Citation Nr: 21074524 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-45 021 DATE: December 15, 2021 ORDER Service connection for a lumbar spine disability is granted. Service connection for right lower extremity radiculopathy, as secondary to a lumbar spine disability, is granted. Service connection for migraine headaches is granted. Service connection for a cervical spine disability is granted. REMANDED Service connection for bilateral upper extremity radiculopathy, as secondary to a cervical spine disability, is remanded. VETERAN'S CONTENTIONS The Veteran contends that he should be granted service connection for his lumbar, cervical, and migraine headache disabilities. See January 2016 VA 21-526EZ. While the Veteran was in service, an 80-pound box fell approximately four feet and struck him in the head. See August 2021 Board Hearing Trans. pp. 2-3. Following this in-service incident, the Veteran reported that he began experiencing low back pain, migraines, and functional limitations in cervical spine, including pain, stiffness, and an inability to turn his head as needed. Id at 5-14. The Veteran also asserted that he was seeking service connected compensation for radiculopathy as secondary to his cervical spine condition. See August 2016 Statement in Support of Claim. Regarding his cervical spine disability, the Veteran reported that he did not continue to seek treatment after receiving physical therapy because he was told that his cervical spine disability would not improve. Id. at 15-17. The Veteran stated that his cervical spine disability negatively affects his ability to stand and sit for long periods of time, which impairs his ability to help his students on their art projects. Id. at 17. FINDINGS OF FACT 1. The Veteran's service treatment records (STRs) indicate that in February 2009, a box fell on the Veteran causing a scalp contusion, cervical subluxation, and a concussion. See February 2009 STRs. Following the in-service injury, the Veteran continued reporting symptoms of low back pain, migraines, and neck pain with limited range of motion. See STRs dated March 2009, April 2009, May 2009, and June 2009. 2. In August 2021, the Veteran testified at a Board of Veterans' Appeals (Board) hearing. At the hearing, the Veteran confirmed that his cervical spine pain and limited range of motion have persisted since the in-service injury. See August 2021 Board Hearing Trans. pp. 14-17. 3. The evidence of record does not clearly and unmistakably establish that the Veteran had a lumbar disability that preexisted service. A preponderance of the evidence indicates that the Veteran first experienced symptoms of low back pain in service, which have continued to the present. See August 2017 Private Medical Opinion. 4. The evidence of record demonstrates that the Veteran's right lower extremity radiculopathy was caused by his lumbar spine disability. See June 2017 VA Treatment Record. 5. The evidence of record demonstrates that the Veteran developed a migraine headache disability in service. Additionally, this migraine headache disability has persisted ever since active-duty service. See August 2017 Private Medical Opinion and September 2015 VA Medical Opinion. 6. The evidence of record demonstrates that the Veteran developed cervical spine pain in service that was diagnosed as cervical subluxation and cervicalgia. See STRs dated March 2009, April 2009, and June 2009. This cervical spine pain has persisted ever since active-duty service and currently causes functional limitations. See August 2021 Board Hearing Trans. pp. 14-17. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.306. 2. The criteria for service connection for right lower extremity radiculopathy are met.38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a migraine headache disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2007 to May 2007, February 2009 to March 2011, and September 2011 to October 2012. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on his August 2017 VA Form 9. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. SERVICE CONNECTION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 1. Lumbar Spine Disability and Associated Right Lower Extremity Radiculopathy After reviewing the evidence of record, the Board finds that service connection for the Veteran's lumbar spine disability and associated right lower extremity radiculopathy is warranted. Turning to the evidence of record, the Board first finds that the Veteran has a current lumbar spine disability. Specifically, the August 2015 VA examiner diagnosed the Veteran with lumbosacral strain with degenerative changes in an area of congenital anomaly. See, August 2015 VA Medical Opinion. Additionally, a May 2017 VA treating physician diagnosed the Veteran with chronic low back pain and associated right lower extremity with motor weakness. See May 2017 VA Treatment Record. Next, regarding an in-service incurrence, the Board notes that complaints of low back pain began after the February 2009 in-service injury. See STRs dated April 2009 and June 2009. Regarding the August 2015 examiner's characterization of the Veteran's condition as congenital in nature, VA regulations indicate that every veteran is presumed to be in sound condition upon entrance into active duty, except for defects or diseases noted on the entrance examination. See, 38 C.F.R. § 3.306(b). To rebut this presumption, VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In the instant case, no lumbar spine condition or back pain were noted on the Veteran's August 2008 periodic health assessment and February 2009 pre-deployment health assessment, which was completed prior to the February 28, 2009 in-service injury. See STRs dated August 2008 and February 2009. Relatedly, prior to the February 2009 injury, the Veteran reported that he had no low back pain. See August 2021 Board Hearing Trans. pg. 8. Further, the Veteran's in-service report regarding the beginnings of his low back pain mirrored his August 2021 Board hearing testimony regarding the pre-service condition and onset of his back symptomatology. See, Id.; see also, STRs dated April 2009 and June 2009. From the lack of documentation of any back problems prior to deployment, the Veteran's statements recorded in his STRs, and his August 2021 Board hearing testimony, the Board concludes that VA has not clearly and unmistakably demonstrated that the Veteran's lumbar spine disability preexisted service. Accordingly, the Board finds that the Veteran's lumbar spine symptoms began in service. Lastly, regarding a nexus between the current lumbar spine disability and symptoms that began in service, the Board notes that there are conflicting nexus opinions. The August 2015 VA examiner opined that the Veteran's lumbar spine disability was not related to his service because the Veteran's lumbar spine congenital anomaly caused his back pain. See August 2015 VA Medical Opinion. However, the August 2015 VA examiner did not address the Veteran's contentions that his back pain has been intermittent since the February 2009 in-service injury. