Citation Nr: 21025117
Decision Date: 04/27/21	Archive Date: 04/27/21

DOCKET NO. 14-34 862
DATE: April 27, 2021

ORDER

Entitlement to service connection for a left lower extremity disorder, to include as secondary to a service-connected disability, is denied.

Entitlement to service connection for hypertension, to include as secondary to a service-connected cervical spine disability, is granted.

Entitlement to service connection for a left shoulder disorder, to include as secondary to a service-connected cervical spine disability, is denied.

Entitlement to service connection for diabetes mellitus, type II, to include a secondary to a service-connected cervical spine disability, is denied.

Prior to January 25, 2021, entitlement to a 20 percent rating, but no higher, for a cervical spine disability is granted, subject to the regulations governing payment of monetary awards.

Effective January 25, 2021, entitlement to a 30 percent rating, but no higher, for a cervical spine disability is granted, subject to the regulations governing payment of monetary awards.

Entitlement to a separate 20 percent rating for right upper extremity radiculopathy associated with the cervical spine disability is granted, subject to the regulations governing payment of monetary awards.

Entitlement to a separate 20 percent rating for left upper extremity radiculopathy associated with the cervical spine disability is granted, subject to the regulations governing payment of monetary awards.

REMAND

Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability, is remanded.

FINDINGS OF FACT

1. The Veteran did not serve in Southwest Asia.

2. The Veteran does not have a left lower extremity disorder or left shoulder disorder that is related to service or secondary to a service-connected disability.

3. The Veteran’s diabetes mellitus, type II did not manifest during service or the first post-service year and is not caused or aggravated by his service-connected cervical spine disability.

4. The Veteran’s hypertension did not manifest during service or the first post-service year and is not caused by his service-connected cervical spine disability, but it is aggravated by it.

5. Prior to January 25, 2021, the Veteran’s cervical spine disability was manifested by no worse than limitation of forward flexion to 30 degrees and beginning on that date forward flexion was limited to 10 degrees; at no time was there unfavorable ankylosis of the cervical spine.

6. Throughout the appeal, the Veteran’s bilateral upper extremity radiculopathy was manifested by no worse than mild incomplete paralysis.

7. The combined rating for the cervical spine disability with bilateral upper extremity radiculopathy is greater than the single 40 percent rating previously in effect. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a left lower extremity disorder, to include as secondary to a service-connected disability, have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for entitlement to service connection for hypertension, as secondary to a service-connected cervical spine disability, have been met.  38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

3. The criteria for entitlement to service connection for a left shoulder disorder, to include as secondary to a service-connected cervical spine disability, have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.  

4. The criteria for entitlement to service connection for diabetes mellitus, type II, to include a secondary to a service-connected cervical spine disability, have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.  

5. Prior to January 25, 2021, the criteria for entitlement to a 20 percent rating, but no higher, for a cervical spine disability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5242. 

6. Effective January 25, 2021, the criteria for entitlement to a 30 percent rating, but no higher, for a cervical spine disability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5242.

7. The criteria for entitlement to a 20 percent rating for right upper extremity radiculopathy associated with the cervical spine disability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.21a, Diagnostic Code 8513.

8. The criteria for entitlement to a 20 percent rating for left upper extremity radiculopathy associated with the cervical spine disability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.21a, Diagnostic Code 8513.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1990 to March 1991 and he had an earlier period of active duty for training (ACDUTRA) in the National Guard from December 1985 to April 1986.

This appeal to the Board of Veterans’ Appeals (Board) is from January 2013 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In November 2017, the Veteran testified during a video conference hearing before the undersigned; a transcript of the hearing is of record.

In September 2018 and July 2020, the Board remanded these matters.

Service Connection

Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability.  See 38 U.S.C. §§ 1110, 1131; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).

Certain chronic diseases, including arthritis, hypertension, and diabetes mellitus, may be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

The term “active service” includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in line of duty.  38 U.S.C. §§ 101(24); 38 C.F.R. § 3.6(a).  National Guard and Reserve service generally includes periods of ACDUTRA and/or INACDUTRA.

ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c).  INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505.  38 U.S.C. § 101(23); 38 C.F.R. § 3.6(c). 

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). 

The Veteran’s service treatment records are incomplete and efforts to obtain all the records have been unsuccessful.  When service records are incomplete the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule.  See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, the case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the veteran.  See Russo v. Brown, 9 Vet. App. 46 (1996).  Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005).

Under the benefit-of-the-doubt rule embodied in 38 U.S.C. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran’s favor, but only an approximate balance of the positive and negative evidence.  In other words, the preponderance of the evidence must be against the claim for the benefit to be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994).

1. Entitlement to service connection for a left lower extremity disorder, to include as secondary to a service-connected disability, is denied.

The Veteran contends that he has a left lower extremity disability that is related to service.  During his November 2017 hearing, he testified that his problems began somewhere around late 1991 or early 1992.  He also believed his radiculopathy could be related to diabetes.  He was told that because of his weight gain and exposure to things during service his nerves were attacked, which is why he was diagnosed with fibromyalgia and neuropathy.  His testimony also included a statement that he served in the Persian Gulf during Desert Storm.  See November 2017 Hearing Transcript.  

Since the Veteran testified that he did not start reporting problems with his left lower extremity until late 1991, there is no heightened duty for the Board to explain its findings due to missing service treatment records as the testimony shows he did not report having any problems until many months after his period of active duty ended.

Consistent with his testimony, the available service treatment records contain no complaints, findings, or diagnosis associated with the left lower extremity.  See June 2019 STR – Medical.

Post-service treatment records show the Veteran received treatment in the early to mid-1990s, but these records do not show any left lower extremity complaints.  See May 1991 VA 10-10 Forms, September 1991 Medical Treatment Record – Government Facility, and September 2014 CAPRI records.  

In October 2012, he reported not seeing a physician since the mid-1990s and his current complaints included a burning pain in his left lower extremity.  In November 2012, he complained of having a shooting pain in his left leg the night before while walking and that it was still painful to walk.  Due to complaints of lower back and left leg pain, X-rays of the lumbar spine were done that month.  They were unremarkable and within normal limits for his age.  In April 2014, he had an EMG due to complaints of chronic low back pain that radiated to the left leg; the findings were normal.  There was no evidence of large-fiber neuropathy or lumbosacral radiculopathy.  See September 2014 CAPRI records.  

In May 2013, the Veteran reported having bilateral lower extremity tingling.  The assessment included diabetic peripheral neuropathy.  A June 2013 VA treatment record contains an assessment of lower extremity neuropathy and indicates that uncontrolled diabetes was a possible cause of the neuropathic pain.  See March 2014 CAPRI records.

Favorable opinions were submitted in support of the Veteran’s claims.  In February 2016, Dr. M. Freeman opined that it was very likely that the Veteran’s peripheral neuropathy was due to chemical exposure while he was in Desert Storm.  In March 2016, Dr. C. Coffee opined that the Veteran’s polyneuropathy was likely secondary to military service during Desert Storm.  In October 2017, Dr. A. Mankin offered an opinion that addressed more general symptoms.  She opined that the Veteran was likely to be having symptoms that included aches and pains that were related to his Desert Storm service.  She added that he was very healthy before he went.  See November 2017 Medical Treatment Record – Non-Government Facility.  

