Citation Nr: 21067154 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-06 652 DATE: November 3, 2021 ORDER Entitlement to an increased rating in excess of 10 percent disabling prior to June 21, 2019, and in excess of 20 percent thereafter, for cervical spine degenerative changes at C4-C6 is denied. Entitlement to service connection for hernia to include as secondary to the service-connected disability of lumbar spine degenerative disc disease is denied. REMANDED Entitlement to a rating in excess of 20 percent disabling for service-connected left lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 20 percent disabling for service-connected right lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 10 percent disabling for service-connected radiculopathy of the left upper extremity is remanded. FINDINGS OF FACT 1. For the period prior to June 21, 2019, the Veteran's cervical condition manifested as forward flexion limited to 35 degrees. 2. From June 21, 2019, the Veteran's cervical condition manifested as forward flexion limited to 30 degrees. 3. The preponderance of the evidence is against finding that hernia began during active service, or is otherwise related to an in-service event, injury, or disease, to include as due to service-connected lumbar spine degenerative disc disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 10 percent disabling prior to June 21, 2019, and in excess of 20 percent thereafter, for cervical spine degenerative changes at C4-C6 have not been met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§3.102, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for service connection for hernia to include as secondary to the service-connected disability of lumbar spine degenerative disc disease have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to November 2005. In May 2020 the Board remanded the issues of increased evaluations for peripheral neuropathy further development, and the case has since been returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) has not substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. §1155; 38 C.F.R. §4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned.38C.F.R. §4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. §4.3. Entitlement to an increased rating in excess of 10 percent disabling prior to June 21, 2019, and in excess of 20 percent thereafter, for cervical spine degenerative changes at C4-C6 In a June 2012 rating decision, the Veteran's evaluation for his cervical spine condition was increased from noncompensable to 10 percent disabling. The veteran disagreed with this decision and in a subsequent August 2019 rating decision, the evaluation was increased to 20 percent disabling. The Veteran continued to disagree with this decision so the issue before the Board is whether the Veteran is entitled to an increased rating in excess of 10 percent disabling prior to June 21, 2019, and in excess of 20 percent thereafter, for cervical spine degenerative changes at C4-C6. The Veteran's cervical spine condition is evaluated under DC 5242. Under DC 5242, the cervical spine disability can either be rated under the General Rating Formula for Disease and Injuries of the Spine (General Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever results in a higher evaluation. 38 C.F.R.§ 4.71a, DC 5242. Under VA regulations, normal range of motion of the cervical spine, or neck, is flexion and extension to 45 degrees each, lateral flexion to 45 degrees in both directions, and rotation to 80 degrees bilaterally. 38 C.F.R. § 4.71a, Plate V. Under the General Formula, a 20 percent rating is warranted for forward flexion of the cervical spine between 15 and 30 degrees; combined range of motion of the cervical spine less than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. A 30 percent rating is warranted for forward flexion of the cervical spine between 15 and 30 degrees; combined range of motion of the cervical spine less than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. In June 2012, the Veteran attended a VA Cervical exam. The examiner diagnosed cervical spine degenerative joint disease. The Veteran noted flare-ups that caused sleep disruption which cascaded to chronic fatigue during the day. Examiner stated that the Veteran's range of motion (ROM) were as follows: forward flexion limited to 35 degrees prior to repetitive use then 40 degrees; extension to 45 degrees; right and left lateral flexion to 40 degrees and right and left later rotation to 75 degrees after repetitive use. Joint function was not further limited by pain, weakness, lack of endurance, fatigue or incoordination after repetitive use. Examiner noted pain on movement and localized tenderness or pain to palpation for joints/soft tissue of the neck. Examiner noted no evidence of guarding or muscle spasm. Examiner noted normal muscle strength, reflexes and sensory testing and noted there was no atrophy. Examiner noted there was no radiculopathy. In June 2016, the Veteran attended a VA cervical spine exam. The examiner diagnosed cervical spine degenerative disease. The Veteran reported no flare ups of his condition. The examiner noted all ranges of motions as normal and noted objective evidence of pain. Examiner noted the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation if pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time. Examiner noted normal reflexes, muscle strength and sensory exams. Examiner noted the Veteran had IVDS but no episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in past 12 months. In June 2019, the Veteran attended a VA Neck Conditions examination. The examiner diagnosed cervical spine degenerative changes at C4-C6. The Veteran indicated he was in constant sharp pain but did not report any flare-ups. Upon examination, ROM was noted as: forward flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 50 degrees, and left lateral rotation to 50 degrees. No guarding, muscle spasm, atrophy, or ankylosis was noted. Examiner noted the Veteran had IVDS but no episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in past 12 months. The examiner stated that range of motion was not tested in passive motion or weight bearing because this is impractical and unnecessary as there is a potential for harm that far outweighs the benefits. VA and private treatment records consistently reveal complaints of neck pain but no discussion or documentation of ROM. Considering the above, the Board finds that an increased rating in excess of 10 percent disabling prior to June 21, 2019, and in excess of 20 percent thereafter, for cervical spine degenerative changes at C4-C6 is not warranted. Turning to the appeal period prior to June 21, 2019, the Board finds that the evidence of record does not indicate that the Veteran suffered from forward flexion of the cervical spine between 15 and 30 degrees; combined range of motion of the cervical spine less than 170 degrees; or muscle spasm or guarding severe enough to result in abnormal gait or spinal contour; all indicative of a higher 20 percent evaluation. Further, for the period following June 21, 2019, the evidence of record does not indicate that the Veteran suffered from forward flexion of the cervical spine between 15 and 30 degrees; combined range of motion of the cervical spine less than 170 degrees; or muscle spasm or guarding severe enough to result in abnormal gait or spinal contour; indicative of a higher 30 percent rating. In denying further higher ratings, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against such aspects of the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. §5107, 38 C.F.R. §4.3, 4.7. The Board finds that a rating of 10 percent disabling, and no more, prior to June 21, 2019, and 20 percent thereafter, for cervical spine degenerative changes at C4-C6, is warranted for the Veteran's service-connected cervical condition. