Citation Nr: 21013417 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-14 362A DATE: March 9, 2021 ORDER Service connection for cervical spine disability is denied. Service connection for right upper extremity cervical radiculopathy, to include as secondary to cervical spine disability, is denied. Service connection for left upper extremity cervical radiculopathy, to include as secondary to cervical spine disability, is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran’s current cervical spine disability had its onset during any period of active duty service; manifested to a compensable degree within the applicable presumptive period; had continuity of symptomatology; or is otherwise etiologically related to his active duty service. 2. The preponderance of the evidence of record is against a finding that the Veteran’s current right upper extremity cervical radiculopathy had its onset during any period of active duty service; manifested to a compensable degree within the applicable presumptive period; had continuity of symptomatology; or is otherwise etiologically related to his active duty service. 3. The preponderance of the evidence of record is against a finding that the Veteran’s current left upper extremity cervical radiculopathy had its onset during any period of active duty service; manifested to a compensable degree within the applicable presumptive period; had continuity of symptomatology; or is otherwise etiologically related to his active duty service. 4. The Veteran does not meet the schedular criteria for TDIU, nor does the record reflect probative evidence for referral under extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for right upper extremity cervical radiculopathy, to include as secondary to cervical spine disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for left upper extremity cervical radiculopathy, to include as secondary to cervical spine disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from August 1981 to August 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. These matters were previously before the Board in January 2019 and August 2020, where they were remanded for additional development. The Board notes that there was substantial compliance with its August 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Additionally, service connection may be granted on a secondary basis for a condition that is not directly caused by the Veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities, and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). Furthermore, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). Certain “chronic diseases” may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for cervical spine disability. The Veteran contends that his current cervical spine disability is directly related to his active duty service, specifically from his duties as a jeep/truck driver and riding/driving in off-road vehicles. As an initial matter, the Board notes that a review of the record reflects the Veteran was given a diagnosis of degenerative arthritis of the cervical spine in October 2019. See C&P Exam, October 2019. As arthritis is considered to be a “chronic disease” under 38 C.F.R. § 3.309(a), the Board finds that consideration of the Veteran’s cervical spine disability claim for presumptive service connection is warranted. 38 C.F.R. §§ 3.307, 3.309. After review of the record, the Board finds that service connection is not warranted for the Veteran’s degenerative arthritis of the cervical spine as a chronic disease under the provisions of 38 C.F.R. §§ 3.307 and 3.309, as the medical evidence establishes that this condition was first diagnosed in October 2019, which is approximately 35 years after the Veteran’s separation from active duty service. As noted above and in this case, chronic diseases, such as arthritis, are only subject to presumptive service connection if manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Additionally, the record does not reflect that a diagnosis of a chronic cervical spine condition was noted during service; nor does the record reflect that the Veteran has had a continued cervical spine condition of arthritis since active duty service. Therefore, as the Veteran’s degenerative arthritis of the cervical spine was not incurred until decades after service, with no probative evidence of continuity of symptomatology, presumptive service connection for this disability as a chronic disease is not warranted. Nevertheless, although service connection on a presumptive basis is not applicable, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the evidence of record does not support a conclusion that any of the Veteran’s cervical spine disability was etiologically related to his active duty service. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of a cervical spine disability. Post-service VA medical treatment records beginning March 1999 reflect complaints and treatment for cervical neck pain, with MRI/X-ray results revealing posterior disc osteophyte complex at C5-C6 and C5-C6 neural foraminal narrowing due to uncovertebral hypertrophy, and diagnoses of degenerative joint disease of the cervical spine and cervical radiculopathy given. In October 2019, the Veteran was afforded a VA examination to assess the current nature and etiology of his claimed condition. Upon examination, the examiner diagnosed the Veteran with degenerative disc disease of cervical spine with radiculopathy, with an onset in 2019 with awakening of symptoms; however, provided an unfavorable opinion as to this condition being etiologically related to the Veteran’s active duty service. The examiner rationalized that the Veteran’s spinal pain and issues became apparent 23 years after discharge from service, and therefore, it is unlikely to have been caused by his military service. See