Citation Nr: 21068161 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 19-17 265 DATE: November 9, 2021 ORDER Entitlement to service connection for cervical spine disability is denied. Entitlement to service connection for left shoulder disability is denied. Entitlement to service connection for right shoulder disability is denied. Entitlement to a rating in excess of 60 percent for degenerative disc disease (DDD) of the thoracolumbar spine is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that cervical spine disability began during active service or is otherwise related to an in-service injury or disease or service-connected disability. 2. The preponderance of the evidence is against finding that left shoulder disability began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that right shoulder disability began during active service or is otherwise related to an in-service injury or disease. 4. The Veteran's DDD of the thoracolumbar spine did not manifest unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for left shoulder disability 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 right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to a rating in excess of 60 percent for DDD of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.951, 4.1, 4.3, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1956 to July 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Veteran represented himself. The Board issued a remand in November 2020 instructing the RO to obtain VA examinations to determine the nature and etiology of the Veteran's cervical spine disability and bilateral shoulder disability. The RO was instructed to also obtain a VA examination to determine the level of severity of the Veteran's service connected DDD of the thoracolumbar spine. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained March 2021 and May 2021 VA examinations. The Board finds the RO substantially complied with the November 2020 remand directives. The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on medical and lay evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection requires: (1) a service-connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. § 3.310. 1. Entitlement to service connection for cervical spine disability. The Veteran contends that he developed a cervical spine disability due to his military service. Alternatively, the Veteran contends that he developed a cervical spine disability secondary to his service-connected lumbar spine disability. See December 2015 Statement. During the September 2020 Board hearing, the Veteran testified that he injured his spine while in he was in Korea. He started experiencing pain and given medication. He also stated that he worked in 40 below weather in Korea at a railroad. He duties included handling of 55-gallon drums of fuel. He went to sick call but not at a regular hospital. He was treated in a tent. An x-ray was not performed. Currently, his spinal cord is fused together. He now has rheumatoid arthritis in his spinal cord. Service treatment records (STR), including the October 1957 separation examination, lack any complaint, treatment, or diagnosis of a cervical spine disability. Post-service treatment records indicate the Veteran did not develop a cervical spine disability within one year after discharge from service. See e.g., May 1976 VA examination (complained of pain in his neck); September 2006 Community Radiology (cervical disk disease with large bulging and herniated disk fragments producing spinal stenosis but no cord atrophy); December 2009 PM & RS Physical Therapy Consult (complained of neck pain); May 2010 Image Report (multilevel DDD, most conspicuous at C5-6); June 2010 PM & RS Physical Therapy Consult (degenerative joint disease (DJD) of the neck); February 2015 Physical Therapy Consult (chronic neck pain). The Veteran was provided VA examinations that focused on his lumbar disability. However, the Board found it was necessary to obtain an examination specifically for the cervical spine. Therefore, the Veteran was offered an examination in March 2021. The examiner confirmed a diagnosis of degenerative disc disease (DDD) cervical spine, multilevel. The onset of the disease was January 2012. The Veteran reported that he was stationed in Korea in 1956 and his neck started to bother him due to cold weather. The pain worsened over time. The examiner opined that the Veteran's cervical spine disability 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 explained that in January 2010, the cervical spine x-ray showed multilevel DDD, most conspicuous at C5-6. The Veteran complained of injuring his back from lifting 55-gallon drums while in military service. However, there were no complaints about his neck while in military service. By the time the Veteran developed x-ray evidence of multilevel DDD, he was 72 years old. This was not considered early onset osteoarthrosis from subzero temperatures. A nexus cannot be established. The examiner also offered a medical opinion for secondary service connection. The examiner opined that the Veteran's cervical spine disability was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner explained that the Veteran served in the Army from July 1956 to October 1957 with service training of supply handler. At the September 2020 board hearing, the Veteran contended he worked with 55-gaollon drums of fuel in subzero temperatures, and he also reported problems over his "entire" body during active service. On May 29, 1961, the Veteran reported lower back pain, but no other joints were included in this report. On August 23, 1974, the Veteran was diagnosed with lumbosacral plexus neuropathy. This was a condition that is characterized by the sudden onset of neuropathic pain, followed by weakness and sometimes sensory disturbances in the distribution of the lumbosacral plexus. In 1975, the Veteran was diagnosed with a lumbosacral strain and spina bifida at S1 (which is a congenital defect). When spina bifida is diagnosed in adulthood, some of the symptoms include back pain, weakness or numbness of the hands and legs, pain in the back of the legs. This is consistent with his April 8, 1975 statement of being unable to bend and sharp pains in the back of the legs. This can also be easily diagnosed as lumbosacral plexus neuropathy in the absence of lumbar imaging (such as the August 