Citation Nr: 21009380 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-28 980 DATE: February 22, 2021 ORDER Entitlement to service connection for a neck disability is granted. Entitlement to service connection for right upper extremity (RUE) radiculopathy, as secondary to a service-connected neck disability, is granted. REMANDED Entitlement to service connection for radiculopathy of the upper left extremity and bilateral lower extremities, to include as secondary to a service-connected neck disability, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his neck disability is at least as likely as not is related to active service. 2. The competent evidence of record shows that the Veteran’s RUE radiculopathy is at least as likely as not proximately due to or aggravated by his service-connected neck disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.7, 3.102, 3.303(a) (2019). 2. The criteria for service connection for RUE radiculopathy, as secondary to service-connected neck disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U.S. Army from May 1966 to May 1968, including service in Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In November 2014 the Veteran filed a notice of disagreement (NOD). In May 2018 the RO issued a statement of the case (SOC) and the Veteran submitted a substantive appeal. In a June 2019 decision, the Board remanded these issues for additional development, which has not been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the issues of service connection for a neck disability and for RUE radiculopathy, however, a remand for a new VA examination and/or opinion is not necessary because the evidence of record is sufficient to grant the Veteran’s claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. The Veteran’s appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2019). Service Connection VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the claimant’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for a recognized chronic disease can be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Service connection may also be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2019). 1. Entitlement to service connection for a neck disability is granted. The Veteran is seeking service connection for a neck disability. Specifically, he contends that the onset of his neck disability occurred as a result of his combat service in Vietnam, including a neck injury he sustained after an ambush on the convoy in which he was traveling. The Veteran further contends that as a result of the enemy attack, his vehicle crashed after striking a bomb crater, his neck was injured by shrapnel, and he was subsequently treated by a medic, including the injection of a muscle relaxant into his neck. The Veteran reports that he has suffered from worsening neck pain ever since. The Veteran tried alternative medicines and then underwent surgery in February 2011 to treat associated nerve damage and radiculopathy. See May 2018 SOC; April 2018 VA Examination; February 2018 DRO Hearing Tr.; March 2014 VA Treatment Record; February 2014 Statement in Support of Claim for Posttraumatic Stress Disorder. Following a review of the evidence of record, for the reasons described below, the Board finds that service connection for a neck disability is warranted. Regarding the first and secondary elements of service connection, the Veteran has a diagnoses multilevel degenerative disc disease and degenerative arthritis of the spine. See April 2018 VA Examination; January 2011 Private MRI Report. The Veteran’s service treatment records (STRs) also establish that the Veteran was treated for a neck disability during service. See September 1967 STR; December 1966 STR. Because the Veteran has a current diagnosis of a neck disability and was treated for a neck disability during service the first and second elements of service connection have been met. The salient question is whether the Veteran’s current neck disability is related to his in-service neck disability. Turning to the evidence of record, in a February 2011 private neurosurgical consultation report, the Veteran’s neurosurgeon reported that he had last seen the Veteran in June 2010 at which time he was having neck pain related to degenerative cervical disc disease dating back to an injury during service. Surgery was not recommended at that time. In January 2011, a day after having worked laying on his back all day, the Veteran felt pain in his neck that radiated down his arm. He developed pain and numbness that has gotten progressively worse. In a May 2013 private medical treatment record, the Veteran’s neck pain was described to have been worsening for years until December 2010, when the Veteran also developed right hand numbness and weakness. In a March 2014 VA treatment record, the Veteran reported having pain in his neck since Vietnam. He acknowledges having had a couple shots for it in Vietnam, but as the years have gone on his pain has worsened. In May 2015, an unidentified physician asserted that the Veteran’s current neck disabilities, which include disc disease and arthritis is at least as likely as not due to his inservice neck injury. See February 2018 DRO Hearing Tr. (claiming that this opinion is by his family doctor of eight years. In his February 2018 DRO hearing, the Veteran reported that during service he had two incidents. After the first incident he had neck spasms, and after the second, which was due to combat, the Veteran experienced mild neck pain that was treatable with medications. In the 1970s, the Veteran started seeing doctors about the pain and they suggested surgery, which the Veteran declined. Instead, the Veteran pursued physical therapy and acupuncture, until one day his hand would no longer open. Following service, the Veteran only had a desk job and was never involved in any accidents. The only trauma to his neck was in Vietnam. The Veteran asserted that his pain was there since service, it would flare-up with activity. In April 2018, the Veteran was afforded a