C&P Exam, October 2019. Nevertheless, the Board in its August 2020 decision found this opinion to be inadequate for adjudicative purposes, as the examiner failed to consider and/or discuss the Veteran’s contended in-service event/injury as a possible cause of his current disability. See BVA Decision, August 2020. The Board here agrees; therefore, the Board assigns this opinion little, if any, probative weight. In response to the October 2019 VA opinion inadequacy, the Veteran was afforded an addendum VA medical opinion in September 2020. Upon review of the Veteran’s claims file, the examiner provided an unfavorable opinion as to the Veteran’s current cervical spine disability having an onset during any period of active duty service, manifesting within one year of discharge from service, or being etiologically related to the Veteran’s active duty service. The examiner rationalized that the Veteran’s STRs did not contain complaints, issues, events, diagnosis or treatment with regards to his neck (specifically noting that the separation exam dated July 1984 reports normal head face neck and with a marked “no” on bone joint or other deformity); with interim medical records from 1985 through 1998 showing no onset or complaints of neck pain. Additionally, the examiner noted the Veteran’s contentions of his duties as a jeep driver and riding in jeeps causing his cervical spine disability; however, countered that the medical records revealed limited objective evidence to substantiate onset and chronicity of a neck condition in relation to his military occupation during active duty – noting that any excessive neck muscle force or muscle injury from physical activity will demonstrate significant amount of pain close to date and time of the event/injury. Therefore, the examiner concluded that the likely cause of the Veteran’s current cervical spine disability is from the Veteran’s post-military occupation of actively working as a painter and painting commercial building for more than 10 years, compounded by post-military injuries such as a fall from a bus and/or ice. See C&P Exam, September 2020. Based on the above, the Board finds this medical opinion to be highly probative, as this examiner provided an extensive and clear rationale based on a complete review of the Veteran’s claims file, with adequate consideration of accurate and factual medical and service history, and the Veteran’s lay statements. The Board has considered the Veteran’s lay statements that his current cervical spine disability is related to his active duty service; however, the matter of etiology is not of lay observation but rather can only be established through objective clinical testing or observations. The Veteran is not shown to have the medical training or knowledge to provide an opinion relating a cervical spine disability to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Board finds that the preponderance of the probative evidence of record is against the Veteran’s claim, and entitlement to service connection for cervical spine disability is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim is denied. 2. Entitlement to service connection for right upper extremity cervical radiculopathy, to include as secondary to cervical spine disability. 3. Entitlement to service connection for left upper extremity cervical radiculopathy, to include as secondary to cervical spine disability. The Veteran contends that his current bilateral upper extremity cervical radiculopathy is directly related to his active duty service, specifically from his duties as a jeep/truck driver and riding/driving in off-road vehicles; or is otherwise proximately caused and/or aggravated by his cervical spine disability. As an initial matter, the Board notes that the Veteran’s cervical spine disability is not service-connected; and therefore, consideration of this claim on a secondary basis is not warranted. Additionally, the Board further notes that radiculopathy is considered to be a “chronic disease” (specifically noted as “other organic diseases of the nervous system”) under 38 C.F.R. § 3.309(a), and therefore, the Board finds that consideration of the Veteran’s bilateral upper extremity cervical radiculopathy claim for presumptive service connection is warranted. 38 C.F.R. §§ 3.307, 3.309. However, after review of the record, the Board finds that service connection is not warranted for the Veteran’s bilateral upper extremity cervical radiculopathy as a chronic disease under the provisions of 38 C.F.R. §§ 3.307 and 3.309, as the medical evidence establishes that this condition was first diagnosed in January 2007, which is more than 22 years after the Veteran’s separation from active duty service. As noted above and in this case, chronic diseases, such as radiculopathy, are only subject to presumptive service connection if manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Additionally, the record does not reflect that a diagnosis of radiculopathy or any other neurological condition of the cervical spine was noted during service; nor does the record reflect that the Veteran has had a continued bilateral upper extremity cervical radiculopathy or neurological condition since active duty service. Therefore, as the Veteran’s bilateral upper extremity cervical radiculopathy was not incurred until decades after service, with no probative evidence of continuity of symptomatology, presumptive service connection for this disability as a chronic disease is not warranted. Nevertheless, although service connection on a presumptive basis is not applicable, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the evidence of record does not support a conclusion that any of the Veteran’s bilateral upper extremity cervical radiculopathy was etiologically related to his active duty service. STRs reflect one complaint and