Citation Nr: 21013314 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-11 643 DATE: March 9, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to a disability rating in excess of 20 percent for service-connected history of fracture of the C5 with resulting deformity and traumatic arthritis (a cervical spine disability) is denied. Entitlement to a disability rating in excess of 20 percent for service-connected radiculopathy of the left upper extremity is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disabilities are not secondary to a service-connected cervical spine disability, and are not otherwise related to an in-service event, injury, or disease. 2. Throughout the appeal period, the Veteran’s service-connected cervical spine disability has not more nearly approximated forward flexion of the cervical spine 15 degrees or less, favorable ankylosis of the entire cervical spine, or incapacitating episodes of intervertebral disc syndrome (IVDS). 3. Throughout the appeal period, the Veteran’s radiculopathy of the left upper extremity has been manifested by no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for a disability rating in excess of 20 percent for service-connected cervical spine disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5235. 3. The criteria for a disability rating in excess of 20 percent for service-connected radiculopathy of the left upper extremity have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8713. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to March 1989. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in February 2020 where the issues were remanded for additional development. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2019. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 1. Service Connection for a Lumbar Spine Disability Generally, to establish service connection, a claimant 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has a current lumbar spine disability. For example, at his August 2020 VA examination he was diagnosed with degenerative arthritis and IVDS. A previous VA examination in March 2014 diagnosed degenerative disc disease of the L1 and L2. While the Veteran’s service treatment records show no complaints, diagnosis, or treatment related to a lumbar spine or low back disability, the Veteran asserts that his current disability is related to an in-service incident where he fractured his cervical spine, for which service connection is currently in effect. He has stated that, while his in-service treatment for this injury focused only on the more severe of his injuries at the time (his fractured neck), he also experienced lower back pain after his in-service injury which has increased in severity in the years since. Additionally, several lay and buddy statements have suggested that the years of overcompensating for his cervical spine pain by twisting his entire upper torso at the lower back caused or aggravated his lumbar spine disability. Post-service, the evidence reflects a May 1989 VA examination for the purposes of his initial VA disability benefits claim after separation where he was evaluated for residuals of his in-service cervical fracture. While the Veteran reported “back and neck aches,” he did not specifically report lower back pain, and the examination report makes no reference to his lumbar spine. The Veteran was evaluated by a private medical provider the following November 1989 where he reported cervical and thoracic pain. Evaluation of the lumbar spine, however, was negative. Further, a VA spine examination was again afforded in August 2003 for evaluation of his cervical spine disability residuals, where he specifically denied any subjective complaints related to the lumbar spine. An additional private treatment record in March 2007 where he complained of continued upper back pain is negative for any lower back complaints. While the Veteran reported lower back pain to VA physicians in September 2007, it was noted to likely be “mostly muscular” at the time, and a subsequent lumbar spine X-ray in October 2007 was normal. A chronic lumbar spine disability is not suggested by medical evidence until his diagnosis of degenerative arthritis upon VA examination in March 2014, many years after the Veteran’s separation from service. As a chronic disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of the Veteran’s current lumbar spine disability cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s medical history, including the aforementioned May 1989 VA examination and November 1989 private treatment record that were negative for lumbar spine complaints in the year following service, and subsequent medical records through at least 2007 where the Veteran complained of upper back and neck pain, but not low back pain. If the Veteran was also experiencing problems with his lumbar spine during these occasions the Board would expect that he would have reported these problems to medical professionals. The Board finds these post-service reports to be more reliable than more recent assertions as they were done closer to service and for the purpose of identifying a disability at that time. A VA examination was first afforded to the Veteran in March 2014. The examiner opined that the Veteran’s lumbar spine disability was most likely due to aging and his work history as a service technician for various manufacturers. No opinion was provided as to whether the residuals of his cervical spine fracture caused or aggravated his lumbar spine disability on a secondary service connection basis. As such, the Board remanded the Veteran’s claim in February 2020 for a new examination and opinion, which was obtained in August 2020. The Board notes, however, that the August 2020 examiner simply opined that the Veteran’s cervical spine disability “does not have an impact on chronic pain of the lower back which started after [the] Veteran’s Military service,” and that the cervical spine