The private opinions noted above are not probative because they either rely on an inaccurate factual basis or did not include a rationale.  The Veteran’s service personnel records show he served on active duty from December 1990 to March 1991, which was during the Persian Gulf War; however, his service personnel records show he spent this time in Germany and not in Southwest Asia.  See June 2019 Military Personnel Record.  His DD Form 214 for this period of active duty also shows he did not receive any awards, decorations, badges, or citations that indicate he was in the Persian Gulf.  See Certificate of Release or Discharge.  As the evidence shows that the Veteran did not serve on active military duty in Southwest Asia, he is not deemed a Persian Gulf veteran and he is not afforded any presumptions associated with such service.  See 38 C.F.R. § 3.317.

The Veteran’s attorney also submitted a February 2021 examination report that was conducted by a private clinician.  The Veteran reported he served as a combat medic from 1986 to1997 and that he had an onset of low back pain in 1991 while loading patients.  The clinician opined that it is more likely than not that the Veteran’s back and lower extremity symptoms were initially caused by his military service while lifting patients during deployment.  See February 2021 VA Examination.

The only other nexus evidence of record is from an August 2019 VA Examination.  The Veteran describes pain that radiates from his low back down the posterior left lower extremity.  The diagnosis was left lower extremity radiculopathy secondary to lumbar spinal degenerative disc disease and stenosis.  The clinician addressed secondary service connection and stated that the cervical spine and lumbar spine are two separate spine conditions and thus the cervical spine injury did not cause the left lower extremity lumbar radiculopathy; a condition of the lumbar spine caused the left lower extremity lumbar radiculopathy.  

The clinician stated there is no evidence of injury to the lumbar spine on active duty and no evidence of lower back pain in the first year following active service.  The first documentation regarding low back pain was in 2013 which is greater than 20 years after his active duty service.  If the lumbar spine condition including lumbar radiculopathy was due to wear and tear as a medic one would have expected to have seen complaints while on active duty or in the years soon following active duty which is not supported in the available records.  Therefore, the examiner opined that the Veteran’s left lower radiculopathy is less likely than not related to service, to include reports of wear and tear as a medic.  See August 2019 C&P Exam. 

Of the two remaining opinions, the Board finds the VA opinion to be more probative.

Although the private clinician linked the Veteran’s current back and left lower extremity disorders to his duties during service, there was no explanation involved other than it was caused by lifting patients during deployment.  The clinician also identified it as lumbar radiculopathy, which links it to a lumbar disorder, but does not offer a nexus between service and a lumbar disorder.  The clinician also did not appear to consider other possible sources such as evidence that suggests a link of the lower extremity neuropathy to diabetes mellitus.

In contrast, the VA clinician gave a thorough explanation for why the Veteran’s current low back disorder is less likely related to his duties during service to include a discussion of why the Veteran would have likely sought treatment for symptoms prior to 2013 if he had been experiencing chronic pain since 1991.  The Board finds this opinion to be more probative. 

The private opinion was based on the Veteran’s reported history of symptoms since service; however, the Board finds that this history is not credible.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d, 78 F.3d 604 (Fed Cir. 1996).  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

As the VA examiner noted, there are no complaints or findings until many years after service.  The Board recognizes that the absence of evidence does not automatically constitute substantive negative evidence.  Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011).  In order to find that silence in the record contradicts lay testimony, the Board “must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.”  Fountain v. McDonald, 27 Vet. App. 258, 272 (2015).  It must be considered whether there is evidence as to the severity of symptoms that would have made it “reasonable to expect” that at that time he would have reported symptoms during treatment.  See Fountain v. McDonald, 27 Vet. App. 258, 272-74 (2015).  If so, the absence of complaints during treatment may provide affirmative evidence of absence.  AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013).

The Veteran testified that he did not have left leg symptoms until after service.  Since it could be secondary to a low back disorder, the Board must consider this basis as well.  The Veteran has not stated whether or not he sought treatment during service for his low back complaints or how severe his symptoms were and since complete service treatment records are not available it is unclear whether his complaints were ever documented in service.  Regardless, there are post-service treatment records immediately after service that show the Veteran reported having musculoskeletal complaints that did not include the low back.  Therefore, if the Veteran did have symptoms any time from 1991 to 1995 then they were not significant enough to report since nothing is noted in his records.  Furthermore, when the Veteran reestablished care with VA in October 2012 he reported not getting any treatment since the mid-1990s.  This suggests that, if present, his symptoms were not severe enough to seek treatment from 1995 to 2012.  

However, when he reported a medical history in 2012 it involved ailments other than his back.  He first reported having left lower extremity symptoms in October 2012 and low back symptoms in November 2012.  The Board finds even if the symptoms were mild it is unlikely that the Veteran would wait 21 years to report having chronic pain.  This conclusion is also consistent with the VA examiner’s opinion.  For these reasons, the Board finds that the Veteran’s report of ongoing symptoms since service is not credible.  Thus, service connection for the left lower extremity as secondary to the low back disorder is not a viable theory since service connection is not established for a low back disorder and the more probative nexus is against the claim.  Furthermore, November 2012 X-rays of the lumbosacral spine were within normal limits for his age and a 2014 EMG found no evidence of lumbosacral radiculopathy.  The fact that the earliest documented complaints were not made until 21 years after service is a factor that weighs against service connection.  See Maxson v. West, 12 Vet. App. 452 (1999), affd, 230 F.3d 1330 (Fed. Cir. 2000).  

Secondary service connection based on peripheral neuropathy due to diabetes mellitus was also raised by the record and is not a viable theory for the same reason.  Although there is evidence that suggests the Veteran’s peripheral neuropathy in the left lower extremity is related to diabetes mellitus, type II, service connection for diabetes mellitus, as discussed below, is not related to the Veteran’s service, so any claim on a secondary basis lacks legal merit.

In short, the evidence tends to show that the Veteran’s left lower extremity neuropathy is not directly related to service or a service-connected disability.  The evidence indicates the claimed disability may be related to radiculopathy associated with a lumbar disorder and/or peripheral neuropathy associated with diabetes mellitus, type II, neither of which is a service-connected disability.  There is no probative evidence linking it to service or his service-connected cervical spine disability.  As a preponderance of the evidence is against service connection, the claim must be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

2. Entitlement to service connection for hypertension, to include as secondary to a service-connected cervical spine disability, is granted.

The Veteran contends his hypertension is related to service or a service-connected disability.  In November 2017, he testified that his hypertension began in 1991 and that weight gain secondary to his chronic pain problem is also an issue that caused his blood pressure to rise.  See November 2017 Hearing Transcript.

Based on the record, the Board finds that his hypertension was not caused by service, presumptively related to service, or caused by his cervical spine disability.  However, since it is at least as likely as not aggravated by pain associated with his cervical spine disability, service connection is granted on the basis of aggravation.  