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for hernia to include as secondary to the service-connected disability of lumbar spine degenerative disc disease The Veteran contends that his hernia is due to his active service, to include as due to his service-connected disability of lumbar spine degenerative disc disease. Service treatment records (STRs) is silent for any complaints, diagnosis, or treatment for hernias. In March 2015, the Veteran attended a VA Hernia examination. The examiner diagnosed inguinal hernia as of "2012". The examiner opined that it was less likely as not that his left inguinal hernia is due to or the result of the Veteran's L-Spine DDD. The rationale provided was: Extensive review of multiple medical literature, including Up To Date, had no information to indicate that inguinal hernia is related to lumbar spine degenerative disc disease. In February 2016, a blank VA Hernia examination form was provided. However, the examiner provided an opinion stating it is less likely as not the Veteran's inguinal hernia was aggravated beyond its natural progression by the SC lumbar spine DDD. The rationale provided was: Extensive review of multiple medical literature, including Up To Date, had no information to indicate that inguinal hernia is related to lumbar spine degenerative disc disease. In August 2019, as required by the March 2019 Board remand, an addendum opinion was provided. The examiner opined that the Veteran's hernia condition was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The rationale provided was: Veteran has claimed service connection for inguinal hernia related to stress and strain in service. Veteran has reported that he routinely lifted heavy loads while working in the motor pool, while serving on active duty. After review of all available records, there is no evidence found in service treatment records of any diagnosis of hernia, nor mention of hernia. The following notes indicate that Veteran was diagnosed with inguinal hernia in 2013 after identification of hernia on CT in 2012. Veteran then had surgery in 2014. He completed his military service in 2005. Given that there are no findings of hernia diagnosis in service treatment records, and no evidence of diagnosis until 2013, it is less likely than not that the Veterans inguinal hernia condition was incurred in or caused by military service. Veteran has claimed service connection for hernia related to stress and strain in service. Veteran has reported that he routinely lifted heavy loads while working in the motor pool, while serving on active duty. After review of all available records, there is no evidence found in service treatment records of any diagnosis of hernia, nor mention of hernia. As there is no evidence of diagnosis, it is less likely than not that the Veterans inguinal hernia condition was incurred in or caused by military service. 9/9/2005 Medical Evaluation Board physical exam conducted to evaluate medical conditions and fitness for continued service. No mention of hernia.9/4/2012 CT Abdomen report states fat-containing left inguinal hernia.11/20/2014 General Ambulatory surgery note: open left inguinal hernia repair with mesh, performed at Tampa VAMC 12/29/2014 Note from Dr [H] who performed hernia surgery; and note indicates normal changes s/p repair.3/21/2015 C&P exam notes state that Veteran first reported hernia pain in 2013. He had open repair of left inguinal hernia in Nov 2014. Reported residual numbness in the area of surgery.7/14/2015 Notes from Dr [H] indicating Veteran residual pain at surgical site, with likely cause being inguinodynia, not recurrent hernia. The remaining evidence of record details continued complaints and treatment for hernia but no discussion on its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. The Board finds the March 2015 and August 2019 VA opinions of record the most probative evidence of record as to the etiology of the Veteran's hernia condition because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Further, the Board notes that the evidence of record is silent for a medical opinion that states otherwise. The Board considered the Veteran's lay assertions as to the etiology of his claimed disability. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the etiology of his hernia condition. The Veteran has not been shown to have specialized medical knowledge that would be necessary to provide a competent opinion regarding service connection. The Board finds the March 2015 and August 2019 VA opinions of record to be more probative in this regard. The examiner considered the Veteran's history, and ultimately concluded that from a medical perspective, it is less likely that his claimed disability is related to service nor was it proximately due to or aggravated by his service-connected lumbar condition. In conclusion, the weight of the evidence is against the claim for service connection for a hernia condition. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent disabling for service-connected left lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 20 percent disabling for service-connected right lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 10 percent disabling for service-connected radiculopathy of the left upper extremity is remanded. In the March 2019 Board remand, the Board directed the AOJ to provide the Veteran with an examination to determine current symptomatology of his service-connected peripheral neuropathy disabilities. Specifically, the examiner was directed to conduct range of motion testing pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was provided an examination in June 2019, however, the examiner failed to provide the required range of motion testing. Accordingly, an additional examination is needed. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current severity of his service-connected left upper extremity radiculopathy, and bilateral lower extremity peripheral neuropathy. The claims file must be made available to the examiner. The examiner should identify the nature and severity of all manifestations of the Veteran's left upper extremity radiculopathy, and bilateral lower extremity peripheral neuropathy. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran's service-connected disabilities on his daily activities and employability. The examiner MUST record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If this testing cannot be done, the examiner should clearly explain why this is so. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.