Citation Nr: 21025539 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-12 999 DATE: April 28, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for bilateral upper extremity (BUE) radiculopathy, claimed as numbness in the hands and arms, is granted. Entitlement to service connection for right lower extremity (RLE) radiculopathy, claimed as numbness in the right leg, is granted. REMANDED Entitlement to service connection for facial numbness is remanded. FINDINGS OF FACT 1. The Veteran’s cervical spine disability is etiologically related to active service. 2. The Veteran’s lumbar spine disability is etiologically related to active service. 3. The Veteran’s BUE radiculopathy is proximately due to his now service-connected cervical spine disability. 4. The Veteran’s RLE radiculopathy is proximately due to his now service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for BUE radiculopathy as secondary to a service-connected cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for RLE radiculopathy as secondary to a service-connected lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1969. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2017 decision, the Board denied the Veteran’s claims of entitlement to service connection for a cervical spine disability, lumbar spine disability, numbness of the face, numbness of the arms and hands, and numbness of the right leg. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In September 2018, the Court granted a Joint Motion for Remand (JMR) filed by representatives for both parties and remanded the claims to the Board for further proceedings consistent with the JMR. The case has returned to the Board for further appellate proceedings. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Cervical Spine 2. Lumbar Spine The Veteran seeks service connection for cervical spine and lumbar spine disabilities, maintaining that they are related to a helicopter crash during service. The record reflects current diagnoses of cervical spine and lumbar spine disabilities. See August 2020 Dr. J.T. medical opinion. Addressing the second element of service connection, the Veteran’s service records confirm that the Veteran was in a helicopter crash at Shell Army Heliport in February 1967. Therefore, the second element required to establish service connection is met. As such, the crux of this case centers on whether the Veteran’s cervical spine and lumbar spine disabilities are etiologically related to his service, to include the February 1967 helicopter crash. The Veteran submitted an August 2020 medical opinion from his chiropractor, Dr. J.T. Dr. J.T. opined that the Veteran’s current cervical and lumbar spine conditions are at least as likely as not a direct consequence of the helicopter crash in service. See August 2020 Dr. J.T. medical opinion. In support of his cervical spine claim, the Veteran’s orthopedic physician, Dr. J.S., opined that “his C5/6 disc degeneration and disc/osteophyte complex is as likely as not [sic] result of that helicopter crash on 2/24/1976.” See December 2019 Dr. J.S. medical opinion. Moreover, the Veteran’s VA primary care physician, Dr. M.K., has opined on at least two different occasions that the Veteran’s cervical spine disability is related to the 1976 helicopter crash. In a May 2019 treatment note Dr. M.K. stated, “It seems like his neck pain stems from his helicopter crash based on his description. It is as likely as not that his neck issues are related to the helicopter crash in 1967.” See May 2019 Dr. M.K. treatment note. Additionally, a prior October 2017 treatment note confirms the same. Specifically stating, “Chronic neck issues. It seems like this stemmed from his helicopter crash based on his description. It is as likely as not that his neck issues are related to the helicopter crash in 1967.” See October 2017 Dr. M.K. treatment note. Having carefully reviewed the record, the Board has determined that service connection for the Veteran’s claimed cervical spine and lumbar spine disabilities is warranted. In reaching this conclusion, the Board notes that multiple medical professionals have related the Veteran’s cervical and/or lumbar spine disabilities to his 1967 helicopter crash in service. Their opinions were based on physical examination of the Veteran, review of the claims file, and contained adequate supporting rationale. In consideration of the above, the Board has carefully considered the record, and finds that there is at least an approximate balance of evidence with respect to the question of whether the Veteran’s current neck and back disabilities are related to service. Therefore, having resolved doubt in favor of the Veteran, service connection for his cervical spine and lumbar spine disabilities is granted. 3. BUE Radiculopathy The Veteran contends he has pain and numbness in his hands and arms that is a result of a helicopter crash in service. He also asserts that it could be secondary to his neck injury sustained in the helicopter crash. See December 2014 Veteran statement. The record reflects that the Veteran has a diagnosis of cervical radiculopathy. See November 2018 VA treatment notes, see also August 2020 Dr. J.T. medical opinion. As a result of this decision, the Veteran is now service connected for a cervical spine disability. The August 2020 Dr. J.T. medical opinion provides the necessary link between his now service-connected cervical spine disability and his documented cervical radiculopathy. Specifically, Dr. J.T. noted that the Veteran has “chronic cervicalgia and brachial neuritis and paresthesia secondary to cervical foraminal encroachment complicated by a cervical subluxation and degenerative disc.” See August 2020 Dr. J.T. medical opinion. Within this diagnosis Dr. J.T. attributes the Veteran’s cervical radiculopathy as secondary to his now service-connected cervical spine disability. Thus, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current cervical radiculopathy is proximately due to his now service-connected cervical spine disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for BUE radiculopathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. RLE Radiculopathy The Veteran contends he has numbness in his right leg that is a result of a helicopter crash in service. See July 2012 Veteran statement. The record reflects that the Veteran has a diagnosis of lumbar nerve root radiculopathy. See August 2020 Dr. J.T. medical opinion. As a result of this decision, the Veteran is service connected for a lumbar spine disability. The August 2020 Dr. J.T. medical opinion provides the necessary link between his now service-connected lumbar spine disability and his RLE numbness and pain. Specifically, Dr. J.T. noted that the Veteran has “chronic lumbalgia with paresthesia associated lumbar nerve root radiculopathy secondary to a lumbar subluxation complex complicated by lumbar disc degenerative disease.” See August 2020 Dr. J.T. medical opinion. Within this diagnosis Dr. J.T. attributes the Veteran’s lumbar nerve root radiculopathy as secondary to his now service-connected lumbar spine disability. Thus, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current RLE radiculopathy is proximately due to his now service-connected lumbar spine disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for RLE radiculopathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Facial Numbness The Veteran contends that he has facial numbness that is a result of a helicopter crash in service. As a result of this decision, the Veteran is service connected for cervical spine and lumbar spine disabilities. Moreover, his BUE radiculopathy and RLE radiculopathy, which were initially claimed as numbness and pain, have also been found to be secondary to said disabilities. Given that the Veteran is now service-connected for neck and back disabilities, the Board finds that the “low” threshold of McLendon has been met and the Veteran should be afforded a VA medical examination to determine the nature and etiology of his facial numbness, to include as secondary to his neck and back disabilities. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his claimed facial numbness that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Then, schedule the Veteran for an examination to determine the nature and etiology of his facial numbness. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinions must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner is asked to respond to the following: (a.) Is it at least a likely as not that the Veteran’s facial numbness was incurred in or is otherwise related to active service, to include the 1967 helicopter crash? (b.) Is it at least as likely as not that the Veteran’s facial numbness was proximately caused or aggravated by his service-connected cervical spine disability? (c.) Is it at least as likely as not that the Veteran’s facial numbness was proximately caused or aggravated by his service-connected lumbar spine disability? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.