treatment for right hand pain with limited range of motion in 1982; however, no diagnosis of radiculopathy or any other neurological condition was given. Post-service VA medical treatment records beginning March 1999 reflect complaints and treatment for occasional upper arm/extremity numbness, weakness, and pain consistent with cervical radiculopathy. In October 2011, the Veteran was afforded a VA examination to assess the current nature and etiology of his claimed conditions. Upon examination, the examiner diagnosed the Veteran with degenerative disc disease of the cervical spine with radiculopathy, with an onset in 2007; however, provided an unfavorable opinion as to this condition being etiologically related to the Veteran’s active duty service. The examiner rationalized that the physical exams and medical records are silent for any documented evidence of pain down both arms or chronicity of the condition; therefore, concluding that since there are no indications of any claimed condition of pain down both arms the condition did not begin during military service. See VA Examination, October 2011. Nevertheless, the Board finds this opinion to be inadequate for adjudicative purposes, as the examiner’s opinion is based on inaccurate facts, as the record does reflect documented evidence of the Veteran’s complaints of pain of the bilateral upper extremities; and thus, assigns this this opinion little, if any, probative weight. In October 2019, the Veteran was afforded another VA examination to reassess the current nature and etiology of his claimed conditions. Upon examination, the examiner noted that the Veteran does not have diagnosis of bilateral upper extremity cervical radiculopathy, as there are no findings, signs, and/or symptoms to support a diagnosis; and provided an unfavorable opinion as to any upper extremity radiculopathy being etiologically related to the Veteran’s active duty service, to include as secondary to a cervical spine disability. The examiner rationalized that the Veteran’s spinal pain and issues became apparent 23 years after discharge from service, and therefore, it is unlikely to have been caused by his military service. See C&P Exam, October 2019. Nevertheless, the Board in its August 2020 decision found this opinion to be inadequate for adjudicative purposes, as the examiner provided conflicting evidence regarding the notion that there were no symptoms to support a diagnosis of upper extremity radiculopathy (noting that the examiner specifically reported the Veteran’s symptoms attributable to a peripheral nerve condition to include intermittent pain, paresthesias and/or dysthesias, and numbness), with the record also reflecting a diagnosis of cervical radiculopathy given in 2007 with no adequate explanation in a change of diagnosis; as well as, the examiner failing to consider and/or discuss the Veteran’s contended in-service event/injury as a possible cause of his current disabilities. See BVA Decision, August 2020. The Board here agrees; therefore, the Board assigns this opinion little, if any, probative weight. In response to the October 2019 VA opinion inadequacy, the Veteran was afforded an addendum VA medical opinion in September 2020. Upon review of the Veteran’s claims file, the examiner provided an unfavorable opinion as to the Veteran’s current bilateral upper extremity cervical radiculopathy having an onset during any period of active duty service, manifesting within one year of discharge from service, or being etiologically related to the Veteran’s active duty service. The examiner rationalized that the Veteran’s STRs did not contain complaints, issues, events, diagnosis or treatment with regards to his neck (specifically noting that the separation exam dated July 1984 reports normal head face neck and with a marked “no” on bone joint or other deformity); with interim medical records from 1985 through 1998 showing no onset or complaints of neck pain. Additionally, a peripheral nerve condition VA examination in October 2011 noted the Veteran’s reports in 1997 of having issues with his spine, with the Veteran specifically stating that he has not been treated for his spine issues, suggesting that the cervical spine was previously stable. Furthermore, the examiner noted the Veteran’s contentions of his duties as a jeep driver and riding in jeeps causing his cervical spine disability with radiculopathy that took years to develop; however, countered that the medical records revealed limited objective evidence to substantiate onset and chronicity of a neck condition, to include radiculopathy, in relation to his military occupation during active duty – noting that any excessive neck muscle force or muscle injury from physical activity will demonstrate significant amount of pain close to date and time of the event/injury. Therefore, the examiner concluded that the likely cause of the Veteran’s current cervical spine disability with radiculopathy is from the Veteran’s post-military occupation of actively working as a painter and painting commercial building for more than 10 years, compounded by post-military injuries such as a fall from a bus and/or ice. See C&P Exam, September 2020. Based on the above, the Board finds this medical opinion to be highly probative, as this examiner provided an extensive and clear rationale based on a complete review of the Veteran’s claims file, with adequate consideration of accurate and factual medical and service history, and the Veteran’s lay statements. The Board has considered the Veteran’s lay statements that his current bilateral upper extremity cervical radiculopathy is related to his active duty service; however, the matter of etiology is not of lay observation but rather can only be established through objective clinical testing or observations. The Veteran is not shown to have the medical training or knowledge to provide an opinion relating a bilateral upper extremity cervical radiculopathy to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Board finds that the preponderance of the probative evidence of record is against the Veteran’s claim, and entitlement to service connection for bilateral upper extremity cervical radiculopathy is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claims are denied. 