Citation Nr: 21030567 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 11-03 487 DATE: May 19, 2021 ORDER Service connection for a cervical spine disorder is granted. Service connection for right upper extremity cervical radiculopathy is granted. Service connection for left upper extremity cervical radiculopathy is granted. Service connection for right upper extremity peripheral neuropathy is denied. Service connection for left upper extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. The competent medical evidence now of record is in equipoise regarding a relationship between the Veteran's cervical spine disorder and his military service. 2. The Veteran has a current diagnosis of right upper extremity cervical radiculopathy which has been related to a service-connected disability. 3. The Veteran has a current diagnosis of left upper extremity cervical radiculopathy which has been related to a service-connected disability. 4. There is no evidence of right upper extremity peripheral neuropathy in service and no competent medical evidence linking the Veteran's current right upper extremity peripheral neuropathy with his period of service, to include a service-connected disability. 5. There is no evidence of left upper extremity peripheral neuropathy in service and no competent medical evidence linking the Veteran's current left upper extremity peripheral neuropathy with his period of service, to include a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for right upper extremity cervical radiculopathy secondary to a service-connected disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. 3. The criteria for service connection for left upper extremity cervical radiculopathy secondary to a service-connected disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. 4. The criteria for service connection for right upper extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for left upper extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1991 to July 1992, with active duty for training (ACDUTRA) from August 1974 to December 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. These matters were previously before the Board in February 2016, September 2018, and December 2020 when they were remanded for further development. Notably, the September 2018 Board remand noted that the claims file contained several Spanish-language documents that had not yet been translated by the RO and this was reiterated in the December 2020 Board remand. However, a review of the record shows that all pertinent documents had previously been translated in December 2015. As such, there is no pending language translation request. Service Connection Service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as arthritis and organic diseases of the nervous system are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) that a current disability exists and (2) that the current disability was 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The Veteran contends that service connection for a cervical spine disorder with secondary neurological disability of the upper extremities is warranted. Specifically, he contends that he began experiencing cervical spine symptoms during service which have continued to the present. In support of this assertion, he has submitted November 2009 and April 2010 statements from two fellow service members (V.O.C. and J.R.T.F.) corroborating the Veteran's in-service complaints regarding the cervical spine. Significantly, statements from the Veteran's fellow service members show that the Veteran requested medical treatment for his cervical spine during his service but, due to the essential nature of his mission, he was not given leave to seek medical care. These statements also show that the Veteran's mission was physically challenging in that the Veteran carried heavy equipment and other items. The Veteran's service personnel records show that the Veteran's military occupational specialty was general construction equipment operator. The Veteran's service treatment records (STRs) show some complaints regarding the lumbar spine but are negative for specific complaints regarding the cervical spine. Specifically, July 1983 and May 1990 reports of medical history show a history of "recurrent back pain" but a May 1990 examination shows a normal spine. Significantly, the Veteran is currently service connected for a lumbar spine disability with secondary radiculopathy of the bilateral lower extremities. Post-service treatment records show complaints regarding the cervical spine as early as June 1997. Specifically, a June 1997 private computed tomography (CT) scan of the cervical spine shows degenerated disc and calcified bulging annulus fibrosus associated with degenerative joint disease in uncovertebral joints of C4-C5 and C5-C6 with secondary narrowing of the neural foramina at this level. A subsequent March 2002 VA magnetic resonance imaging (MRI) scan of the cervical spine revealed suspected cervical muscle spasm, degenerative disc disease seen predominantly at C4-C5 level, as well as posterior disc herniation in midline location seen at C2-C3 and C3-C4. VA treatment records also show that the Veteran underwent cervical diskectomy in June 2003. The Veteran submitted an initial claim for service connection for a cervical spine disorder, radiculopathy, and peripheral neuropathy in October 2009. In connection with this claim, he was afforded a VA cervical spine examination in March 2017. Significantly, the March 2017 VA examiner diagnosed cervical spondylosis, noting an onset in 2001, and also diagnosed cervical disc herniation status post laminectomy and fusion, noting an onset in 2003. The examiner then opined that the Veteran did not suffer from a cervical spine disability as a result of his service because there was no evidence of any traumas or treatments for any cervical or lumbar conditions during service or within a year of service. As the March 2017 medical opinion relied solely on the lack of in-service cervical spine treatment and did not consider the Veteran's in-service history of "recurrent back pain," the