23, 1974 diagnosis by a neuropsychiatrist). The Veteran was service connected for DDD of the lumbar spine. There is no medical literature, to the examiner's knowledge, that supports DDD of the lumbar spine causing degeneration and/or pathology in other joints. While the Veteran does have antalgic gait, which could affect the weight bearing joints involved in walking due to the kinematic response, the examiner suspected based on the Veteran's reported military history, x-ray findings, and age of the Veteran at the time of the x-ray findings, that the degeneration in his other joints would have still occurred even if he did not have DDD of the lumbar spine. A nexus cannot be established. Therefore, it was the examiner's opinion that the Veteran's cervical spine disability was less likely than not proximately due to or the result of the Veteran's service connected DDD of the lumbar spine. The Board acknowledges the Veteran's contentions that his current cervical spine disability is related to his duties in service. However, a lay person is not considered competent to medically attribute a cervical spine disability to service as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nevertheless, the objective medical evidence of record answered this question. The evidence showed the Veteran did not complain of cervical spine disability while in service. His complaint of neck pain started almost 20 years after service. Medical opinions of record did not support a nexus between the Veteran's current cervical spine disability and his military service. It also did not support a finding that his cervical spine disability was secondary to his service-connected lumbar spine disability. The Veteran has not submitted any medical opinions to contradict this finding. Accordingly, the criteria for entitlement to service connection for cervical spine disability have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for cervical spine disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for left shoulder disability. 3. Entitlement to service connection for right shoulder disability. The Board addresses the service connection claims together as they stem from the same factual background and are addressed under the same legal basis. The Veteran contends that he is entitled to service connection for left and right shoulder disability. During the September 2020 Board hearing, the Veteran testified that he injured his shoulders while in he was in Korea. He started experiencing pain and given medication. In Korea, a hospital wasn't available. He was treated in a tent. An x-ray was not performed. He also stated that he worked in 40 below weather in Korea at a railroad. He duties included handling of 55-gallon drums of fuel. He went to sick call but not at a regular hospital. STR, including the October 1957 separation examination, lack any complaint, treatment, or diagnosis of a left and right shoulder disability. Post-service treatment records indicate the Veteran did not develop a left and right shoulder disability within one year after discharge from service. See e.g., May 1963 Orthopedic Report (when moving the shoulders in flexion and abduction, he complained of pain in the right trapezius musculature); May 1976 examination (complained of pain in his shoulders); May 2010 Radiology Report (bilateral DJD in the glenohumeral and acromioclavicular joints). The Veteran was provided an examination in March 2021. The examiner confirmed a diagnosis of degenerative arthritis with an onset in May 2010. The Veteran reported that his bilateral shoulders started to bother him in Korea in 1956 with cold weather exposure. He denied any shoulder surgeries and reported that his pain worsened over time. The examiner opined that the Veteran's left and right shoulder disability 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 explained that in June 1976, the Veteran complained of hurting his back with a 55-gallon drum in Korea, and now with pain in the shoulders. It is noted that the Veteran walked with a slight limp and the with a slight tilt of the pelvis to the left and wears a back brace. The nerves and muscles in the shoulders were not supplied by the lumbar spine. On May 26, 2010, bilateral shoulder x-ray shows bilateral DJD in the glenohumeral and acromioclavicular joints. If lifting the 55-gallon drums in subzero temperatures was causing the degeneration, I would expect findings prior to 53 years after military service. It is not unusual to develop degeneration at the age of 72. This does not align with the imaging for early onset osteoarthrosis due to cold injury. A nexus cannot be established; therefore, it is my opinion the Veteran's shoulder degenerative arthritis less likely than not incurred in military service including lifting 55-gallon drums in subzero temperature. The Board finds that the grant of service connection for a left and right shoulder disability is not warranted. The service treatment records indicate the Veteran complained of and was treated for a back injury but not a shoulder injury or shoulder pain. In addition, post-service treatment records do not indicate the Veteran developed a left and right shoulder disability within one year after discharge. Medical records and VA examinations confirmed the Veteran has a current left and right shoulder disability but did not support the contention that it was related to service or a service-connected disability. No objective evidence is of record to oppose this finding. Accordingly, the criteria for entitlement to service connection for a left and right shoulder disability have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a left and right shoulder disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to a rating in excess of 60 percent for DDD of the thoracolumbar spine. The Veteran contends that he is entitled to an increased rating for his service connected DDD of the thoracolumbar spine, because the severity of his symptoms increased. The Veteran is service connected for DDD of the thoracolumbar spine with a 60 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. The Veteran's rating was effective January 30, 1998 and is protected pursuant to 38 C.F.R. § 3.951(b). In a December 2015 Statement, the Veteran wrote that he was hurt in Korea in 1956. Prior to leaving Korea, he had problems with standing and sitting. He worked in cold