VA examination. The Veteran reported that he first had neck problems in 1966 in Vietnam and that his neck pain has worsened since service. The examiner opined that the Veteran’s condition was less likely than not due to service. He explained that the Veteran did not mention neck pain on his separation examination or report back for follow up treatment during service. He noted that the Veteran’s condition is usually the product of the aging process. In his May 2018 VA Form 9, the Veteran asserted that in Vietnam he could not return for follow up treatment due to the nature of service which required him to run convoys. He stated that in Vietnam “you did your job” and that when he left service he focused on other matters than his neck pain. He has been unable to produce medical records from the 1970s due to the time period that has elapsed. In a January 2020 VA examination, the Veteran was assessed with cervical strain, degenerative arthritis and cervical herniated disk. The examiner opined that the Veteran’s condition was less likely than not related to service. He asserted that although the Veteran’s account of the events in service which resulted in neck pain were accurate the Veteran did not report neck pain on his separation examination. Therefore, a chronic neck problem was not established during service, nor noted followed service, and service connection is not warranted. Based on the foregoing evidence and resolving reasonable doubt in favor of the Veteran the Board finds that the nexus element of service connection has been met. Specifically, the Board finds that the opinions of record are of little, if any probative weight. The April 2018 VA examination is inadequate because it does not account for the Veteran’s lay assertions regarding pain since service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Likewise, the May 2015 private opinion is inadequate because it does not provide any rationale or bases for its conclusory statement. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The January 2020 VA examination is also inadequate because it does not account for the Veteran’s competent and consistent statements regarding pain in his neck since service nor the medical records indicating that the Veteran experience neck pain prior to his surgery in 2011. Furthermore, the examiner bases his opinion partially on a lack of treatment records following service and does not address the Veteran’s contention that the records for treatment immediately following service were not available due to the age of such records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006). The Board also notes that throughout the record, the Veteran has consistently and competently asserted that he injured his neck in service and has experienced neck pain since service. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, these assertions are supported by the medical record and there is no evidence in the record to suggest that the Veteran’s statements are not credible. See May 2013 Private Treatment Record; February 2011 Private Treatment Record. Accordingly, the lay evidence provided by the Veteran, which indicates a continuity of symptomology, is unquestionably credible evidence. In this respect, the Board finds the Veteran’s own reports of experiencing ongoing pain during and since service to be of significant probative value. See Savage v. Gober, 10 Vet. App. at 496 (“symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.”) Based on the foregoing, to include the VA and private opinions of little probative value and the Veteran’s credible assertions of continuity of symptomology since service of significant value, the Board finds that the evidence is at least in relative equipoise as to whether there the Veteran’s neck disability is related to service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the third element of service connection has been met. Gilbert, supra. Accordingly, the Veteran has a currently diagnosed neck disability and a positive nexus to his inservice neck injury has been established. The three elements necessary for service connection have therefore been met and the claim for service connection for a neck disability is granted. 2. Entitlement to service connection for RUE radiculopathy, as secondary to a service-connected neck disability, is granted. The Veteran is seeking service connection for RUE radiculopathy. Specifically, he contends that his RUE radiculopathy is due to his to his neck disability. See February 2018 DRO Hearing; February 2014 Claim. Following a review of the evidence of record, for the reasons described below, the Board finds that secondary service connection for a neck disability is warranted. As the Veteran has contended his disabilities are secondary to his neck disability and the evidence supports a finding that the Veteran is entitled to service connection on a secondary basis, this analysis will primarily focus on a secondary theory of service connection. Regarding the first and secondary elements of service connection, the Veteran has a diagnosis of cervical radiculopathy affecting the right hand. The Veteran has also herein been granted service connection for a neck disability. See December 2013 VA Treatment Record. Therefore, the first and second elements of secondary service connection have been met and the salient question is whether the Veteran’s RUE cervical radiculopathy is related to his service-connected neck disability. Regarding the third element of service connection, the Board finds the competent evidence of record shows that the Veteran’s cervical radiculopathy is related to his neck disability. Specifically, in February 2011, the Veteran’s treating physician assessed the Veteran with loss of motor control of his right hand due to C8 nerve compression. In a May 2013 private medical treatment record, following a physical examination, the physician note “clearly a proximal source of pathology in the cervical spine to what is manifesting as partial radial and ulnar nerve palsy.” Surgery was performed