Citation Nr: 21013142 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-41 096 DATE: March 8, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. REMANDED Entitlement to an initial disability rating in excess of 20 percent prior to April 15, 2015, and 40 percent thereafter, for lumbar strain with mild scoliosis and kyphosis is remanded. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, it is at least as likely as not that the Veteran’s cervical spine disability is related to his service-connected lumbar strain with mild scoliosis and kyphosis. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 until January 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from September 2013 and August 2014 Department of Veterans Affairs (VA) regional office (RO) rating decisions. The Board notes that in a May 2015 rating decision, service connection for radiculopathy, left lower extremity as secondary to the service-connected lumbar strain disability, was granted and a 10 percent initial rating was assigned, effective April 15, 2015. Notice of this decision was provided to the Veteran in September 2015. In March 2016, the Veteran submitted a notice of disagreement as to the rating assigned for radiculopathy, left lower extremity. In a December 2017 supplemental statement of the case, the RO advised that while the notice of disagreement was received, this issue is intertwined with the increase for the lumbar spine disability already on appeal. Therefore, the issue is considered to be on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 44 (2009). The Veteran participated in a hearing before the undersigned in May 2019. VA was unable to produce a written transcript due to audio malfunctions. In November 2020, VA informed the Veteran of this and offered him the opportunity to testify at another hearing per 38 C.F.R. § 20.717. The Veteran has not responded. Therefore, the Board will review the evidence of record and adjudicate the issues. Preliminarily, a review of the evidence reflects that the issue of a TDIU has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. In light of evidence associated with the Veteran’s claims file during the appeal period, to include the June 2019 private examination, the Board finds that the issue of entitlement to a TDIU is reasonably raised by the record and considered to be part of the Veteran’s appeal, as is reflected on the title page of this decision. Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted 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). Service connection requires competent evidence showing (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). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Before deciding a claim, the Board is required to evaluate all relevant evidence on appeal, including lay and medical evidence. See 38 U.S.C. § 7104(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a determination as to the competency, credibility, and weight of the evidence. Lay evidence may be competent and sufficient to establish a claim for service connection. Specifically, lay evidence may be sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must then determine whether the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of the relevant evidence, the Board must weigh its probative value. The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected lumbar strain with mild scoliosis and kyphosis The Veteran contends that he is entitled to service connection for a cervical spine disability as secondary to his service-connected lumbar strain. The Board agrees. The first element for secondary service connection is satisfied in that the Veteran is diagnosed with osteoarthritis and intervertebral disc syndrome. Wallin v. West, 11 Vet. App. 509, 512 (1998). The second element for secondary service connection is also satisfied as the Veteran is service-connected for a lumbar strain with mild scoliosis and kyphosis. Id. The remaining determination, therefore, is whether there is a link between the two. An October 1969 entrance examination indicates that the Veteran has mild scoliosis. A November 2012 statement from the Veteran’s primary care physician states that the Veteran had a past history of lumbago and that the Veteran slipped and fell in 1970 while serving at Fort Lewis injuring his back. The private physician stated that the Veteran’s low back pain has been gradually progressing. April 2013 radiology reports diagnoses the Veteran with moderate to advanced degenerative changes of the cervical spine. At a July 2014 VA examination, the VA examiner diagnosed the Veteran with degenerative arthritis and intervertebral disc syndrome. The examiner opined that the Veteran’s cervical spine disability was less likely than not proximately due to his service-connected lumbar strain with scoliosis and kyphosis. The examiner reasoned that the Veteran’s scoliosis and kyphosis do not affect his gait or stance and, therefore, “there is no affect upon the more proximal, or cervical, spine to cause arthritic changes.” At an April 2015 thoracolumbar spine VA examination, the VA examiner noted that the Veteran walked with an antalgic gait due to his service-connected low back disability. At the June 2019 private examination, the Veteran reported his military neck injuries while serving at Fort Lewis. The Veteran stated that he is “still troubled by significant neck pain” and that he has had difficulty with neck rotation laterally to the left and right and with neck flexion and extension. The private examiner opined that the Veteran’s cervical spine disability is related to his service-connected lumbar strain, specifically, his 1970 fall. The examiner reasoned that in his experience with patients diagnosed with scoliosis, “when they have a superimposed injury, often have more severe pain and more chronic symptoms.” The examiner also explained that “although scoliosis might be noted in the lumbar region, the entire spine is actually affected” in that “a condition that affects one area of the spine also easily influences another area of the spine.” Upon careful review of the record, the Board finds that entitlement to service connection for a cervical spine disability is warranted. In so finding, the Board assigns great probative value to the June 2019 private opinion. The probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The June 2019 opinion is based upon a thorough review of the record and an examination of the Veteran, and the treatment provider concluded that the Veteran’s cervical spine disability is attributable to his service-connected lumbar strain with mild scoliosis and kyphosis as it “easily influences” his cervical spine. Resolving all doubt in favor of the Veteran, the Board thus finds that the evidence supports the existence of a relationship between the Veteran’s cervical spine disability and his service-connected lumbar strain with mild scoliosis and kyphosis. Therefore, the Board finds that the final element for secondary service connection has been met. Entitlement to service connection for a cervical spine disability, on a secondary basis, is warranted; and the claim is granted. TDIU Before proceeding to adjudicate the TDIU claim, the Veteran should be provided a VA Form 21-8940 to complete and should be given the opportunity to provide any relevant information regarding his employment history, education, and training. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 20 percent prior to April 15, 2015, and 40 percent thereafter, for lumbar strain with mild scoliosis and kyphosis is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy is remanded. The Veteran was last afforded VA examinations regarding his lumbar strain and left lower radiculopathy in April 2015. The evidence of record, especially the June 2019 private examination, indicates that these disabilities have worsened since the last VA examination. The Board thus finds that the Veteran should be afforded new VA examinations in order to determine the current nature and severity of these service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 3. Entitlement to an evaluation of total disability because of individual unemployability (TDIU) is remanded. Two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered. Because a decision on the other issues remanded here could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). 2. Obtain all the outstanding treatment records that are not currently of record. 3. Thereafter, schedule the Veteran for an examination with an appropriate examiner to address the current severity of his service-connected lumbar strain with scoliosis and kyphosis and any associated neurological abnormalities. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Any necessary diagnostic testing, to include neurological testing, must be conducted. All pertinent symptomatology and findings must be reported in detail. The examiner must address each of the following: (a) Range of motion measurements must be included for the Veteran’s spine disability in both active and passive motion and in weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If the examiner is unable to conduct the required testing for any joint or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, limitation of motion, or limitation of function, such facts must be noted in the report. The examiner should also express an opinion concerning whether there is additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so; a rationale indicating that the Veteran is not having a flare-up at the time of the examination, without more explanation, will not be deemed adequate. In forming any opinions, the Board emphasizes that the Veteran is competent to report his symptoms are when they began. Additionally, the VA examiner must specifically discuss the June 2019 private examination and the functional effects of the Veteran’s lumbar spine disability. (b) In addressing the Veteran’s neurological symptoms, the examiner should consider and discuss the June 2019 private examination. Furthermore, the examiner must identify any nerve involved, and address the severity of the Veteran’s service connected left lower extremity radiculopathy. For any affected nerve, the examiner should indicate whether there is complete or incomplete paralysis. For any incomplete paralysis, the examiner should characterize the severity of that paralysis in terms of mild, moderate, moderately severe, or severe. The examiner should indicate whether there is muscular atrophy and, if so, the extent of such atrophy. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.