Citation Nr: 21032015 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-59 848 DATE: May 25, 2021 ORDER Entitlement to service connection for arthritis of the cervical spine is granted. Entitlement to service connection for radiculopathy of the right upper extremity is granted. REMANDED Entitlement to service connection for insomnia is remanded. FINDINGS OF FACT 1. The Veteran's arthritis of the cervical spine is proximately aggravated beyond its natural progression by her service-connected degenerative disc disease with scoliosis and mild spondylosis, thoracolumbar spine. 2. The Veteran's radiculopathy of the right upper extremity is proximately due to her service-connected arthritis of the cervical spine. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis of the cervical spine are met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. 2. The criteria for service connection for radiculopathy of the right upper extremity are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1997 to April 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of November 2016. In March 2021, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310(b). Secondary service connection generally requires a current disability; a service-connected disability; and a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509 (1998). Arthritis and peripheral neuropathy are among the chronic diseases that will be presumed to be related to service, if shown as chronic in service or if manifested to a compensable degree within one year following separation from service. For the listed chronic diseases, a continuity of symptomatology since service is also a means of establishing service connection. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for cervical arthritis. Following the Veteran's claim of September 2016, a rating decision of November 2016 denied service connection for cervical arthritis (claimed as cervical stenosis). The Veteran appealed by filing a notice of disagreement (NOD) in August 2017 and VA Form 9 in October 2017. An August 2016 record of Dr. V. K. diagnoses disc herniation and stenosis of the neck at C4-C5 and C5-C6. An August 2016 radiological report of Dr. J. P. notes the following on the basis of an MRI of the cervical spine: straightening of the normal cervical lordosis; mild spondylosis; right-side uncal vertebral joint hypertrophy and mild right foraminal narrowing at C2-C3; posterior central disc protrusion with superior disc extrusion at C3-C4; disc desiccation, broad-based posterior disc bulging, left-sided uncal vertebral joint hypertrophy, mild left foraminal narrowing and mild spinal stenosis at C4-C5; and disc space narrowing, left posterior disc protrusion with an annular fissure and mild spinal stenosis at C5-C6. An October 2016 record of Dr. J. B. diagnoses cervical stenosis. A rating decision of October 2012 granted service connection for degenerative disc disease with scoliosis, thoracolumbar spine. A rating decision of March 2019 redesignated the disability as degenerative disc disease with scoliosis and mild spondylosis, thoracolumbar spine. In October 2016, the Veteran underwent a VA examination for neck (cervical spine) conditions. Arthritis of the cervical spine was diagnosed. In the opinion of the examiner, the Veteran's arthritis of the cervical spine is at least as likely as not aggravated beyond its natural progression by her service-connected back disability. The rationale was that the cervical arthritis, being in close proximity to the other spinal conditions, can be "affected/progressed" by the degenerative disc disease and scoliosis. The examiner explained that it could be assumed that that back condition has an impact on the cervical symptoms. Without explanation, it was determined that the baseline severity of the cervical spine disorder was unknown. Under 38 C.F.R. § 3.310(b), VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The October 2016 VA examiner did not determine the baseline level of severity of the cervical spine disorder. She found that the baseline was "unknown," not that it was impossible to determine. The determination of the examiner was that the service-connected disability of the back likely aggravated the cervical spine disorder. The language of 38 C.F.R. § 3.310(b) does not preclude an award of service connection in the current situation. The baseline level of disability is primarily a rating consideration. It will later be determined if evidence of quantifiable aggravation exists to support a compensable evaluation, which is not the issue immediately before the Board. Evidence that tends to weigh against the claim is the opinion of the October 2017 VA examiner for the neck, who determined that it was unlikely that the Veteran's disability of the thoracolumbar spine aggravated her degenerative arthritis of the neck. The rationale consisted entirely of the statement that there is no medical evidence supporting a claim that degenerative disc disease in the thoracolumbar spine will aggravate degenerative joint disease in the cervical spine beyond its natural progression. In so stating, the examiner showed no awareness of the finding of the October 2016 VA examiner that the Veteran's arthritis of the cervical spine is at least as likely as not aggravated beyond its natural progression by her service-connected back disability. Because the examiner's analysis appears to be incomplete, the negative opinion must be accorded less probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). With the three elements of Wallin having been met, service connection for arthritis of the cervical spine is warranted. 