A periodic service examination in January 1989 shows that the Veteran’s blood pressure reading was 124/72.  Although it could also be read as 124/92, there was no notation that this blood pressure reading was elevated or that hypertension was diagnosed.  See June 2019 STR – Medical.  

Post-service treatment records shortly after active duty also do not contain any evidence of hypertension.  In April 1991, his blood pressure readings were 132/84 and 132/80.  See May 1991 VA 10-10 Forms.  

There is no post-service evidence of hypertension until the Veteran returned to VA for treatment in October 2012 and reported he had been told he had hypertension in the past and was unaware of what medication he had been prescribed.  His blood pressure readings at the time of this visit were 208/133 and 138/102.  The assessment included uncontrolled hypertension.  See September 2014 CAPRI records.  

Although his service treatment records from active duty are not available, the records within the first post-service year show his blood pressure readings were not consistent with hypertension and since the April 1991 treatment records also show he was not on any medication it is reasonable to conclude that his blood pressure readings were within a normal range without taking medication for hypertension.  Therefore, service connection for hypertension as a chronic disability on a presumptive basis or based on continuing symptomatology must be denied.  See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (2013).

The more probative evidence of record does not indicate the Veteran’s hypertension is related to service or caused by a service-connected disability.  

In March 2016, Dr. C. Coffee opined that the Veteran’s hypertension diagnosis was likely secondary to military service during Desert Storm.  See November 2017 Medical Treatment Record – Non-Government Facility.  This opinion has no probative value because it does not include a rationale and, as previously discussed, the Veteran did not serve in Southwest Asia.  The Veteran was in Germany during Desert Storm and no reason was given for why it would be caused by this service.

On August 2019 VA examination, the clinician noted that the available records found a January 1989 blood pressure reading was either 124/72 or 124/92 and that the two blood pressure readings in April 1991 were 132/84 and 132/80.  There are additional treatment records in March 1991, June 1994, and September 1994 but there are no documented blood pressure readings.  After a thorough review of the available records the examiner was unable to identify any other blood pressure readings until 2012.  In review of the October 2012 record, the Veteran reported that “[h]e has not seen a physician since the mid-1990s.  He was told that he had HTN in the past but is unsure what medication he was prescribed.”  In review of the available blood pressure readings from January 1989, however interpreted, this blood pressure reading is not noted to be during a period of active service.  The April 1991 blood pressure readings also are not during a period noted to be considered active duty.  Thus, in review there are no elevated blood pressure readings during a period of active service.  

The first evidence of elevated blood pressure is in 2012.  Though this note indicates that the Veteran subjectively reports that he had been previously told that he had hypertension and treated for the condition there is no objective evidence to corroborate this statement nor objective evidence to suggest that the hypertension occurred during active duty or soon after active duty.  The clinician stated that as a medical examiner, the opinion is based upon the factual objective evidence of record and in this case, there is no evidence of elevated blood pressure on active duty nor within the first few years following discharge from active duty.  Instead, the first evidence of hypertension is 21 years post active duty.  Therefore, there is no nexus between the hypertension documented in 2012 and active service.  See August 2019 C&P Exam.  

The VA examiner also addressed secondary service connection and noted that records indicate that the Veteran is presently service connected for “cervical spine injury with degenerative changes and radiation to right and left arm and fingers.”  What is known from peer reviewed medical journals is that pain can transiently elevate blood pressure, but pain does not cause hypertension.  The most recent peer reviewed medical journals are silent for an etiological relationship between degenerative joint disease of the cervical spine with radiation to the right and left arm/fingers and hypertension.  Also, it is known that hypertension is a distinct condition with clear and specific etiologies and diagnosis.  Hypertension has not been associated with the illnesses or exposures described in Veteran’s returning from the Gulf War in medical research published in peer-reviewed medical journals.  Therefore, hypertension is not likely related to a service connected condition.  See August 2019 C&P Exam.  

A supplemental opinion in November 2020 was that the Veteran’s cervical spine disability is less likely as not aggravated the Veteran’s hypertension; however, the clinician also stated that pain can transiently or briefly elevate one’s blood pressure due to somatic receptor response.  The claims folder reveals a history of obesity and family history of maternal and paternal hypertension.  The clinician quoted various sources.  

“Although the exact etiology of primary hypertension remains unclear, a number of risk factors are strongly and independently associated with its development, including [a]ge.”  “Advancing age is associated with increased blood pressure, particularly systolic blood pressure, and an increased incidence of hypertension.”  “Obesity and weight gain are major risk factors for hypertension and are also determinants of the rise in blood pressure that is commonly observed with aging.”  “Hypertension is about twice as common in subjects who have one or two hypertensive parents, and multiple epidemiologic studies suggest that genetic factors account for approximately 30 percent of the variation in blood pressure in various populations.”  

“Hypertension tends to be more common, be more severe, occur earlier in life, and be associated with greater target-organ damage in blacks.”  “Reduced adult nephron mass may predispose to hypertension, which may be related to genetic factors, intrauterine developmental disturbance (eg, hypoxia, drugs, nutritional deficiency), premature birth, and postnatal environment (eg, malnutrition, infections).”  “Excess sodium intake (eg, >3 g/day [sodium chloride]) increases the risk for hypertension, and sodium restriction lowers blood pressure in those with a high sodium intake.”  “Excess alcohol intake is associated with the development of hypertension.”  “Physical inactivity increases the risk for hypertension, and exercise is an effective means of lowering blood pressure.”  Thus, the clinician opined that there is no evidence of aggravation beyond natural progression of the hypertension by the service-connected cervical spine arthritis.  See November 2020 C&P Exam.

A February 2021 private opinion was that the Veteran’s hypertension is service connected secondary to spinal injury, with evidence by the medical documentation of a normal blood pressure upon enlistment and an elevated blood pressure after suffering cervical spine injury that remained high throughout the remainder of his service and continues to be elevated even with medication.  The Veteran provided medical documentation of service recorded blood pressure as high as 186/82 after a surgical procedure in 1995.  The Veteran reported that although he was noted to be hypertensive multiple times throughout service he was never treated with medication or diagnosed to get blood pressure under control.  The Veteran reported a normal blood pressure at 225 pounds with a medium build per service records and the Veteran was currently 225 pounds and was hypertensive upon assessment.  The Veteran also reported several medical records were lost.  See February 2021 VA Examination.  

Regarding direct service connection, the VA examiner’s opinion is the most probative because it is adequately supported by a rationale and it is consistent with the record.  The private opinion has no probative value because it is not supported by any evidence.  Even though there are no available service treatment records from the Veteran’s active duty, the clinician states that the Veteran’s blood pressure was normal when he entered service, became elevated after he injured his cervical spine in service, and that it remained high throughout his service.  Without any service treatment records to review, the statement overreaches what the evidence actually shows concerning blood pressure readings in service.  If the opinion is based on the Veteran’s reported history then it is also not probative because the Board does not find it credible that his blood pressure would remain high throughout his service and not be diagnosed with hypertension and that no steps would be taken to try to lower his blood pressure.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d, 78 F.3d 604 (Fed Cir. 1996).