Veteran was afforded a second VA cervical spine examination in August 2019. Significantly, the August 2019 VA examiner diagnosed degenerative disc disease with herniation and radiculopathy, noting an onset in 1997. The examiner then opined that it was less likely than not that the Veteran's cervical spine disorder was related to the Veteran's military service. As rationale for this opinion, the examiner noted that here is no evidence of cervical neck pain during service and the record is silent on neck pain until 1997. Furthermore, there were no injuries, traumas, or complaints on which to base a relationship to his neck pain on his years of active duty. As the August 2019 medical opinion also relied solely on the lack of in-service cervical spine treatment and did not consider the Veteran's competent allegations of continuity of symptoms, the Veteran was afforded a third VA cervical spine examination in January 2021. Significantly, the January 2021 VA examiner diagnosed cervical spondylosis and discogenic disease status post anterior cervical discectomy with fusion and bone graft, noting an onset in June 2003, as well as clinical evidence of mild bilateral sensory cervical radiculopathy residuals, noting an onset in 2021. The examiner then opined that it was less likely than not that the Veteran's cervical spine disorder is related to the Veteran's military service. As rationale for this opinion, the examiner noted that the available STRs are silent for a cervical spine condition or incidents that correlate with the onset of a cervical condition as seen on examination. All reports of medical history for periodic annual examinations are negative for a cervical spine condition. Also, the 2003 pre-surgical diagnosis of cervical spine condition, documented as cervical spondylosis, osteoarthrosis and discogenic disease, is a traumatic change that occur with normal aging process. Also of record is an October 2018 report from Dr. J.E. Significantly, Dr. J.E. noted the Veteran's military service as a combat engineer from 1992 and 1992 and opined that there was a causal relationship between the Veteran's military occupation and his cervical spine disability. 1. Service connection for a cervical spine disorder is granted. Upon review of the record, the Board finds that service connection for a cervical spine disorder is warranted. As above, the record contains at least one positive medical nexus opinions relating the Veteran's cervical spine disorder with his military service. Significantly, the October 2018 report from Dr. J.E. relates the Veteran's cervical spine disorder to his military service. Furthermore, the Veteran has made competent allegations of continuity of symptomatology of cervical spine symptoms since his military service which are supported by two fellow service members. While the March 2017, August 2019, and January 2021 VA examiners each provided negative nexus opinions in this case, the Board finds that these opinions are inadequate in that none of these opinions consider the Veteran's competent allegation of continuity of symptomatology nor the probative statements from the fellow servicemembers showing that the Veteran requested medical treatment for his cervical spine during his service but, due to the essential nature of his mission, he was not given leave to seek medical care. At this time, the Board declines to remand for an additional opinion as such would resemble a fishing expedition for negative evidence, which, in view of the available medical evidence, is not necessary. Indeed, obtaining such additional evidentiary development in this instance would only result in additional delay with no benefit to the appellant. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04, 69 Fed. Reg. 59,989 (2004). As such, the Board will resolve reasonable doubt in favor of the Veteran and find that a cervical spine disorder is due to the Veteran's military service. Therefore, service connection for a cervical spine disorder is warranted. 2. Service connection for right and left upper extremity cervical radiculopathy is granted. With regard to the radiculopathy issues, as above, both the August 2019 and January 2021 VA cervical spine examination reports show a diagnosis of cervical radiculopathy. Also, a January 2021 VA peripheral nerves examination report shows a diagnosis of bilateral cervical sensory radiculopathies and the examiner opined that the Veteran's bilateral cervical sensory radiculopathies are at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's cervical spondylosis and cervical disc herniation as such may trigger inflammation and irritation of cervical nerve roots causing bilateral cervical sensory radiculopathies. Upon review of the above evidence, the Board finds that service connection for right and left upper extremity cervical radiculopathy is warranted. As an initial matter, the Board finds that the Veteran has a current diagnosis of cervical radiculopathy of the bilateral upper extremities. Furthermore, there is medical evidence that such disability is related to the Veteran's now service-connected cervical spine disability specifically both the August 2019 and January 2021 VA cervical spine examination reports show a diagnosis of cervical radiculopathy and the January 2021 VA examiner related the Veteran's cervical radiculopathy to the now service-connected cervical spine disability. Accordingly, the Board finds that the evidence of record is sufficient to find that the Veteran's right and left upper extremity cervical radiculopathy is related to his military service. Therefore, service connection for right and left upper extremity cervical radiculopathy is warranted. 