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In contrast, the August 2017 private physician opined that the Veteran's lumbar spine disability was clearly associated with the February 2009 injury that the Veteran sustained. See August 2017 Private Medical Opinion. Unlike the August 2015 VA examiner, this physician considered the Veteran's lay statements regarding the onset of his low back pain and its continuity, when addressing whether there was a nexus to service. Moreover, as a layperson, the Veteran is competent to testify as to observable symptoms, such as the onset and continuity of low back pain. See, Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, the Board assigns more probative weight to the August 2017 private medical opinion. Moreover, the May 2017 VA treating physician stated that the Veteran's lumbar spine disability produced radicular symptoms in the right lower extremity. Specifically, the examiner stated the right lower extremity pain was suggestive of L5-S1 radiculopathy coupled with motor weakness limited to ankle dorsiflexion. See, May 2017 VA Treatment Record. Therefore, the Board also finds that the Veteran's right lower extremity radiculopathy is secondary to his lumbar spine disability. As each of the elements of service connection are met, the Board finds that service connection is warranted for the Veteran's lumbar spine disability and associated right lower extremity radiculopathy. 2. Migraine Headache Disability After reviewing the evidence of record, the Board finds that service connection for the Veteran's migraine headache disability is warranted. Here, the Board finds the August 2015 VA examiner confirmed the Veteran's diagnosis of migraine, including migraine variants. See August 2015 VA Examination. Therefore, the first element of service connection, a current disability, has been met. Second, the Board finds sufficient evidence of in-service incurrence based on the Veteran's STRs. See STRs dated February 2009 and April 2009. Following the in-service incident, the Veteran was diagnosed with a concussion and he received occupational therapy for migraine management. See April 2009 STR. Therefore, the second element of service connection, in-service incurrence, has been met. Finally, the Board finds that the record establishes a nexus between the Veteran's military service and his migraine disability. The Board notes that there is conflicting evidence as to whether the Veteran's migraine disability is related to his noise exposure in the military. The August 2015 VA examiner opined that the Veteran's migraine disability was not related to his service because there was a lack of continuity of post-traumatic headache symptoms within three months of the trauma. See, August 2015 VA Medical Opinion. However, the August 2015 examiner did not address the Veteran's STRs showing occupational therapy for migraine management and the Veteran's reports that his migraines continued since 2009. In contrast, the Veteran submitted an August 2017 private physician opined that he believes that his migraines almost certainly triggered by the concussion in 2009. See, August 2017 Private Medical Opinion. Unlike the August 2015 VA examiner, this physician considered the Veteran's lay statements regarding the onset of his migraines and its continuity, when addressing whether there was a nexus to service. Moreover, as a layperson, the Veteran is competent to testify as to observable symptoms, such as the onset and continuity of migraine pain. See, Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, the Board assigns more probative weight to the August 2017 private medical opinion. As each of the elements of service connection are met, the Board finds that service connection is warranted for lumbar spine disability. 3. Cervical Spine Disability After reviewing the evidence of record, the Board finds that service connection for the Veteran's cervical spine disability is warranted. Turning to the evidence of record, the Board finds that the Veteran's cervical spine disability was confirmed by the August 2015 VA examiner, who diagnosed the Veteran with a cervical strain. See August 2015 VA Medical Examination. Next, the Board finds that the evidence of record demonstrates an in-service incurrence of his cervical spine disability. Specifically, the Veteran has repeatedly stated that he began to experience cervical spine pain with limited range of motion following the February 2009 injury. See August 2015 VA Medical Examination and August 2021 Board Hearing Trans. pp. 14-17. Additionally, the Veteran's in-service medical records show that he was treated for cervical spine pain and limited range of motion. See STRs dated March 2009, April 2009, November 2009, and October 2010. As a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including discussing his continuous symptoms of experiencing cervical spine pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's reports of the onset of pain in service, and continuous symptoms of cervical spine pain since his service to be credible in the instant case. Lastly, regarding a link between the Veteran's groin disability and service, the Board finds that, as reported by the Veteran, his cervical spine pain began in service and has continued to the