While the Veteran served during a period of war, he did not service in combat.  If a veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence or aggravation, if the evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d).  Since the Veteran did not serve in combat any history he provided regarding elevated blood pressure readings throughout service is not automatically accepted proof of the in-service incurrence.  Although he is competent to report what he experienced, the Board does not find for the reasons stated, that he would not be treated for blood pressure that was consistently high.  Furthermore, the Veteran’s blood pressure readings only a month after separation from service were within normal limits without medication appears to contradict the idea that his blood pressure was consistently high.

Regarding the Veteran’s weight gain as a possible cause for his hypertension, obesity itself it is not a disability for VA purposes.  See Marcelino v. Shulkin, 29 Vet. App. 155 (2018).  However, service connection under 38 C.F.R. § 3.310 may be warranted if obesity is an intermediate step between a service-connected disability and non-service-connected disability.  See VAOPGCPREC 1-2017. 

For obesity to be an intermediate step, the evidence would need to reflect that (1) a service-connected disability or disabilities caused the veteran to become obese or aggravated the veteran’s obesity, (2) the obesity or aggravation of obesity resulting from service-connected disability or disabilities was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the obesity caused by the veteran’s service-connected disability or disabilities or the obesity aggravated by the service-connected disability or disabilities.  See Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020).

The evidence of record indicates that the Veteran’s weight gain was not caused or aggravated by his cervical spine disability.  

The Veteran’s service personnel records show that he struggled with his weight.  In October 1987, he was put into a weight control program that he completed in September 1988.  A July 1997 record shows that the Veteran was scheduled several times for a fitness for duty physical and never attended.  He was several pounds overweight and could not pass a PT test.  They believed he refused to go to his physicals due to his excessive body weight.  See September 2018 and June 2019 Military Personnel Records.

A January 1989 periodic examination prior to his active duty and after the weight control program shows that the Veteran was 225 pounds and that this was considered overweight for his height.  See June 2019 STR – Medical.  

A March 1991 treatment record shows he reported having his neck injury just 5 days earlier.  Although there is no record of his weight at that time an April 1991 treatment record, only a month later shows his weigh was 240 pounds.  His blood pressure at the time was132/80.  See May 1991 VA 10-10 Forms.  

These records indicate the Veteran was already overweight when he injured his neck and that his blood pressure was normal.  The evidence does not show when he was diagnosed with hypertension; however, the earliest post-service record that contains a diagnosis of hypertension was in October 2012 and his weight was recorded as 247 pounds.  See September 2014 CAPRI records.  There is also an October 2012 VA examination that recorded his weight as 240 pounds.  See October 2012 VA Examination.  As the Veteran gained, at most, seven pounds from shortly after his cervical spine injury during active duty to when he was shown to have hypertension 21 years later, the record does not support a finding that his hypertension was due to weight gain caused by his disability.  

Post-service treatment records also show the cervical spine disability did not make him completely inactive since he reported in April 1991 that while still on active duty, in March 1991, he was loading gear onto palates.  See May 1991 VA 10-10 Forms.  VA treatment records in October and November 2014 show that he walked his dog for exercise.  In November 2016, he was trying to increase his exercise level.  See June 2019 CAPRI records.  

It is also noteworthy that the private clinician reported in February 2021 that the Veteran’s weight was back down to 225 pounds.  That he was able to lose so much weight with his service-connected disability supports a finding that the disability was not the cause of his weight gain.

For these reasons, the Board finds that obesity due to a service-connected disability is not an intermediary factor that caused or aggravated the Veteran’s hypertension.    

Where the evidence is more favorable to the Veteran’s claim is regarding whether the cervical spine and radicular pain aggravated the Veteran’s hypertension.  The August 2019 VA examiner stated that peer reviewed medical journals state that pain can transiently elevate blood pressure.  The November 2020 VA clinician opined that the cervical spine disability did not aggravate the Veteran’s hypertension, but she also stated that pain could transiently elevate blood pressure.  

Since the Veteran’s service-connected disability is manifested by pain and both clinicians state pain can elevate blood pressure, they appear to support the contention that the Veteran’s pain aggravates his hypertension.  Thus, resolving reasonable doubt in his favor, service connection for hypertension on the basis of aggravation is granted.

3. Entitlement to service connection for a left shoulder disorder, to include as secondary to a service-connected cervical spine disability, is denied.

The Veteran attributes his left shoulder disorder to activities in service.  In November 2017, he testified that he was a combat medic, which involved loading patients and unloading patients and lifting cots, and that he had wear and tear injuries as a result.  He indicated that he did not go to sick call because he was a medic and his commanding officer was a doctor that he took care of him.  See November 2017 Hearing Transcript.

Since the Veteran testified that he did not seek any formal treatment, his service treatment records would not likely contain any relevant information concerning his claimed left shoulder disorder.

Since service connection is established for left upper extremity radiculopathy associated with the cervical spine disability, the Board will not consider any symptoms associated with his radiculopathy.

The January 1989 periodic service medical examination contains no complaints or findings of a left shoulder disorder.  See September 2018 STR – Medical.

A March 1991 treatment record just days after the Veteran completed his active duty shows that he had full range of left shoulder motion.  See September 1991 Medical Treatment Record – Government Facility.

On September 1994 VA examination, the Veteran reported injuries to the cervical spine and right shoulder and reported that his left upper extremity was spared.  See September 1994 VA Examination. 

A July 1995 X-ray report does not include a clinical history or indicate which shoulder was involved but contains findings of status post rotator cuff surgery at the acromioclavicular articulation.  In October 2012, he reported having pain in multiple locations including the shoulder that began in the 1990s, but he did not identify which shoulder.  A May 2013 records shows he had a history of left shoulder surgery in 1996.  See September 2014 CAPRI records.  

On August 2019 VA examination, the clinician diagnosed degenerative arthritis of the left shoulder.  The Veteran reported that he was seen in 1990 at the Oklahoma City VA and stated that the Oklahoma City VA did surgery on his left shoulder in 1990.  He also stated that the “VA lost my records.”  The Veteran reported having had had two left shoulder surgeries and that his current left shoulder symptoms were aching, throbbing, and stabbing pain that radiated down his arm.  The pain was constant and worsened with movement especially above the head or if he reached out.  The examiner noted that there was no evidence in the available records of left shoulder surgery conducted during service.  There are no complaints regarding the left shoulder in the available 1991 records just after military discharge.  

In 1994 during the compensation and pension examination the provider documented “[h]e states that his left upper extremity is spared.”  The first documentation regarding the left shoulder or left shoulder pain was in December 2013 when the Veteran first claimed a “left shoulder condition” on Form 21-526b.  Thus, given the objective medical evidence of record the examiner opined that a left shoulder condition is less likely than not incurred in or caused by a “left shoulder surgery” during service.  