2. Entitlement to service connection for radiculopathy of the right arm. Following the Veteran's claim of September 2016, a rating decision of November 2016 denied service connection for radiculopathy of the right arm. The Veteran appealed by filing a NOD in August 2017 and VA Form 9 in October 2017. A November 2015 treatment record of Dr. M. L. notes the Veteran's complaint of bilateral cervical pain extending into both arms and wrists. Upon examination, she was found to be experiencing tenderness in the "bilateral cervical to bilateral medial scapular region." Cervical radicular pain and bilateral cervical radiculitis were diagnosed. An April 2016 record of Dr. M. H. noted the Veteran's complaint of pain travelling up her right shoulder, and the diagnosis was cervical radiculopathy. An October 2016 record of Dr. J. B. diagnosed cervical stenosis and noted, as clinical history, neck and right shoulder pain. A February 2018 chiropractic record indicated an assessment/encounter diagnosis of "radiculopathy, cervical region." Palpation revealed hypertonicity and tenderness in the paraspinal muscles on the right. The findings of an October 2017 VA examination for the neck and an October 2017 VA examination report for peripheral nerves were that the Veteran does not have a peripheral nerve condition or peripheral neuropathy. In the latter report, the examiner noted the Veteran's report of having numbness down her right arm. However, the testing for muscle strength, reflex, sensory, trophic changes, and upper extremity nerves and radicular groups was normal. The examiner noted a February 2015 record of Dr. E. R., which indicated a normal electromyography (EMG) study evidencing no C5-T1 radiculopathy at any level on either side. On the basis of a medical diagnosis of record, the Board determines that the Veteran has a current disorder of radiculopathy of the right upper extremity. Any reasonable doubt as to the matter is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. While the disorder was not diagnosed by the October 2017 VA examinations, those reports make no note of the November 2015 diagnosis of cervical radicular pain and bilateral cervical radiculitis or the April 2016 diagnosis of cervical radiculopathy. Because the analysis of the examination reports thus appears to be incomplete, the examiner's findings must be accorded less probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, to the extent that the VA examiner based the lack of a diagnosis on the negative EMG study of February 2015, the Board notes that, in the opinion stated in the October 2012 VA examination report for the Veteran's back, EMG studies are rarely required to diagnose radiculopathy in an appropriate clinical setting. As explained in an above section, today's order by the Board will grant service connection for arthritis of the cervical spine. A VA medical opinion of November 2017 states that the Veteran's radiculopathy of the upper extremity, if confirmed, is due to her cervical spine degenerative joint disease. The rationale explained why upper extremity radiculopathy could not be attributed to the Veteran's service- connected disability of the thoracolumbar spine. There is no contrary opinion of record with respect to secondary service connection. With the three elements of Wallin having been met, service connection for radiculopathy of the right upper extremity is warranted. REASONS FOR REMAND 3. Entitlement to service connection for insomnia is remanded. Following the Veteran's claim of September 2016, a rating decision of November 2016 denied service connection for insomnia. The Veteran appealed by filing a NOD in August 2017 and VA Form 9 in October 2017. The Veteran contends in a statement of December 2017 that her insomnia is a direct result of currently service-connected disabilities and medication taken for them. Her service-connected disabilities include bipolar disorder with anxious distress associated with chronic dermatitis of the hands and wrists, and snoring disorder associated with allergic rhinitis. An August 2015 record of Dr. D. S. made an assessment of: "loud snoring, unrefreshing sleep, daytime fatigue, and daytime sleepiness suspect OSA." "Secondary insomnia" was also assessed. The doctor stated that he suspected that the insomnia is primarily from the obstructive sleep apnea. A January 2016 record of Dr. S. N. diagnoses insomnia, unspecified type. Major depression, generalized anxiety disorder, and insomnia are separately listed in a January 2016 problem list prepared by Dr. S. N. An April 2016 record of Dr. S. N. states that the Veteran is currently under his care for anxiety and insomnia issues and is undergoing treatment for both conditions. A September 2015 record of Dr. W. B. diagnoses physiological hypersomnia, unspecified, and primary snoring disorder. In February 2019, the Veteran underwent a VA examination for sleep apnea. She was determined to have sleep apnea in the form of a primary snoring disorder and not obstructive sleep apnea. Persistent daytime hypersomnolence was a symptom attributable to the Veteran's sleep apnea. A sleep study performed in August 2015 did not document a sleep disorder breathing, and it was determined that the Veteran does not require the use of a CPAP machine. In February 