present. See August 2015 VA Medical Examination and August 2021 Board Hearing Trans. pp. 14-17. Again, as stated above, the Veteran is competent to identify his continuous cervical spine pain since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno, 6 Vet. App. at 465. In addition to the Veteran's statements, there is negative opinion evidence against the claim. The Board, however, affords the VA opinions little probative weight because the examiner failed to address the Veteran's contentions regarding continuity. The August 2015 VA examiner found that the Veteran's cervical spine disability was not related to service because he reported that he had no neck pain in October 2010. However, this examiner failed to address the October 2010 orthopedist notation that an MRI revealed that the Veteran had two compressed discs in his neck. See, October 2010 Orthopedic Consultation. Further, the examiner failed to consider the Veteran's lay statements regarding continual cervical spine pain and limited range of motion of his neck. See August 2015 VA Medical Examination and August 2021 Board Hearing Trans. pp. 14-17. Based on the Veteran's lay testimony and the evidence of record, the Board finds each of element of service connection is met. Accordingly, service connection for a cervical spine disability is warranted. REASONS FOR REMAND The Board finds that the Veteran has raised a secondary service connection claim for radiculopathy of the bilateral upper extremities, as secondary to his cervical spine disability. See August 2016 Statement in Support of Claim. However, it is unclear whether the Veteran continues to suffer from radiculopathy of the bilateral upper extremities and, if so, whether it is related to his cervical spine condition. Therefore, a VA examination is necessary to determine whether the Veteran's cervical spine disability has caused and/or aggravated his radiculopathy of the bilateral upper extremities. In Morgan v. Wilkie, the Court of Appeals for Veterans Claims (Court) held that the "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." 31 Vet. App. 162, 167 (2019). In doing so, the Court held this included secondary service connection. Id; see also, Long v. Wilkie, 33 Vet. App. 167 (en banc) (2020); Bailey v. Wilkie, 33 Vet. App. 188 (2021). Further, the Court held in Grimes v. McDonough that a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream, regardless of whether the claim is initially granted or denied by the RO. Grimes v. McDonough, 2021 U.S. App. LEXIS 18-1017, *8-11 (Fed. Cir. Apr. 28, 2021). Moreover, a claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran contends that his cervical spine disability has caused his radiculopathy of bilateral upper extremities. See August 2016 Statement in Support of Claim. After reviewing the record, the Board finds that there is no medical evidence addressing whether the Veteran's radiculopathy of the bilateral upper extremities was caused by or aggravated by his service-connected cervical spine disability. Therefore, a VA examination is needed to determine whether these conditions are related. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his radiculopathy of the bilateral upper extremities. See, Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. The RO should send the claims file to an appropriate VA examiner who has not previously participated in this case for an examination and medical opinion as to whether the Veteran currently has radiculopathy of the bilateral upper extremities conditions and whether it is related to service or his cervical spine disability. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. A notation indicating that the claims file and remand was reviewed should be included in the examination report. Following review of the file and this remand, the examiner is to address the following: (a.) Please determine whether the Veteran currently has radiculopathy of the bilateral upper extremities. In providing a response, please review the Veteran's March 2009 and November 2009 STR that document numbness in the Veteran's hands. See STRs dated March 2009 and November 2009. (b.) If the examiner determines that the Veteran currently has radiculopathy in the bilateral upper extremities, the examiner should determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current radiculopathy of the bilateral upper extremities had its clinical onset during service, to include whether it was related to the February 2009 in-service injury. In providing a response, please review the Veteran's March 2009 and November 2009 STR that document numbness in the Veteran's hands. See STRs dated March 2009 and November 2009. (c.) If you do not find that the Veteran's radiculopathy of the bilateral upper extremities did not have its clinical onset in service, please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's radiculopathy of the bilateral upper extremity was caused by the service-connected cervical spine disability. See STRs dated February 2009, March 2009, and November 2009. (d.) If you do not find that the Veteran's cervical spine disability caused the radiculopathy of the bilateral upper extremities, please state whether it is at least as likely as not that the Veteran's radiculopathy of the bilateral upper extremities was aggravated by his service-connected cervical disability. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). (e.) If you find that the Veteran's radiculopathy of the bilateral upper extremities has been aggravated by the Veteran's cervical spine disability, please estimate the baseline severity of the Veteran's radiculopathy of the bilateral upper extremities before they were aggravated by his service-connected cervical spine disorder. For the purpose of providing the opinion requested, please accept as valid the medical evidence noting hand numbness in service, and state whether a nexus between the Veteran's current radiculopathy and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). The examiner should provide a complete rationale for any opinion rendered. If the examiner's opinion is negative, he or she must clearly explain why. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.