Regarding the Veteran’s assertion of wear and tear, the examiner reviewed the records and found no evidence of a left shoulder injury while on active duty.  Following active service there is mention of neck and right shoulder/arm symptomatology but no evidence of left shoulder symptoms or objective findings.  The examiner again noted the comment on the 1994 VA examination that the Veteran stated that his left upper extremity is spared and that his first report of a left shoulder condition was in December 2013.  If the left shoulder condition was caused by or related to his reports of wear and tear as a medic one would have expected to have seen left shoulder complaints during or soon after active service, but instead the records show a greater than 20 year delay after active duty.  Thus, the examiner opined that the left shoulder disorder is less likely than not related to service, including his reports of wear and tear as a medic.  

Current peer reviewed medical literature does not support degenerative joint disease of the cervical spine causing degenerative joint disease of the left shoulder as these are two anatomically separate conditions.  Therefore, the left shoulder disorder is less likely than not caused by the cervical spine disability.  In review of peer reviewed medical literature there is no evidence to suggest that degenerative joint disease of the cervical spine would aggravate degenerative joint disease of the left shoulder.  Therefore, the examiner opines that the left shoulder disorder is less likely than not worsened beyond normal progression (aggravated) by the Veteran’s cervical spine disability.  See August 2019 C&P Exam.

A supplemental VA opinion in November 2020 was consistent with the prior unfavorable opinion.  The clinician stated that conditions of left shoulder disorder and cervical spine injury with degenerative changes and radiation to right and left arm and fingers are not medically related.  The left shoulder disorder is a separate entity entirely from the cervical spine injury with degenerative changes and radiation to right and left arm and fingers and unrelated to it.  The claims folder reveals a history of left shoulder degenerative joint disease.  No medical literature supports a neck arthritis causing a left shoulder arthritis.  See November 2020 C&P Exam.

A February 2021 private opinion shows the Veteran reported having an onset of symptoms in 1991 while loading patients, shortly after returning from deployment.  The clinician opined that it was more likely than not that the left shoulder pain and subsequent surgery was caused by his service in the military while lifting and loading patients while on deployment.  See February 2021 VA Examination.  

The Board finds that the Veteran’s statements that his left shoulder problems began during service are not credible.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  

While he is competent to report his symptoms, these reports are inconsistent with what he was quoted as saying in 1994, which is that his left shoulder had been spared.  The Board finds that information provided to a healthcare provider for treatment or diagnostic purposes is reliable as the declarant is motivated to provide accurate information.  Furthermore, since the 1994 statement was made only a few years after service, the Board finds it is more reliable than a contradictory statement made many years later.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994).

Since the private opinion relied on the Veteran’s reported history, the opinion has no probative value.  The Court explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), that reliance on a Veteran’s statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.  

In contrast, the VA opinions for direct and secondary service connection are adequately explained and consistent with the record.  There is some indication that the Veteran may have reported to the VA examiner that he had left shoulder surgery during service, the statement is not credible in light of the type of work he reported doing during his three month deployment.  Since the examiner did not rely on this history and offered an unfavorable opinion without consideration of the 1990 surgery, the opinion is still probative.  

As there is no evidence of a left shoulder disorder until many years after service and the more probative evidence indicates it is not related to service or a service-connected disability, the preponderance of the evidence is against the claim for service connection.

4. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to a service-connected cervical spine disability, is denied.

The Veteran contends that his diabetes mellitus is related to service or his service-connected disability.  

In November 2017, he testified that when he returned home after his active duty he could not do anything due to his cervical spine disability and that as a result he gained a lot of weight.  He added that doctors told him his weight gain was due to his pain.  He stated that civilian doctors said it was due to the exposures he had in the Gulf War.  See November 2017 Hearing Transcript.

The Veteran has not made any assertion to the effect that his diabetes mellitus began during his service and there are no service treatment records from his period of active duty.  However, it is unlikely that he had diabetes mellitus during service or in the in the first post-service year since the disorder was not diagnosed until October 2012.  See March 2014 CAPRI records.  

In February 2016, Dr. M. Freeman opined that it is very likely that the Veteran’s diabetes mellitus is due to chemical exposure while in Desert Storm.  In March 2016, Dr. C. Coffee opined that the Veteran’s diabetes mellitus was likely secondary to service during Desert Storm.  See November 2017 Correspondence.

Since the Veteran’s personnel records show he did not have service in Southwest Asia during the Persian Gulf War, presumptions based on such service are not applicable and all opinions based on this alleged service are not probative.  The private clinicians provided no other basis for linking the Veteran’s diabetes mellitus to service, so their opinions have no probative value.  See Coburn, supra.

On August 2019 VA examination, the clinician opined that based on the examination and review of the claims file that it is less likely than not that diabetes is related to a specific exposure event experienced by the Veteran during service in Southwest Asia.  Their rationale is that diabetes is a distinct condition with clear and specific etiologies and diagnosis.  This condition has not been associated with the illnesses or exposures described in Veteran’s returning from the Gulf War in medical research published in peer-reviewed medical journals.  It is known from peer reviewed medical journals that cervical spine injury with degenerative changes and radiation to right and left arm and fingers is not etiologically related to the development of type II diabetes as this is a physiological impossibility.  See August 2019 C&P Exam.

In November 2020, another VA clinician offered opinions.  The first is that the Veteran’s disorder was less likely than not incurred in or caused by service.  The clinician noted that the claims folder reveals a diagnosis of diabetes mellitus in 2012, many years post service and unrelated to service in Southwest Asia.  Diabetes is a disease of clear and specific etiology.  She relied, in part, on information from the Mayo Clinic, that “in type 2 diabetes, your cells become resistant to the action of insulin, and your pancreas is unable to make enough insulin to overcome this resistance.  Instead of moving into your cells where it is needed for energy, sugar builds up in your bloodstream.  Exactly why this happens is uncertain, although it is believed that genetic and environmental factors play a role in the development of type 2 diabetes too.  Being overweight is strongly linked to the development of type 2 diabetes, but not everyone with type 2 is overweight.”  

Risk factors include weight, inactivity, and family history.  The claims folder revealed a history of obesity and family history of diabetes mellitus.  The clinician also opined that diabetes mellitus was less likely due to or result of the Veteran’s service-connected disability.  The conditions of diabetes and cervical spine injury with degenerative changes and radiation to right and left arm and fingers are not medically related.  The diabetes is a separate entity entirely from the cervical spine injury with degenerative changes and radiation to right and left arm and fingers and unrelated to it.  A thorough review of medical literature failed to demonstrate a causal relationship.  Referring to the Mayo Clinic, she noted “[i]n type 2 diabetes, your cells become resistant to the action of insulin, and your pancreas is unable to make enough insulin to overcome this resistance.  Instead of moving into your cells where it is needed for energy, sugar builds up in your bloodstream.”  Arthritis of the cervical spine does not cause diabetes.  She also opined that it is less likely as not that the diabetes is due to diabetes during service because the Veteran was diagnosed with diabetes in 2012 per review of claims folder and his active duty dates were from December 1990 to March 1991.  See November 2020 C&P Exam.

As previously discussed, the Veteran does not have confirmed service in Southwest Asia, so any opinion that relied on this inaccurate fact has no probative value.  The clinician did, however, offer another unfavorable opinion based on service in general that is probative.  Although the clinician relied on the absence of evidence, it is completely appropriate to do so since the Veteran has not alleged having a history of diabetes mellitus dating back to service, post-service records from 1991 to 1995 are silent for any complaints or findings associated with diabetes mellitus, and he did not seek treatment from 1995 to 2012.  