4. Entitlement to TDIU due to service-connected disabilities. The Veteran contends that he is unemployable due to his service-connected disabilities. TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation resulting from a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether unemployability exists due to a service-connected disability or disabilities, consideration may be given to the Veteran’s level of education, special training, and previous work experience; however, age and impairment caused by nonservice-connected disabilities are not factors for consideration. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of TDIU. 38 C.F.R. §§ 3.341, 4.16, 4.19. Also, it is necessary that the record reflect some factor(s) that places the Veteran in a different category than other veterans with equal ratings of disability. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran’s service-connected disabilities include the following: tinnitus, rated as 10 percent disabled from May 15, 2003; hearing loss left ear, rated as noncompensable from May 15, 2003 to August 23, 2010; left thumb scar, rated as noncompensable from August 15, 2006; and bilateral hearing loss, rated as noncompensable from August 23, 2010. Based on this, the Veteran has a combined schedular rating of 10 percent; and therefore, does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). Nevertheless, where a veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board may nevertheless refer the claim to the Director of Compensation Service for extraschedular consideration if the veteran is unable to secure and/or maintain substantially gainful employment by reason of service-connected disabilities. See Wages v. McDonald, 27 Vet. App. 233 (2015). However, a review of the record does not show and/or suggest that his service-connected disabilities rendered him unemployable, nor has the Veteran supplied any probative evidence to the contrary. The Veteran filed a VA 21-8940 claim for TDIU in June 2012; which revealed that he last worked full-time in July 2011 as a tower technician/painter. Additionally, the record reflects that the Veteran also worked as a steelworker, journeyman, and auto mechanic. Information received from the Veteran shows that he has a high school diploma with additional certifications in welding, auto technician, and tower painting. Lay statements submitted by the Veteran reflect his contentions of it being impossible for him to find any type of employment, as he is unable to move to do work due to pain levels being off the scale; as well as, the following restrictions: inability to stand for more than a few minutes at a time, inability to sit for very long due to pain, and no thumb to hold things. VA treatment records from 2012 reflect continuous complaints of and treatment for service-connected disabilities. In the April 2012 VA examination to assess the Veteran’s hearing loss and tinnitus, the examiner noted that there were significant effects on the Veteran’s occupation, as he reports having difficulty hearing speech in noise and high pitch sounds. See VA Examination, April 2012. In the October 2019 VA examination to reassess the Veteran’s hearing loss and tinnitus, the examiner noted that only the Veteran left ear hearing loss impacts his ability to work as the Veteran cannot hear out of that ear. See C&P Exam, October 2019. While the Board acknowledges the functional impairment resulting from the Veteran’s service-connected disabilities noted above, the Board finds that the evidence of record, in its totality, does not demonstrate that said disabilities resulted in the Veteran’s inability to secure and follow gainful employment. Significantly, the evidence of record does not reflect that the Veteran’s service-connected disabilities manifested symptoms of such severity as to impact his employability beyond what is contemplated by the assigned schedular. The severity of the Veteran’s service-connected symptomatology was specifically contemplated by assigned evaluations; and whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Critically, for the above reasons, the evidence of record does not support a conclusion that his service-connected disabilities alone made him unemployable; thus, there is no basis to refer the Veteran’s case for consideration of an extraschedular evaluation. Id. at 1354 (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Therefore, although the Veteran’s service-connected disabilities certainly cause interference to some extent with his employability, such interference is contemplated in the schedular ratings currently assigned to said disabilities, and the evidence of record does not demonstrate that his service-connected disabilities alone result in unemployability. While not discounting the significant effect that the service-connected disabilities have on the Veteran’s employability, the Board finds that such are adequately compensated at the currently-assigned levels. Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose, supra. Based on the above, the Board finds insufficient evidence to substantiate a reasonable possibility that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities during any period on appeal, and thus, referral for extraschedular consideration for the appeal period is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim is denied. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.