temperatures. He was told by VA doctors that operating wasn't an option, but he could do therapy three times a week to control the pain. However, after some time, he was told that the therapy would not help him. During the September 2020 Board hearing, the Veteran testified that the lower part of his spinal cord is fused together. He learned in recent years that he had rheumatoid arthritis in his spinal cord. He was recommended to take therapy. He completed therapy for 15 years. Thereafter, he was told by the doctors that his condition was so bad that therapy could no longer help him. Regulation Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §§ 4.7, 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. The criteria for evaluating back conditions changed effective September 23, 2002, and again effective September 26, 2003, and again February 7, 2021. The February 2021 amendments outline the current rating criteria for the back. These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under the old criteria the Veteran was rated 60 percent for intervertebral disc syndrome. A 60 percent evaluation was assigned for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. A 100 percent evaluation was assigned for unfavorable ankylosis of the entire spine. Under the current rating criteria, a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. Recently, the Court found, in Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021), that ankylosis of the spine can be demonstrated by its functional equivalent. When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Evidence VA treatment records show ongoing treatment for back pain without any evidence of unfavorable ankylosis of the entire spine. See e.g., December 2001 Pain Procedure Note (lidocaine injection for lumbar facet joint); November 2006 Primary Care Note (Veteran stated pain is controlled with medication; extensive degenerative changes of the lumbar spine with joint space narrowing at L5 S1 level); October 2009 Physical therapy Consult (moderate tenderness of the low spine); October 2012 Image Report (Mild-to-moderate disc space narrowing; leftward curvature to the lumbar spine); November 2017 Therapy Consult (ankylosing spondylosis with chronic pain). On the May 2009 VA examination, range of motion was 40 degrees flexion, 20 degrees extension, 18 degrees right lateral flexion, 18 degrees left lateral flexion, 18 degrees right rotation, and 18 degrees left rotation. Examination was positive for mild paravertebral muscle spasms and tenderness. Straight leg raises were positive for reports of neurological involvement in both legs. Motor was 5/5 with adequate bulk and tone. Deep tendon reflexes diminished 1+ bilaterally at the patella and achilles. Gait was antalgic. See also June 2009 Neurological disorder evaluation (chronic low back pain secondary to spinal osteoarthritis or perhaps ankylosing spondylitis). On the October 2014 VA examination, range of motion was 50 degrees flexion, 15 degrees extension, 10 degrees right lateral flexion, 10 degrees left lateral flexion, 5 degrees right rotation, and 15 degrees left rotation. There was pain with all ranges of motion. After repetitive use, range of motion was 20 degrees flexion, 10 degrees extension, 10 degrees right lateral flexion, 10 degrees left lateral flexion, 5 degrees right rotation, and 15 degrees left rotation. There were findings of tenderness, muscle spasm, and guarding of movement resulting in an abnormal gait and abnormal spinal contour. There was no ankylosis of the spine. There was evidence of IVDS, without evidence of incapacitating episodes. Radiculopathy affecting both lower extremities was noted. The examiner confirmed a diagnosis of degenerative arthritis of the spine. On the January 2017 VA examination, range of motion was 55 degrees flexion, 10 degrees extension, 10 degrees right lateral flexion, 10 degrees left lateral flexion, 10 degrees right rotation, and 10 degrees left rotation. There was pain with all ranges of motion. Repetitive use testing was not completed as you indicated that it was too painful. There was pain on weight bearing. Additional limitation of motion during flare-ups or with repeated use over time could not be given because you were not examined during a flare-up or after repeated use over time. There were findings of tenderness and guarding of movement resulting in an abnormal gait or abnormal spinal contour. There was no ankylosis of the spine. There was no evidence of IVDS. Radiculopathy affecting both lower extremities was noted. On the May 2021 VA examination, range of motion was 30 degrees flexion, 10 degrees extension, 10 degrees right lateral flexion, 10 degrees left lateral flexion, 10 degrees right rotation, and 10 degrees left rotation. There was pain with all ranges of motion. After passive range of motion testing, range of motion results were the same. There was pain on active and passive motion and which caused functional loss. Repetitive use testing could not be performed because the Veteran stated that he was in severe pain. There was no evidence of crepitus, localized tenderness, guarding, muscle atrophy, or ankylosis. There was evidence of muscle spasms which resulted in abnormal gait. The Board finds that the Veteran's DDD of the thoracolumbar spine does not warrant a 100 percent rating. Under the old criteria and the new criteria, a 100 percent rating is not warranted unless the evidence shows unfavorable ankylosis of the entire spine which includes cervical, thoracic, and lumbar. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in one difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, Note 5. Such findings are not present in this case. In addition, the previous three VA examinations did not support a finding that ankylosis was present. There is no objective evidence of record to oppose this finding. The provisions of 38 C.F.R. § 4.40 and §4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown and Mitchell v. Shinseki, have been considered and are not warranted. A separate evaluation is not warranted for lower extremity radiculopathy. The Veteran is already service-connected and rated for bilateral radiculopathy of the left and right lower extremity. Therefore, entitlement to a rating in excess of 60 percent disabling for DDD of the thoracolumbar spine is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.