3. Service connection for right and left upper extremity peripheral neuropathy is denied. With regard to the peripheral neuropathy issues, the Veteran does not contend and STRs do not show any in-service complaints suggesting neuropathy of the upper extremities. Post-service VA treatment records show complaints of numbness of the hands associated with the cervical spine as early as December 2003. However, the record is negative for an actual diagnosis of bilateral upper extremity peripheral neuropathy until April 2014 when the Veteran underwent electrodiagnostic testing which showed bilateral moderate median entrapment neuropathy at the wrist level (bilateral carpal tunnel syndrome.) The Veteran was afforded a VA peripheral nerves examination in March 2017. Significantly, the examiner diagnosed bilateral medial nerve neuropathy, noting an onset in 2004, and opined that the Veteran's claimed peripheral neuropathy of the bilateral upper extremities was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected cervical spine disability. As rationale for this opinion, the examiner noted that there was clinical and electrodiagnostic evidence of median nerve entrapment at the wrists. The multiple electrodiagnostic studies done since 2004 suggest a radicular lesion that could explain the symptoms he suffers in his hands. There was no nexus of causality between the Veteran's cervical spine disability and peripheral neuropathy. The Veteran was afforded a second VA peripheral nerves examination in August 2019. Significantly, the examiner continued a diagnosis of carpal tunnel, noting an onset in 2014, and opined that the Veteran's claimed peripheral neuropathy of the bilateral upper extremities was less likely than not (less than 50 percent probability) proximately due to or the result of a service-connected condition. As rationale, the examiner noted that the Veteran's carpal tunnel syndrome and cervical spine disabilities are separate conditions that are not temporally related. The Veteran's cervical spine disorder and resulting progression started around the 1990s with imaging indicating diagnosis in 1997, and the carpal tunnel symptoms were reported in 2000 with diagnosis in 2014. Although symptoms may overlap with numbness and pain, a diagnosis of a peripheral nerve condition (carpal tunnel) is a different etiology than radiculopathy with symptoms originating at the root of the nerve at the spine or exit from the spine. With regard to the Veteran's service-connected lumbar spine disability, the examiner noted that the Veteran's peripheral nerve condition, diagnosed as carpal tunnel syndrome, is less likely than not proximately due to or the result of the Veteran's lumbar condition as carpal tunnel is an upper extremity peripheral nerve disability and the Veteran's service-connected lumbar spine disability only affects the lower extremities. They are also not temporally related. The Veteran was afforded a third VA peripheral nerves examination in January 2021. Significantly, the examiner continued a diagnosis of bilateral moderate median entrapment neuropathy (at wrist level), noting a date of onset of 2014, and opined that this condition was less likely than not (less than 50 percent probability) proximately due to or a result of the Veteran's cervical spine disorders as such disability is caused by entrapment at the wrist level and not caused by cervical disc disease inflammation or irritation of cervical nerve roots. Upon review of the above evidence, the Board finds that service connection for peripheral neuropathy of the upper extremities is not warranted. With regard to presumptive service connection, while "other organic diseases of the nervous system," which may include peripheral neuropathy, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a), there is no indication of peripheral neuropathy within one year of the Veteran's discharge from military service. As above, the Veteran was not actually diagnosed with peripheral neuropathy of the upper extremities until April 2014. As such, presumptive service connection on the basis of continuity of symptomatology is not warranted for the Veteran's peripheral neuropathy of the upper extremities. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claim is also denied on a direct basis. The Veteran's STRs are negative for neurological problems and post-service treatment records are negative for neurological symptoms until December 2003. The Veteran was not actually diagnosed with peripheral neuropathy until April 2014, approximately 22 years after his discharge from service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Also, there is no medical evidence in the record that links the Veteran's current peripheral neuropathy of the upper extremities to an incident of the Veteran's active military service. Significantly, there have been no allegations of continuity of symptomatology with regard to the Veteran's peripheral neuropathy. While no medical opinion has been obtained regarding whether the Veteran's peripheral neuropathy is related to his military service on a direct basis, the Veteran has not alleged service connection on a direct basis (only a secondary basis) and the Veteran's mere conclusory generalized lay statement that a service event caused the claimant's current peripheral neuropathy is insufficient to require the Secretary to obtain such an opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The claim is further denied on a secondary basis. As above, the March 2017, August 2019, and January 2021 VA examiners each found that the Veteran's peripheral neuropathy of the bilateral upper extremities is not related to the Veteran's now service-connected cervical spine disorder. Also, the August 2019 VA examiner found that the Veteran's peripheral neuropathy of the bilateral upper extremities is not related to the Veteran's service-connected lumbar spine disorder. The rationale for each of these opinions was, essentially, that there is no physical nor temporal relationship between peripheral neuropathy and cervical/lumbar spine disabilities. While the Veteran has alleged that his peripheral neuropathy was incurred during his military service, the Board finds that the question regarding the potential relationship between the Veteran's peripheral neuropathy and any instance of his military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of the Veteran's peripheral neuropathy involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy of the upper extremities. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.