Citation Nr: 21029266 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-48 496 DATE: May 13, 2021 ORDER Presumptive service connection for cervical spine intervertebral disc syndrome (IVDS) and arthritis is granted. Service connection for right hand peripheral neuropathy involving the middle radicular nerve, based on secondary causation by the to be service-connected cervical IVDS, is granted. An increased disability rating higher than 10 percent for the service-connected right little finger digital neuropathy for the entire rating period is denied. FINDINGS OF FACT 1. Chronic cervical spine IVDS and arthritis symptoms were manifested during service, and continuous symptoms of cervical spine IVDS and arthritis were manifested since service. 2. The currently diagnosed right hand peripheral neuropathy involving the middle radicular nerve was caused by the to-be service-connected cervical spine disability. 3. For the entire rating period from September 1, 2015, the right little finger digital neuropathy was manifested by pain and loss of feeling with numbness and tingling with normal range of motion and strength. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for cervical spine IVDS and arthritis are met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for right hand peripheral neuropathy involving the middle radicular nerve, based on secondary causation by the now service-connected cervical spine disability, are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310. 3. The criteria for an increased disability rating higher than 10 percent for service-connected right little finger digital neuropathy are not met or approximated for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code (DC) 8516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1995 to September 1999. This matter is on appeal from a December 2015 rating decision on appeal. In March 2021, the Veteran testified at a virtual Board hearing before the undersigned. The Board finds that the duties to notify and assist in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnoses of cervical spine spondylosis (i.e., arthritis) and peripheral neuropathy of the right hand involving the middle radicular nerve (i.e., an organic disease of the nervous system), are listed as chronic diseases under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are applicable. See https://orthoinfo.aaos.org/en/diseases--conditions/cervical-spondylosis-arthritis-of-the-neck/ (defining cervical spondylosis as arthritis of the neck). Service connection may be established on a secondary basis for a disability which was either: (1) caused by, or (2) aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Compensation based on secondary aggravation will be awarded only for the degree of disability over and above the degree of disability prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for cervical spine IVDS and arthritis is granted. The Veteran contends that cervical spine IVDS and arthritis symptoms had their onset during service and have continued since service. In the alternative, he contends that the cervical spine disability was secondary to the service-connected right little finger digital neuropathy. After review of all the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether a neck injury and chronic cervical spine arthritis symptoms were manifested during active service. The service treatment records show no complaint, diagnosis, or treatment for the cervical spine, and the neck and spine were clinically evaluated as normal at the time of the June 1999 service separation examination; however, at the March 2021 Board hearing, the Veteran competently and credibly testified that he sustained a neck injury while performing his duties as a boatswain mate during naval service when a heavy rigging chain hit him on the neck, causing neck pain, even though he did not report to sick call for treatment because he did not want to appear weak. The evidence is in equipoise on the question of whether symptoms of cervical spine arthritis were continuously manifested since service. The earliest indication of cervical spine problems is shown in March 2015, approximately 17 years after service separation; however, when seeking medical treatment at that time, the Veteran stated that the pain in the right neck and shoulder area had been going on for years and was related to a history of carrying heavy equipment and a heavy work load. Also, the Veteran competently and credibly testified at the March 2021 Board hearing that he continued to experience neck pain, as well as neck tingling and stiffness, after service separation. At the November 2015 VA examination, the VA examiner opined that symptoms of the cervical spine disability had their onset during service from 1998 to 1999 due to carrying heavy objects and large equipment among other heavy duties and worsened thereafter. The November 2015 VA examiner has medical training and expertise, had accurate and sufficient data on which to base the medical opinion, and supported by the medical opinion on a sound rationale; therefore, the November 2015 VA medical opinion is of significant probative value. There is no competent medical opinion to the contrary of record. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the "chronic" in-service symptom criteria and "continuous" post-service symptom criteria for presumptive service connection under 38 C.F.R. § 3.303(b) for cervical spine arthritis have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Because the appeal for service connection of cervical spine arthritis is being granted based on presumptive service connection for a chronic disease due to chronic symptoms of cervical spine IVDS and arthritis during service and continuous symptoms of cervical spine IVDS and arthritis since service, analysis of other potential theories for service connection is not required. 2. Service connection for right hand peripheral neuropathy is granted. The Veteran contends that the right hand peripheral neuropathy was related to service. In the alternative, he asserts that right hand peripheral neuropathy was secondary to the service-connected right little finger peripheral neuropathy and/or the now service-connected cervical spine IVDS. After review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the now service-connected cervical spine IVDS caused the current right hand peripheral neuropathy involving the middle radicular nerve. After review of the record and interview and examination of the Veteran, the November 2015 VA examiner provided a favorable medical opinion on the question of whether the right hand peripheral neuropathy was secondary to the now service-connected cervical spine IVDS. The November 2015 VA examiner explained that the generalized numbness encompassing the entire right hand was attributable to cervical spine IVDS (and associated impairment associated with the right middle radicular nerve). The November 2015 VA examiner wrote that the numbness in the right little finger was due to both the digital neuropathy and cervical spine IVDS, and the remaining numbness in the right hand (excluding the little finger) was solely due to the cervical spine IVDS (with associated impairment of the right middle radicular nerve). In consideration of the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for right hand peripheral neuropathy involving the middle radicular nerve based on secondary causation by the now service-connected cervical spine IVDS under 38 C.F.R. § 3.310 are met. 2. An increased disability rating higher than 10 percent for right little finger neuropathy due to laceration for any period is denied. Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. For the entire increased rating period from September 1, 2015, the right little finger digital neuropathy is rated at 10 percent under the criteria found at 38 C.F.R. § 4.124a, DC 8516 for paralysis of the ulnar nerve. DCs 8516, 8616, and 8716 provide ratings for paralysis, neuritis, and neuralgia of the femoral nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 30, and 40 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the ulnar nerve. A disability rating of 60 percent is warranted for complete paralysis of the ulnar nerve, with the griffin claw deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the criteria for a disability rating higher than 10 percent under DC 8516 for the right little finger digital neuropathy were met or approximated for any period. For the entire rating period, the right little finger digital neuropathy was manifested by pain and loss of feeling with numbness and tingling with normal range of motion and strength. The November 2015 VA examiner reviewed the record, considered the examination findings, and specifically described the symptoms and level of impairment associated with the right little finger digital neuropathy as mild. Thus, the peripheral neuropathy symptoms for the right little finger disability are wholly sensory in nature, and 38 C.F.R. § 4.124a provides that, when neurological involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In consideration of the foregoing, as well as the assessment by the November 2015 VA examiner that the right finger digital l neuropathy was mild. In consideration thereof, the Board finds that the right little finger digital neuropathy more closely approximates neuritis, neuralgia, or incomplete paralysis of the ulnar nerve that is mild in degree rather than moderate neuritis, neuralgia, or incomplete paralysis of the ulnar nerve; therefore, the criteria for a rating higher than 10 percent for right little finger digital neuropathy under DC 8516, 8616, or 8716 have not been met for any period. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board has considered whether the Veteran or the record has raised the question of referral for an extraschedular rating adjudication under 38 C.F.R. § 3.321(b) for any period for the rating issue on appeal; however, review of the record reveals that a claim for extraschedular rating has not been raised by the Veteran or by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.