Citation Nr: 21073482 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-30 476 DATE: December 8, 2021 ORDER Entitlement to service connection for a cervical spine disorder is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for right lower extremity radiculopathy associated with a low back disorder is remanded. FINDING OF FACT The Veteran's current cervical spine disorder is less likely than not etiologically related to his active service, to include a conceded in-service back injury; and did not manifest to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from November 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of November 2012 and March 2014 rating decisions issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing in November 2017, a transcript of which has been attached. The Board has advanced this case on the docket pursuant to 38 U.S.C. §7107(b)(3). 38 C.F.R. §20.900(c). The Board previously remanded these issues, as well as entitlement to service connection for erectile dysfunction, for further development in December 2018 and June 2021. In a September 2021 rating decision, the AOJ granted entitlement to service connection for erectile dysfunction as secondary to the Veteran's service-connected acquired psychiatric disorder, effective the same date as the grant for the psychiatric disorder. Therefore, the Board considers this a full grant of the benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for cervical radiculopathy The Veteran asserts that his cervical spine disorder is due to his active service, specifically a back injury he incurred inservice. The Veteran has consistently described this injury as his back "giving out" while attempting to remove an engine from a jeep. He has reported that his back has ached consistently since separation from service. Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an 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, 1167 (Fed. Cir. 2004). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). Certain chronic diseases, such radiculopathy, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, if a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (quoting 38 C.F.R. § 3.303(b)). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Id. at 1337. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall afford the benefit of the doubt to the claimant. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the weight of the evidence amounts to relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Therefore, a preponderance of the evidence must weigh against the Veteran's claim in order for service connection to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). The Veteran's service treatment records, to include his entrance and separation examinations, are silent for complaints of or treatment for neck issues, to include radiculopathy symptoms. September 2003 VA treatment records indicate he suffered a stroke, which manifested as tremors, numbness, slurred speech and weakness in his legs as well as his right arm. January 2007 VA imaging revealed minimal disc bulging and spondylosis as well as mild degeneration of the cervical spine. June 2007 VA treatment records note the Veteran denied radiculopathy symptoms in the extremities and stated that while he initially hurt his back inservice, he injured his neck "this year." June 2008 VA treatment records note the Veteran reported numbness and tingling in his left shoulder and contain a clinician's impression of cervical radiculopathy. VA treatment records are then silent for neck or cervical radiculopathy complaints until June 2012, when he complained of severe neck and shoulder pain. In July 2012 correspondence, the Veteran's private treatment provider noted that he had manifested degenerative arthritis of the lower cervical spine and suffers periodic episodes of pain and limitation in the cervical spine after physical activity that vary between mild and moderate intensity. October 2012 treatment records indicate the Veteran reported right shoulder and neck pain but denied radiation to his extremities. In March 2013 correspondence, the Veteran's treating physician opined that his lumbar scoliosis with radiculopathy was at least as likely as not due to his inservice lifting injury. However, the physician noted that the Veteran's medical treatment records were unavailable for review, and that the opinion was based solely on the Veteran's report of continuous symptoms since the reported injury. The physician also indicated that he was only discussing the Veteran's lumbar spine disorder. The Veteran was afforded a VA cervical spine examination in November 2019. The examiner diagnosed degenerative arthritis of the spine based on 2012 imaging and noted abnormal range of motion, with increased pain causing functional loss over time. The Veteran exhibited full muscle strength with normal reflexes and fully intact light touch sensation. The examiner recorded no signs or symptoms of upper extremity radiculopathy but noted that the Veteran used a cane and walker due to his back disorder. Observing that there was no record of an inservice injury, the examiner opined that the Veteran's neck disorder was less likely than not incurred in or otherwise due to his active service. The examiner noted that the first report of a neck injury was many years after service, that the Veteran had denied recurrent neck pain or neuritis since service, and that the mechanism of injury described by the Veteran was not sufficiently severe to result in his current abnormalities. In accordance with the Board's remand instructions, the AOJ obtained a September 2021 addendum opinion in which the examiner was instructed to accept as true the Veteran's description of his inservice lifting injury. The examiner observed that there was no evidence in the Veteran's service treatment records regarding complaints of or treatment for a cervical spine or neck condition. Noting that the earliest medical record indicating neck pain was 37 years after the Veteran separated from service, the examiner found that there was no correlation between his present symptoms and his active service. The examiner concluded that the Veteran's current neck disorder was less likely than not due to his active service, to include his reported back injury while working in the motor pool. The examiner explained that if an inservice injury like that described by the Veteran was severe enough to cause his current cervical spine disorder, he would have manifested symptoms prior to separation from service. As noted above, the Board has conceded that the Veteran suffered an inservice back injury. However, the Board finds that the most credible evidence of record indicates that he did not have recurrent neck pain or neuritis at the time