2019, the Veteran underwent a VA medical examination for posttraumatic stress disorder (PTSD). Bipolar disorder with anxious distress was diagnosed, for which chronic sleep impairment was noted to be a symptom. The examiner specifically remarked, "For the claimed condition of insomnia with secondary snoring disorder, there is no diagnosis, because sleep problems are a symptom of her anxiety and not a separate diagnosis." The Board is not able to grant service connection upon the current record. The August 2015 opinion of Dr. D. S. was that the Veteran's separately diagnosed insomnia is secondary to her obstructive sleep apnea. The Veteran is service- connected not for obstructive sleep apnea, but for a snoring disorder. The February 2019 VA examination report of PTSD is inadequate for the purpose of the insomnia claim, because the examiner showed no awareness that the Veteran has been diagnosed with insomnia as a disorder distinct from her psychiatric disability. In particular, the January 2016 record of Dr. S. N. diagnoses insomnia, unspecified type. The April 2016 record of Dr. S. N. states that the Veteran is currently under his care for anxiety and insomnia issues and is undergoing treatment for both conditions. Because the analysis of the VA examiner was incomplete, the Board will remand for a VA medical opinion that considers the Veteran's full medical history with respect to the claimed disability of insomnia. : In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. The Veteran testified before the Board that she had active Reserve service until 2009. In April 2020, an honorable discharge certificate for the Veteran's service in the U.S. Air Force Reserve, dated March 16, 2009, was added to the claims folder. The Veteran alleges that VA failed in its duty to assist under 38 C.F.R. § 3.159 by not seeking to secure personnel records and service treatment records relating to her Reserve service. Service connection may be granted for a current disability resulting from an injury or disease incurred in, or aggravated by, active military service. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in, or aggravated in, line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in, or aggravated in, line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. An August 2015 record of Dr. D. S. notes the Veteran's report that she had suffered from sleeping problems for at least five years. This raises the possibility that the Veteran showed insomnia in a period of active service other than March 1997 to April 2001 (the service period shown on the DD Form 214). Therefore, the Board will remand for verification of the Veteran's periods of service. It is not clear from the record that all necessary efforts to obtain complete records pertaining to service have been undertaken. Additional evidentiary development efforts are required as to service personnel and/or treatment records corresponding to service in the Air Force Reserve. The Veteran's periods of ACDUTRA and INACDUTRA should be verified. The matter is REMANDED for the following action: 1. Undertake appropriate development to associate with the record any outstanding and identified private medical records that are pertinent to the remanded issue and any outstanding VA treatment records. All efforts to obtain such records should be documented in the electronic claims folder. 2. Undertake appropriate development to verify all periods of the Veteran's active duty for training (ACDUTRA), inactive duty for training (INACDUTRA), or active duty for special work in the Air Force Reserve, including for the period April 2001 to March 2009. All such available reports should be associated with the claims folder. 3. Obtain an opinion from an appropriate clinician as to the nature and etiology of any insomnia disorder at any time since the Veteran's claim was filed in September 2016, even if now resolved. The clinician must opine as to whether any such disorder at least as likely as not: a. Is related to an in-service injury, disease, or event; b. Had its inception during service; or c. Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability, to include medication taken for service-connected disability, and to include specifically the service-connected disabilities of bipolar disorder with anxious distress associated with chronic dermatitis of the hands and wrists, and snoring disorder associated with allergic rhinitis. If the Veteran's medical history indicates that the diagnosis relating to insomnia has changed, the clinician must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder. The clinician must review the entire claims folder for evidence pertinent to the requested opinion. The clinician's report must give specific consideration to the January 2016 record of Dr. S. N. that diagnoses "insomnia, unspecified type" and the April 2016 record of Dr. S. N. which states that the Veteran is being treated for the conditions of anxiety and insomnia. Notify the clinician that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the clinician that laypersons, such as the Veteran, are generally considered to be competent to attest to matters of first-hand knowledge, including observable symptomatology. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician shall 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 particular question(s). A rationale is required for all opinions in the report. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.