disability “would not cause an aggravation or worsening progression of a lumbar spinal disease,” without any rationale. The RO, however, obtained an extensive addendum opinion the following October 2020 which is against the claim. The examiner noted that the Veteran’s service records are absent any lumbar complaints or diagnosis during service. Post-service, the examiner acknowledged that a November 1989 treatment record indicated thoracic pain, which the Board notes could indicate evidence of a thoracolumbar disability. As the examiner notes, however, there was no actual separate thoracic disability diagnosed nor was there any lumbar condition, and the physician’s summation at the time implied that the Veteran’s symptoms at the time were all part and parcel of his cervical condition. Moreover, the examiner continued, the subsequent VA examination in 2003 was a combined cervical/thoracic/lumbar spine examination where the Veteran specifically denied lumbar pain. While thoracic pain was again indicated, no separate thoracic condition was diagnosed, and the Veteran’s symptoms were again implied to have been part and parcel to his cervical condition. The first clinical evidence of a lumbar condition was not until at least 2007. Based on the foregoing, the examiner opined that it was less likely than not that the lumbar spine disability was “overlooked” at the time of his neck injury as the Veteran asserts, explaining that the Veteran was hospitalized for three days after his accident and had followup physical therapy, at which time any stiffness or difficulty moving his back would have been noticed. Additionally, there are multiple outpatient followup visits which documented good improvement in cervical symptoms and normal cervical range of motion, at which time any lumbar area symptoms would have been easy to either discuss or discern. The examiner further explained that the 1989 statement about thoracic pain is not pertinent to a claim for a lumbar condition since the thoracic area symptoms were contiguous with the cervical spine issue, explaining that the trapezius muscle, which begins at the neck and extends to the upper thoracic area, is often “tight” after cervical injuries and is commonly perceived by affected persons as being thoracic area pain. However, this “extension” into the thoracic area does not usually amount to a separate condition from the cervical condition and no separate thoracic condition was ever formally diagnosed for this Veteran. Thus, these symptoms are mechanically distant from the current lumbar symptoms being claimed and are not evidence of a lumbar condition following service. The examiner also opined that it was less likely as not that the Veteran’s lumbar spine disability is caused or aggravated on a secondary basis due to “overcompensation” as the Veteran asserts, explaining that, while it is true that persons with loss of cervical range of motion do indeed often use their thoracic and even lumbar spines to do the motions that a head turn might otherwise have done, such use and “twisting” of the thoracic and lumbar spines is not detrimental to the health of the vertebral column. Rather, the examiner continued, range of motion activities are actually beneficial to vertebral spine health, which is why yoga and stretching exercises are routinely advised. Thus, the proposed mechanism of a secondary injury via overcompensation is not medically plausible absent cases where surgical fusion has been necessary, which is not the case here. The Veteran’s medical lumbar spine history, including the onset of radiculopathy and mild diagnostic findings in the mid 2010’s, is more consistent with a natural onset, i.e., aging. The Board finds the above opinions, as a whole, highly probative as they were made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is also no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that his lumbar spine disability is related to service or his service-connected neck disability. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., lower back pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Ratings for Cervical Spine Disability and Left Upper Extremity Radiculopathy The Veteran is currently assigned a 20 percent disability rating for a service-connected cervical spine disability, as well as a 20 percent rating for associated left upper extremity radiculopathy. This appeal stems from an October 2015 claim for increased ratings for these disabilities. At his December 2019 hearing before the undersigned, the Veteran asserted that the severity of his disability warranted a higher rating, and described symptoms of constant pain that radiated down to his upper extremities that affected the range of motion in his neck. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Regarding the cervical spine disability, regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When IVDS is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Spinal Formula provides for a 20 percent disability rating when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, when the combined range of motion of the cervical spine is not greater than 170 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the cervical spine is to 45 degrees and the normal combined range of motion is 340 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12 month period. As an initial matter, while the record reflects a diagnosis of IVDS in the Veteran’s cervical spine (see August 3, 2020 VA Neck Conditions Disability Benefits Questionnaire ), there is no competent evidence of incapacitating episodes as defined by regulation of the duration required for a higher rating. As such, the IVDS Formula is not for application in this case. During the appeal period the Veteran underwent VA examinations in December 2015, January 2017, and August 2020. Range of motion testing was performed and showed, at worst, forward flexion to 25 degrees and a combined range of motion no less than 145 degrees. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The Board acknowledges that, while the Veteran reported flare-ups of neck pain resulting in a reduced ability to look down during the initial VA examination in December 2015, the examiner did not provide estimated range of motion during a flare-up or after repetitive use over time. However, upon examination in January 2017 and again in August 2020, the examiners did estimate range of motion during flare-up and after repetitive use over time, and opined that flexion and combined range of motion would be no worse than the range of motion noted above. Thus, the Board finds that the range of motion findings on examination, as a whole, depict the estimated range of motion during a flare-up and after repetitive use over time. Treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher rating is not warranted based on limitation of motion. Ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran. While the more recent VA examination in August 2020 does note muscle spasms and guarding, the examiner indicated that they did not result in abnormal gait or abnormal spinal contour. Based on the foregoing, as the Veteran’s cervical spine disability during the appeal has not more nearly approximated forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine, a higher, 30 percent rating, is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5235. Thus, the Veteran’s claim for an increased rating for his cervical spine disability must be denied. 38 C.F.R. §§ 4.3, 4.7. Regarding the Veteran’s service-connected left upper extremity radiculopathy, the Veteran has been in receipt of a 20 percent rating for this disability pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8713, as associated with his cervical spine disability, since September 2013. Along with his cervical spine claim, he filed an increased rating claim for this disability in October 2015. Diagnostic Code 8713 provides the rating criteria for neuralgia of all radicular groups. Under Diagnostic Code 8713, a 20 percent rating is warranted for mild incomplete paralysis of both the major and minor extremity; moderate incomplete paralysis warrants a 30 percent rating for the minor extremity and a 40 percent rating in the major extremity; severe incomplete paralysis warrants a 60 percent rating for the minor extremity and a 70 percent rating in the major extremity; complete paralysis warrants an 80 percent rating for the minor extremity and a 90 percent rating in the major extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8713. The Board notes that in rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. Additionally, the terms “major” and “minor” are used in the rating criteria to refer to the dominant or non-dominant upper extremity. See 38 C.F.R. § 4.69. Here, while an August 2020 VA examination indicates that the Veteran is ambidextrous, previous examinations in 2015 and 2017 indicate that he is right hand dominant. Regardless, based on the foregoing, the evidence is against a finding that his left upper extremity radiculopathy is more than mild in severity. In that regard, VA neck examinations, which included relevant testing to ascertain the severity of any associated radiculopathy, were afforded in December 2015, January 2017, and August 2020. While there was no evidence of radicular pain or any other signs or symptoms due to radiculopathy in the Veteran’s upper extremities upon examination in December 2015, the VA neck examiner in January 2017 indicated mild incomplete paralysis in the upper radicular group, bilaterally. The Board notes that, while the August 2020 VA neck examination noted moderate incomplete paralysis of the upper, middle, and lower radicular groups, bilaterally, a contemporaneous VA peripheral nerves examination (which is a more thorough neurological examination) indicated only mild incomplete paralysis. In this regard, upon VA examination, the Veteran indicated subjective symptoms of mild upper extremity pain, numbness, and tingling. While sensation was decreased in the upper extremities, and muscle strength was slightly reduced in wrist flexion, wrist extension, and grip, reflexes were normal on objective testing. The examination findings considered the Veteran’s complaints when determining that the level of severity of his upper extremity radiculopathy was only mild. There are no medical treatment records in significant conflict with the VA examination findings during the appeal. As such, the Board finds the evidence against a finding that the Veteran’s radiculopathy in his left upper extremity has more closely approximated moderate incomplete paralysis, the criteria for a higher 20 percent rating under Diagnostic Code 8713. See 38 C.F.R. §§ 4.3, 4.7, 4.124a. While the Board notes that the Veteran has been separately awarded a 20 percent rating in his right upper extremity during the appeal effective October 16, 2016, he has not expressed disagreement with the rating assigned or its effective date. Regardless, for the reasons above, neither a higher rating from October 2016, nor a compensable rating for the period prior, is warranted. Muscle strength, sensation, and reflexes were intact upon examination in December 2015, and the severity of his bilateral upper extremity radiculopathy upon examination in 2017 and again in 2020 was no more than mild. While the Board also acknowledges that multiple radicular groups are also affected in the Veteran’s upper extremities, assigning a separate rating on the basis of paralysis of additional peripheral nerves would violate the rule against pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). The Board is sympathetic to the Veteran’s lay statements that his cervical spine and associated upper extremity radiculopathy disabilities are worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. (Continued on the next page.) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.