the levator scapulae muscle or any other muscles, the fact that the muscles of the shoulder and cervical spine may be "intertwined" does not alter the Board's conclusion that the July 2021 VA medical opinion is adequate and probative on the issue of secondary service connection. Moreover, the record does not show that the Veteran has impairment of the levator scapulae muscle. Rather, it shows a diagnosis of degenerative changes of the acromioclavicular joint and impingement syndrome. Accordingly, the assertions in the September 2021 appellate brief are not applicable to the disabilities at issue, and are outweighed by the July 2021 VA medical opinion. The issue of whether the Veteran's left shoulder condition has been caused or aggravated by his cervical spine degenerative arthritis is a determination that requires medical evidence, as such a relationship cannot be discerned based on lay observation alone; it is medically complex. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran, as a layperson in the field of medicine, lacks medical expertise. Therefore, his unsupported lay statements asserting that there is a link between his left shoulder condition and his cervical spine disability are not competent evidence, and therefore are not probative. See id.; see also Layno v. Brown, 6 Vet. App. 465, 470-71 (1994)(holding that for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). They are outweighed by the VA medical opinion, which, for the reasons discussed above, the Board finds to be probative. In sum, the probative evidence shows that the Veteran's left shoulder acromioclavicular degenerative changes and impingement syndrome are not linked to a disease or injury incurred or aggravated in active service, and have not been caused or aggravated by his service-connected disability of the cervical spine. Accordingly, the criteria for service connection on a direct or secondary basis have not been met. See Holton, 557 F.3d at 1366; 38 C.F.R. §§ 3.303(a); 3.310. Because the record shows that arthritis of the left shoulder was not noted in service or within a year of separation, and as a continuity of symptomatology is not otherwise shown, the presumptive provisions for arthritis as a chronic disease do not apply. See 38 C.F.R. §§ 3.303(b); 3.307(a)(3). As the preponderance of the evidence is against the claim, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See Lynch, 999 F.3d at 1395; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for a disability of the left elbow, to include cubital tunnel syndrome (ulnar neuropathy), is remanded. The Veteran's claim for a disability of the left arm, shoulder, and elbow encompasses his diagnosed ulnar neuropathyor cubital tunnel syndromeinvolving the left elbow. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In this regard, a February 2017 private neurological examination (EMG/NCS) of the left upper extremity showed electrophysiologic evidence of both cervical radiculopathy and "concomitant" ulnar neuropathy across the left elbow "as seen in cubital tunnel syndrome." A June 2010 letter from a treating physician also reflects diagnoses of neuralgia of the ulnar nerve and cubital tunnel syndrome. A July 2017 VA treatment record reflects a finding of "ongoing left ulnar neuropathy symptoms." Service connection has been awarded for carpal tunnel syndrome of the left upper extremity. However, the agency of original jurisdiction (AOJ) has not adjudicated the issue of entitlement to service connection for ulnar neuropathy, which is a distinct condition. On remand, a VA medical opinion must be obtained addressing the issue of whether the Veteran's left ulnar neuropathy has been caused or aggravated by his service-connected cervical spine disability and/or left upper extremity cervical radiculopathy. The matter is REMANDED for the following action: Obtain a VA medical opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left ulnar neuropathy/cubital tunnel syndrome has been caused or aggravated by his service-connected cervical spine degenerative arthritis and/or cervical radiculopathy of the left upper extremity. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.