of his separation from service. In analyzing the evidence of record, the Board finds that the Veteran's current diffuse degeneration of the cervical spine with possible neuropathy was not diagnosed until revealed by 2007 imaging. Two competent medical professionals have opined that his cervical spine disorder is less likely than not due to his service, and the September 2021 examiner observed that if his reported inservice injury were severe enough to cause his current disorder, symptoms would have manifested prior to his separation. The Board finds the September 2021 opinion to be highly probative, as it takes into account the Veteran's lay statements regarding his injury as well as both his in and post-service treatment records. There is no relevant medical opinion to the contrary, as the private opinion submitted by the Veteran only addresses his lumbar spine disorder. With regard to chronicity, the Board has considered the Veteran's lay statements reporting back pain since his inservice injury but notes that these do not include complaints of neck symptoms, to include cervical radiculopathy. The Veteran's treatment records are silent for complaints of or treatment for neck issues until 2007, when he denied cervical radiculopathy symptoms and indicated that he had injured his neck earlier that year. In this case, the Board finds the Veteran's denial of neck issues at separation highly probative, as it is consistent with the findings from a competent examiner at that time noting a normal clinical evaluation of the cervical spine. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). As such, there is insufficient lay and medical evidence to support an award of service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b) as well as arthritis or radiculopathy being manifest to a compensable degree under 38 C.F.R. § 3.309(a). Although the Veteran maintains that his cervical spine symptoms are due to his inservice back injury, he is not shown to possess the requisite training to speak to the proper diagnosis or etiology of a chronic disorder such as arthritis or cervical radiculopathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran's opinion in this matter is greatly outweighed by that of the September 2021 examiner, who noted that if the Veteran's inservice injury was severe enough to cause his current disorder, he would have manifested symptoms prior to separation. The Board finds this opinion, combined with the silence of the separation examination regarding cervical spine issues, to be highly persuasive. Curry, 7 Vet. App. at 68. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). As detailed above, despite the Veteran's assertion to the contrary, a preponderance of the evidence is against finding a link between his inservice back injury and his current cervical spine disorder. The evidence is also against finding the onset of a chronic cervical spine disease during service or within one year of separation. Therefore, the benefit of the doubt rule is not for application in this instance, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. The Veteran asserts that his current back disorder, to include lower extremity radiculopathy symptoms, are due to an inservice back injury. Although his service treatment records are silent for complaints of or treatment for a back disorder, he has reported recurrent back pain since separation from service. In the prior remand, the Board instructed the AOJ to obtain an addendum opinion with regard to the Veteran's back disorder in which the examiner was to accept as true the Veteran's description of his undocumented injury and explain whether the mechanism of injury described by the Veteran was sufficiently severe as to result in any of the current abnormalities of his lumbar spine. The AOJ obtained the requested addendum opinion in September 2021. The examiner noted there was no evidence in the Veteran's service treatment records of a lumbar spine diagnosis or an event that could cause a lumbar spine disorder. Noting that the Veteran reported a back injury with sciatica "four years ago" in 1995, the examiner concluded that his current lumbar spine disorder was less likely than not due to his active service, to include his described lifting injury while in the motor pool. The examiner did not accept the Veteran's report of an undocumented back injury as true, nor did he discuss whether the mechanism of injury was sufficiently severe as to result in the current lumbar spine disorder. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, remand is necessary in order to obtain an addendum VA medical opinion in compliance with the June 2021 Board remand directives. 2. Entitlement to service connection for right lower extremity radiculopathy associated with a low back disorder is remanded. The Board observes that the November 2019 VA examiner found no signs or symptoms of lumbar radiculopathy, with normal muscle strength, reflex and sensory examination results. However, as there is some lay and medical evidence of radiculopathy symptoms during the period on appeal, the Board finds that these issues are intertwined with his claim for a low back disorder and must be remanded as well. See Harris v. Derwinski,1 Vet. App.180 (1991) (issues are considered to be inextricably intertwined when a determination on one issue could have a significant impact on the outcome of another). The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA and relevant private treatment records. 2. Forward the Veteran's claims file to an appropriate VA examiner for an addendum opinion regarding the nature and etiology of his low back disorder and any associated radiculopathy. The need for an additional VA examination is left to the discretion of the examiner. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed thoracolumbar spine disorder had its onset in or is etiologically related to the Veteran's active service, to include an inservice back injury described by the Veteran as caused by lifting a motor from a jeep while working in the motor pool. In providing this opinion, the examiner should accept as true the Veteran's description of a lifting injury although it is not documented. The examiner is further advised of the Board's factual finding that the Veteran's most credible report is that he has not experienced recurrent and/or persistent symptoms of back pain or neuritis since service. The examiner is requested to explain whether the mechanism of injury described by the Veteran was sufficiently severe to result in any current abnormalities of the thoracolumbar spine. The examiner must provide supporting rationale for any opinion(s) offered. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, Associate 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.