The theory of obesity as an intermediary factor that links diabetes mellitus to the cervical spine disability on a secondary basis is without merit because as previously discussed the Veteran’s weight gain is not related to his cervical spine disability.  Service records prior to his neck injury, including a January 1989 periodic examination that states he was overweight for his height at 225 pounds, show that he had already been struggling with weight issues prior to the neck injury in January 1991.  See September 2018 Military Personnel Record and September 2018 Medical Treatment Record – Government Facility.  He was not inactive after the accident because in April 1991 he reported that just prior to completing active duty he was loading gear onto palates.  See May 1991 VA 10-10 Forms.  Furthermore, VA treatment records in 2014 and 2016 show his cervical spine disability did not prevent him from exercising.  The record also shows that in January 2021 he was back to the weight he had in 1989.  See February 2021 VA Examination.  This shows that his disability did not prevent him from being active and that if his service-connected disability did not keep him from losing weight then it likely did not cause his weight gain.

Since the Veteran’s diabetes mellitus is not shown to have started in service or the first post-service year, is not related to service or a service-connected disability, a preponderance of the evidence is against service connection.  

Increased Rating

A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule).  See generally 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § 4.27. 

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Higher evaluations may be assigned for separate periods based on the facts found during the appeal period.  Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  This practice is known as staged ratings.  Id. 

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995).  As such, in evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time.  See DeLuca, 8 Vet. App. at 206. 

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

5-8.  Entitlement to a rating in excess of 40 percent for a cervical spine disability with radiculopathy.

Service connection for a cervical spine disability with radiculopathy was established in a September 1992 rating decision.  The current 40 percent rating has been in effect since August 16, 1994, so the rating is protected under 38 C.F.R. § 3.951(b).  

The disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5293.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  Here, the additional diagnostic code 5293 for intervertebral disc syndrome (IVDS).  

Under this code, a 40 percent rating was assigned for severe; recurring attacks, with intermittent relief.  See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1994).  The Board notes that symptoms under this code contemplate both orthopedic and neurological findings.

The claim for increase was received in July 2012.  The rating criteria in effect at that time provides that an intervertebral disc syndrome (preoperatively or postoperatively) is rated under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 6.

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating when forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees.  A 20 percent rating is assignable for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 30 percent rating is assignable for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 40 percent rating is assignable for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242.

Note (1): VA evaluates any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  Id. 

Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 340 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id. 

The rating schedule further provides that an intervertebral disc syndrome (preoperatively or postoperatively) is rated under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 6.

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243.

Portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021.  Fed. Reg. 76453 (November 30, 2020).  However, the General Rating Formula for Diseases and Injuries of the Spine was not changed.  The criteria for the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes was also not changed; however, the application of the code changed to the extent that Diagnostic Code 5243 for Intervertebral disc syndrome is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root.  As such, the changes do not impact the general rating formula, so evaluation of the disability under the pre- and post-February 7, 2021 regulations is not required.

On October 2012 VA examination, the Veteran reported his symptoms had worsened.  X-rays of the cervical spine were normal.  He was right hand dominant.  The Veteran denied having flare-ups and range of motion tests showed forward flexion, extension, and bilateral lateral flexion were to 30 degrees, and bilateral rotation was to 40 degrees.  Pain was at the end points and there was no evidence of ankylosis.  There was no additional limitation with repetitive use testing.  Functional loss and/or impairment was due to less movement than normal and pain on movement.  There was no guarding or muscle spasms of the cervical spine and muscle strength, and right reflexes were normal.  The Veteran had decreased sensation in both hands and fingers and absent reflexes in the triceps.  Radiculopathy was present and manifested by mild intermittent pain in the right upper extremity and mild numbness in both upper extremities.  Radiculopathy affected the upper radicular group and was mild in severity, bilaterally.  There were no other signs or symptoms of radiculopathy.  The Veteran had IVDS, but he had no incapacitating episodes in the past 12 months.  See October 2012 VA Examination.

The October 2012 VA examination of the peripheral nerves indicates the Veteran had severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness in both upper extremities.  Muscle strength was normal except for bilateral grip, which was 4/5.  Reflexes were normal except for absent triceps on the left and sensation was normal except for the hands and fingers, which were decreased.  The bilateral radiculopathy was manifested by mild incomplete paralysis.  The clinician associated both upper extremity symptoms to the Veteran’s service-connected cervical spine disability.  See November 2012 C&P Exam.

In May 2013, the Veteran reported having progressive numbness and tingling in both upper extremities and decreased grip strength in both hands.  Bilateral upper extremity strength was 4+/5, reflexes were normal, and sensation was intact.  In June 2013, the Veteran reported his bilateral upper extremity symptoms had worsened and that they were no longer intermittent.  He complained of pain in his neck and down his shoulders and arms.  There was also tingling and numbness and his daily pain averaged 9/10 and worsened with any movement or activity.  The clinician reported full cervical spine flexion but with pain and limited flexion with pain, and painful lateral bending and twisting.  The upper extremities had a weakened grip of 4/5.  September 2013 records show an EMG revealed left chronic C5-6 radiculopathy, bilateral CTS, and ulnar neuropathy.  An MRI showed mild degenerative joint disease of C6/7.  The Veteran reported having tingling and numbness in both hands and difficulty with fine motor tasks with hands such as tying his shoes.  The examination showed he had limited range of neck motion with pain on extension and was worse with flexion; lateral bending was slightly limited.  He had a weakened grip at 4/5 in both hands, finger adduction and abduction, and wrist flexion/extension.  Sensation was decreased to light touch in both upper extremities, reflexes in the left upper extremity were ¼, and reflexes in the right upper extremity were 2/4.  See March 2014 CAPRI records.

A February 2017 note from the Veteran’s physician states he has physical restrictions and that he had cervical spine stenosis with intermittent flare-ups.  See November 2017 Correspondence.

A July 2017 record shows the Veteran reported missing two days that month due to his cervical spine disability.  See June 2019 CAPRI records.  

In November 2017, he testified that over the years it had gotten more difficult to hold things and tie his shoes.  Regarding incapacitating episodes, he stated that he missed approximately 12 weeks over the past year due to his neck disability.  He had advanced sick and annual leave and a note from his VA doctor that stated due to his disability he could have episodes of pain.  See November 2017 Hearing Transcript.

A January 2018 note from a VA physician states that the Veteran has degenerative disc disease of the cervical and that he likely would experience intermittent flare-ups that would require him to miss work and may need bed rest at times.  See February 2018 Third Party Correspondence.

In February 2019, the Veteran reported that he had a desk job and missed a lot of work due, in part, to chronic neck pain.  

In June 2019, the Veteran reported he had been missing a lot of work and needed a note if he missed more than three days of work.  He was having neck and back pain with all movement.  In February and March 2020, the Veteran continued to report neck pain and he denied having any upper extremity weakness.  See January 2021 CAPRI records.  

