Citation Nr: 21069612 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-24 918 DATE: November 19, 2021 ORDER Entitlement to service connection for cervical spine degenerative disc disease (DDD), secondary to service-connected right knee disability, on a causation basis, is granted. Entitlement to service connection for left upper extremity radiculopathy, secondary to service-connected cervical spine DDD, on a causation basis, is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the current cervical spine DDD is caused by the service-connected right knee disability. 2. The Veteran's left upper extremity radiculopathy is caused by his now service-connected cervical spine DDD. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for cervical spine DDD, secondary to service-connected right knee disability on a causation basis, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 2. The criteria for entitlement to service connection for left upper extremity radiculopathy, secondary to service-connected cervical spine DDD, on a causation basis, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that confirmed the previous denial of service connection for a cervical spine condition. The claim is properly characterized as a service connection claim, rather than an application to reopen a previously denied claim for new and material evidence. New and material evidence in the form of March 2014 correspondence asserting good cause for missing the scheduled VA examination and associated private medical records, was received within a year following the initial March 2014 rating decision denying service connection for a cervical spine condition. 38 C.F.R. § 3.156(b). The additional issue of left upper extremity radiculopathy has been added to the appeal as part of the cervical spine disability, as it is a complication and a separate formal claim is not necessary. See Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); 38 C.F.R. § 3.155(d)(2). The Veteran has not been afforded a Board hearing. However, no prejudice inures to the Veteran from proceeding without a hearing since the dispositions are fully favorable. Entitlement to service connection for a cervical spine disability Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. June 2013 private magnetic resonance imaging (MRI) study of the cervical spine showed moderate central canal stenosis, mild diffuse disc bulge at C5/C6, and mild to moderate disc protrusion at C6/C7. July 2013 private medical records included complaints about a long history of neck pain radiating to the middle thoracic area. The Veteran denied arm pain, but endorsed general left hand numbness. Cervical spine physical examination was normal to inspection. Neuromuscular examination was normal. The physician assessed neck pain and cervical radiculopathy. He advised the Veteran about his treatment options, specifically surgery. Later in July 2013, the Veteran underwent cervical diskectomy and cervical fusion. September 2013 private medical records showed that the Veteran had continued neck pain radiating to his left shoulder, but that the hand numbness resolved. Cervical spine physical examination revealed trapezius tenderness. The physician recommended back surgery. He assessed thoracic spine pain and intervertebral disc disorder with myelopathy. In January 2014, the Veteran's wife submitted a letter in support of the claim. She stated that the Veteran sustained a severe fall in January 2013 due to right knee instability. Since that fall injury, he had been limited in his activities of daily living due in part to neck pain. In March 2014, the Veteran reported that he had to have corrective cervical spine surgery before having service-connected thoracic spine surgery. In June 2014, the Veteran had a VA-contract Neck Conditions examination with a physician. The physician diagnosed cervical DDD, cervical spine with fusion and reported a 2013 onset. The Veteran reported that he had fall injury at home and then experienced excruciating pain throughout his entire spine. He had fusion surgery in June 2013, which alleviated left finger sensory disturbances. His neck pain improved but he continued to have flare-ups. Clinical findings for the cervical spine were detailed. Radiculopathy was not reported, but the physician noted dull pinprick sensory disturbance of the left hand in a glove distribution up to the elbow. The physician referenced the June 2013 cervical spine MRI report. He opined that the current cervical spine disorder was related to the fall and aging process. He expressed concern about the private surgeon's cervical and thoracic spine assessments and appropriateness of the spinal surgeries. In his December 2015 notice of disagreement (NOD), the Veteran stated that his January 2013 fall was caused by his service-connected right knee disability. It led to his July 2013 neck surgery. In December 2015, Dr. K, a neurologist, submitted a letter in support of the claim. He had treated the Veteran over the past several years. He recounted that the Veteran sustained a right knee induced fall injury where he fell down about six steps and injured his cervical and thoracic spine. He sought medical attention a few months later for what was determined to be a large disc herniation at C4-5 and C5-6. It required surgery. Dr. K understood that the Veteran's had a service-connected right knee disability, and it caused the January 2013 fall down the steps resulting in a cervical spine injury. In his May 2017 substantive appeal, the Veteran asserted that his neck disability was secondary to his service-connected right knee disability. He cited Dr. K's medical opinion for support. For the following reasons, the Board finds that service connection for cervical spine DDD as secondary to service-connected right knee disability on a causation basis is warranted. The Veteran is competent to report about his history of neck pain and as to the cause of the January 2013 fall injury. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). The Veteran is service-connected for right knee meniscus removal and right knee strain. He reported that right knee instability caused him to fall down several steps and resulted in a neck injury. See also English v. Wilkie, 30 Vet. App. 347, 349 (2018) (DC 5257 does not "speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that DC"). His wife and Dr. K corroborate reports about this right knee induced injury history. (See January 2014 letter and December 2015 Dr. K letter). Overall, the Veteran's reported service-connected right knee fall history is plausible and entitled to probative weight. There is no conflicting medical opinion. The June 2014 VA-contract medical opinion identified the January 2013 right knee induced fall injury and general aging as causes for the cervical spine DDD. In such instances, where there are service-connected and non service-connected causes that are inseparable, the benefit of the doubt doctrine dictates that such cause be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, the June 2014 VA medical opinion provides support to the claim. Dr. K's December 2015 letter endorsed the right knee induced fall injury history reported by the Veteran. It was authored by a treating surgeon, and it is probative medical evidence supporting the claim. For the reasons set forth above, the Board finds that the evidence is evenly balanced as to whether the Veteran's current cervical spine DDD is caused by the service-connected right knee disability. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for cervical spine DDD secondary to service-connected right knee disability on a causation basis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Since this determination is fully favorable, further consideration of alternative theories of entitlement is not necessary. Left upper extremity cervical radiculopathy While the Veteran has not filed claims of service connection for upper extremity radiculopathy, the Court has indicated that such claims can be adjudicated by the Board even in the absence of explicit AOJ adjudication. Bailey v. Wilkie, 33 Vet. App. at 203 (38 C.F.R. § 3.155(d)(2) requires that, when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those "complications" in connection with the claim on appeal). As relevant, July 2013 private medical records note left hand numbness and assess cervical herniated intervertebral disk with radiculomyelopathy. The June 2014 VA-contract examination report state that sensory disturbances in the left finger improved following the June 2013 neck surgery, but physical evaluation reveals left hand and forearm sensory disturbances. While there is no specific medical opinion that the Veteran's left upper extremity neurological disorder is caused by his now service-connected neck disability, the medical records noted above support the conclusion that he has current left upper extremity radiculopathy which is caused by his now service-connected cervical spine disability. (Continued on the next page) For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's left upper extremity radiculopathy was caused by his service-connected cervical spine disability. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left upper extremity radiculopathy, secondary to service-connected cervical spine disability, on a causation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.