in June 2013, following which the Veteran was diagnosed with right brachial plexopathy with radial nerve palsy and a lack of finger extension. As noted above, in his February 2018 DRO hearing, the Veteran reported that following service, the Veteran only had a desk job and was never involved in any accidents. The Board acknowledges that the Veteran was afforded VA examinations in April 2018 and January 2020, in which the examiners did not find a positive nexus. In the April 2018 VA neck examination, the Veteran was found to have RUE radiculopathy with involvement of the C8/T1 nerve roots. The examiner opined that the Veteran’s condition was less likely than not due to service. He explained that the Veteran did not mention neck pain on his separation examination. He noted that the Veteran’s condition is usually the product of the aging process. In the January 2020 VA examination, the Veteran was assessed RUE radiculopathy. The examiner found involvement of the C7 nerve root and C8/T1 nerve roots. The examiner indicated that the Veteran’s radiculopathy was both related to his neck disorder and not related to his neck disorder. In his explanation, the examiner asserts that the Veteran has a herniated disk with eventual nerve palsy, leading to the present problem of right-hand contracture. He states that there is evidence that working on equipment around January 2011 caused a right-hand issue that was later diagnosed as cervical radiculopathy. These VA opinions are inadequate for adjudicative purposes. The April 2018 VA opinion is inadequate because it relied on a lack of treatment records and failed to consider the Veteran’s lay assertions. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The January 2020 VA opinion is likewise inadequate because internally inconsistent. The examiner asserts that the Veteran’s condition is both at least as likely as not and less likely than not due to service. He also fails to address whether the Veteran’s RUE radiculopathy was caused by or aggravated by his service-connected neck disability. Furthermore, the examiner asserts that the Veteran’s RUE radiculopathy and hand issues are due equipment he worked on in January 2011. This fact is not supported by the record which clearly indicates that the Veteran experienced right arm and hand pain following laying on his back for the entire day before at work, and given the Veteran’s assertions that laying on his back worsens his condition. See February 2011 Private Treatment Record; January 2011 Private Treatment Record. Accordingly, the Board affords these VA opinions little, if any, probative weight. Based on the foregoing, the Board finds that the evidence is at least in relative equipoise as to whether there is a positive medical opinion that establishes a link between the Veteran’s RUE radiculopathy and service-connected neck disability. As such, resolving reasonable doubt in the Veteran’s favor, the Board finds that the third element of service connection has been met. Gilbert, supra. Accordingly, the Veteran has RUE radiculopathy, is service connected for a neck disability, and a positive nexus has been established. As such, the three elements necessary for secondary service connection have been met and the claim for service connection for RUE radiculopathy, as secondary to service-connected neck disability, is granted. REASONS FOR REMAND 1. Entitlement to service connection for radiculopathy of the upper left extremity and bilateral lower extremities, to include as secondary to a service-connected neck disability, is remanded. The Veteran is seeking service connection for radiculopathy of upper left extremity and bilateral lower extremities. See June 2019 Board Decision. As indicated above, in a June 2019 decision, the Board remanded these claims for additional development and an opinion regarding secondary service connection. Pursuant to the remand instructions, in January 2020 VA the Veteran was afforded a VA examination. The Veteran was not found to have any left upper extremity or bilateral lower extremity radiculopathy at present. The examiner then opined that that the Veteran’s radiculopathy was both related to his neck disorder and not related to his neck disorder. Here, the VA examiner provided an internally inconsistent opinion and failed to opine as to whether the Veteran’s has had at any point during the period on appeal, upper left and/or bilateral lower radiculopathy. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the VA opinion obtained is inadequate for adjudication purposes, and the Board cannot make a fully informed decision on the issue. A remand for a new VA opinion is warranted. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate VA examiner regarding the nature and etiology of the Veteran’s left upper extremity and bilateral lower extremities. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The examiner should determine the following: (a) Identify any diagnosis of left upper and/or bilateral lower extremities radiculopathy during the pendency of the appeal (b) Determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed radiculopathy, had its onset during, or is otherwise related to, the Veteran’s military service. (c) Determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s diagnosed radiculopathy was (1) caused by or (2) aggravated by service-connected neck disability. In doing so, the examiner should address the Veteran’s inservice motor vehicle accident and contentions of radiculopathy in all four of his extremities in his September 2020 Appellate Br. The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If the opinion requested above cannot be provided without resort to speculation, the examiner must so state and indicate whether additional information is required. 2. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefit sought in connection with the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and given the opportunity to respond and appropriate period should be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.