On August 2019 VA examination, the Veteran reported that his neck pain had worsened since his last VA examination and that he had constant pain.  The pain radiated everywhere, and he treated it by “knocking myself out with medication.”  Other than that, he dealt with the pain.  He denied having flare-ups.  He worked full time but could not take his pain medication until after work.  Range of motion testing showed forward flexion was from 0 to 30 degrees, extension and bilateral lateral rotation was from 0 to 20 degrees, and bilateral lateral rotation was from 0 to 50 degrees.  Pain was noted on the examination with all ranges of motion, but it did not cause any functional loss.  Repetitive use testing did not create any additional loss in the range of motion and there was no ankylosis.  There was no guarding or muscle spasms.  The Veteran did not have pain with weight bearing.  

Regarding radiculopathy, the Veteran had no right upper extremity symptoms and his left upper extremity symptoms involved constant mild pain, moderate intermediate pain and paresthesias and/or dysesthesias, and mild numbness.  Strength was normal bilaterally in the upper extremities, reflexes were 1+, and there was decreased sensation on the left side.  The clinician indicate the Veteran had no radiculopathy on the right and moderate radiculopathy on the left.  Radiculopathy involved the middle radicular nerve group.  The Veteran had IVDS, but he did not have episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.

Regarding functional impairment, the Veteran would be limited in those occupational functions that require pushing, pulling, lifting, or carrying heavy loads repetitively.  He would also be limited in those occupational functions that limit reaching, stretching bending and repetitive movements of the neck, overhead work occupations that would not allow for proper posture while sitting and he would be limited in sitting no more than 30 minutes without position change.  

The clinician commented that after examination of the Veteran, listening to his complete history and current subjective complaints, combined with a review of the available records, she had no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare up.  The Veteran reported constant consistent symptoms that were not consistent with a condition resulting in flare ups.  As there are no flare ups the examiner would be unable to proffer opinions with respect to additional limitation of motion during flare ups.  See August 2019 C&P Exam.

In April 2020, he reported having persistent numbness and pain in both hands and arms.  He specifically had left elbow pain and numbness in his fingers of both hands.  Objectively, he had mild muscle weakness bilaterally with good bulk.  Reflexes were hypoactive and there was decreased sensation in the left hand.  An August 2020 private treatment record shows the Veteran complained of tingling in his hands and having pain in both hands and arms.  A recent EMG of the right upper extremity showed chronic C7 radiculopathy and right median neuropathy and a July 2017 study for left upper extremity showed moderate median nerve compression at the wrist and ulnar neuropathy at elbow.  On examination, there was mild weakness in upper extremities with good muscle bulk and decreased sensation in only the left hand.  Reflexes were hypoactive but there was no evidence of pathological reflexes See October 2020 Medical Treatment Record – Non-Government Facility.

A private examination in January 2021 shows that the Veteran reported that during flare-ups he took medication and applied pain patches.  He also used a TENS and stopped aggravating activities.  He had increased pain with prolonged activity, sitting, driving (more than 30 minutes) and typing.  He missed six months of work due to his symptoms.  On examination, forward flexion was to 10 degrees, extension was to 15 degrees, bilateral lateral flexion was to 5 degrees, and bilateral lateral rotation was to 15 degrees.  The clinician indicated that there was an additional decrease in range of motion with repetition with forward flexion to 6 degrees, extension to 8 degrees, left lateral flexion to 4 degrees, right lateral flexion to 3 degrees, left lateral rotation to 10 degrees and right lateral rotation to 5 degrees.  Ankylosis was not present.  

The Veteran had an abnormal gait due to guarding and abnormal contour due to cervical muscle spasms.  Factors that contributed to the disability were less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with standing or sitting.  He reported neck pain at rest and prolonged sitting or standing.  There was decreased motor strength that ranged from 3/5 to 3+/5 on the right and 3/5 to 4-/5 on the left.  Reflexes were 1+ bilaterally, and he had decreased sensation in the right shoulder, forearm and hand/fingers and decreased sensation in the left forearm and hand/fingers.  The Veteran indicated his radiculopathy included severe constant and intermittent pain in right upper extremity, moderate dull pain and severe paresthesias and/or dysesthesias and numbness.  On the left there was severe intermittent pain, moderate dull pain, and severe paresthesias and/or dysesthesias and numbness.  The clinician indicated that radiculopathy in both upper extremities was severe and involved the upper, middle, and lower nerve root groups.  He had no incapacitating episodes, but he had difficulty with tolerating working on a computer at home due to head position, which would cause bilateral radicular symptoms.  See February 2021 VA Examination.

Based on the current criteria the orthopedic manifestations of the Veteran’s cervical spine disability would be assigned a 20 percent rating prior to January 25, 2021 and a 30 percent rating beginning on that date.  VA examinations in October 2012 and August 2019 show forward flexion was to 30 degrees and that he painful motion.  There was no additional loss of motion after three repetitions.  Although he denied flare-ups on both examinations, other records indicated that he could have intermittent flare ups.  The Board has considered the additional factors but finds that even with them there is no evidence that they produce additional limitation of motion that would result in a higher rating.

The private examination on January 25, 2021, however, contains findings consistent with a 30 percent rating based on limitation of motion.  As there is no evidence of unfavorable ankylosis of the entire cervical spine or restriction of motion equivalent to unfavorable ankylosis at any time, a rating greater than 30 percent is not assignable.

The Board has considered the Veteran’s disability under the criteria for IVDS, but he is not shown to have incapacitating episodes with prescribed bed rest that amounts to at least six weeks over a 12 month period.  In January 2021, he reported missing six months of work; however, he has also reported that his job requires a doctor’s note for missing three or more days in a row and there are no medical excuses of record to show he missed that much work.  Even if he missed a lot of work, the record does not show he had doctor prescribed bed rest to account for all the days he missed work.  The January 2018 doctor’s note only indicates that the disability could possibly require bed rest at times rather showing he actually required bed rest.

The neurological manifestations of the Veteran’s bilateral upper extremity radiculopathy associated with his cervical spine disability are rated under 38 C.F.R. § 4.124a, diseases of the peripheral nerves.  

Under Diagnostic Code 8510, which evaluates paralysis of the upper radicular group, mild incomplete paralysis of either extremity is rated 20 percent disabling, moderate incomplete paralysis of the affective nerve is rated 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity, severe incomplete paralysis is rated 50 percent disabling for the major extremity and 40 percent disabling for the minor extremity, and complete paralysis of the affected nerve is rated 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity.  38 C.F.R. § 4.124a.  

The rating criteria under Diagnostic Code 8511 (middle radicular group) and 8512 (lower radicular group) mirrors that for Diagnostic Code 8510 except complete paralysis under Diagnostic Code 8511 involves adduction, abduction, and rotation of the arm, flexion of elbow, and extension of the wrist lost or severely affected and complete paralysis under Diagnostic Code 8512 involves all intrinsic muscles of the hand, and some or all flexors of the wrist and fingers, paralyzed (substantial loss of use of hand).  Id.

Under Diagnostic Code 8513, incomplete paralysis of all radicular groups, mild incomplete paralysis of either extremity is rated 20 percent disabling, moderate incomplete paralysis of the affected nerves is rated 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity, severe incomplete paralysis is rated 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity, and complete paralysis of the affected nerve is rated 90 percent disabling for the major extremity and 80 percent disabling for the minor extremity.  Id.

In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id. 

Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6.  Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.

The evidence shows that symptoms in both upper extremities are attributable to the cervical spine disability and that the right upper extremity is the dominant/major one.  

The three examinations of record show the Veteran’s disability involve all radicular groups (upper, middle, and lower groups), so it is most appropriately rated under Diagnostic Code 8513.  There is some inconsistency between the October 2012 cervical spine and peripheral neuropathy VA examinations regarding the severity of his symptoms with the cervical spine examination showing he only reported mild intermittent symptoms on the right and none on the left and mild bilateral numbness.  In contrast, the peripheral nerve examination shows he reported constant severe pain and severe numbness bilaterally.  Given that he indicated in June 2013 his symptoms had been intermittent up to that point, the Board finds that this is more consistent with his prior cervical report rather than the peripheral neuropathy exam in how he depicted the frequency of his symptoms.  Furthermore, both examination reports agree that the overall severity of the bilateral radiculopathy was mild.

Despite his report of worsening symptoms in 2013, the records show symptoms and manifestations are very similar to what was found on the 2012 VA examinations with decreased sensation and a weakened grip of 4/5.  There does appear to be an increased deficit in upper extremity reflexes with a June 2013 record indicating it was bilateral.  Given the symptoms, their impact on function, and the examiner’s opinions as to the severity of the bilateral upper extremity radiculopathy, the evidence continues to support a 20 percent rating for mild radiculopathy for each upper extremity.  Although the August 2019 VA examiner found no evidence of radiculopathy in the right upper extremity and moderate radiculopathy in the left upper extremity, the Board finds the 20 percent rating is still appropriate for each extremity.  As later noted in an August 2020 treatment record, the Veteran still complained of tingling in both hands as well as pain in both arms and hands and numbness in the fingers in both hands.  Furthermore, there had been a recent EMG that confirmed the presence of chronic right upper extremity radiculopathy.

The private examination in January 2021 reflects a further decrease in bilateral strength and increase in pain.  While the clinician found the Veteran’s bilateral radiculopathy to be severe based on objective findings and subjective complaints, the Board finds there was not such a significant change in either manifestations or function to characterize the disability as severe and assign 70 percent for the right extremity and 60 percent for the left extremity.  There is a lack of evidence showing the objective and subjective evidence supporting this finding.  Prior to this, April and August 2020 records show he only had mild weakness in his upper extremities and decreased sensation in only the left hand.  Reflexes were hypoactive but there was no evidence of pathological reflexes.  His good muscle bulk suggests he still had good use of his arms.  Overall, the Board finds that the severity of his bilateral upper extremity radiculopathy has more nearly approximated the criteria for a 20 percent throughout the appeal.

Given the separate ratings for the orthopedic and neurological ratings for the cervical spine disability, it is more advantageous for the disability to be rating under the current criteria since the combined rating is greater than the 40 percent assigned under the former criteria. 

Thus, the Board finds that a preponderance of the evidence is supports a 20 percent rating prior to January 25, 2021 and 30 percent rating beginning on that date for the orthopedic manifestation of the disability.  Regarding the radiculopathy, a preponderance of the evidence supports a 20 percent rating for each upper extremity throughout the whole appeal.  When the bilateral factor for the upper extremities under 38 C.F.R. § 4.26 is applied and then the cervical and neurological symptoms are combined under 38 C.F.R. § 4.25, the final rating is greater than 40 percent; there is no violation of 38 C.F.R. § 3.951.

Reasons for Remand

9.  Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability, is remanded.

During his November 2017 hearing, the Veteran indicated that his erectile dysfunction was related to his Desert Storm service.  See November 2017 Hearing Transcript.

Post-service treatment records from March 1991 to July 1995 are silent for complaints or findings of erectile dysfunction.  An April 1991 record also shows he was not on any medication, including for erectile dysfunction.  See May 1991 VA 10-10 Forms and September 1991 Medical Treatment Record – Non-Government Facility.  

In October 2012, the Veteran reported that he had not seen a physician since the mid-1990s.  He provided a medical history that did not include erectile dysfunction.  A November 2012 treatment record shows the Veteran was given information on diabetes and sexual dysfunction.  See September 2014 CAPRI records.

A May 2013 treatment record contains an assessment of erectile dysfunction and shows he was prescribed a different medication than what he had been on previously.  See March 2014 CAPRI records.  

On March 2014 VA examination, the Veteran reported having failure of erection since his return from the Persian Gulf.  The examiner opined that it is less likely related to service and less likely than not due to or the result of his cervical spine injury with degenerative changes and radiation to right and left arm and fingers.  A review of current medical literature suggests that recognized causes of erectile dysfunction include diabetes, hypertension, hypotestoteronism, and advanced age.  There is no evidence in up to date medical literature that degenerative joint disease of the cervical spine may cause erectile dysfunction.  See March 2014 CAPRI records.

A supplemental opinion in November 2020 addresses secondary service connection and states the conditions of erectile dysfunction and medication for the cervical spine disability are not medically related.  The erectile dysfunction is a separate entity entirely from the medication for the cervical spine disability and unrelated to it.  A thorough review of medical literature failed to demonstrate a causal relationship.  The claims file noted a history of hydrocodone/acetaminophen for pain.  The more common side effect for hydrocodone was difficulty having a bowel movement and less common side effects were back pain, dry mouth, heartburn, muscle spasms, stomach pain or discomfort.  Erectile dysfunction was not associated with narcotics noted for the cervical spine disability.  The claims folder does not support a diagnosis of erectile dysfunction prior to service in 1990 and notes a history from 2012.  There is no evidence of permanent aggravation beyond natural progression.  See November 2020 C&P Exam.

A March 2016 opinion from Dr. C. Coffee states that the Veteran’s erectile dysfunction is likely secondary to service during Desert Storm.  See November 2017 Correspondence.

Since the Veteran’s personnel records show he did not have service in Southwest Asia during the Persian Gulf War, presumptions based on such service are not applicable and all opinions based on this alleged service are not probative.  Furthermore, the private clinician provided no other basis for linking the Veteran’s erectile dysfunction to service, so the opinion has no probative value.  See Coburn v. Nicholson, 19 Vet. App. 427 (2006).

As reflected above, the Board has granted service connection for hypertension.  As the March 2014 VA examiner indicated that a review of current medical literature suggests that recognized causes of erectile dysfunction include diabetes, hypertension, hypotestoteronism, and advanced age, a remand is necessary for an addendum opinion.  

The matter is remanded for the following:

1.  Obtain any outstanding VA or private records.

2.  Thereafter, obtain an opinion as to whether it is at least as likely as not that the Veteran’s erectile dysfunction has been caused or aggravated by his service-connected hypertension.  Please explain why or why not.

 

 

S. HENEKS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Bredehorst

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.