Citation Nr: 21032253 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 19-35 848A DATE: May 26, 2021 ORDER The December 10, 2020 Board decision is vacated only as it pertains to the issue of entitlement to service connection for bilateral upper extremity radiculopathy. Entitlement to service connection for bilateral upper extremity radiculopathy is denied. FINDINGS OF FACT 1. In a December 10, 2020 decision, the Board, in pertinent part, determined by finding of fact, conclusion of law, and analysis that the claim for entitlement to service connection for bilateral upper extremity radiculopathy was denied; but in the Order section of the decision, erroneously indicated that the claim was being granted. 2. The Veteran's bilateral upper extremity radiculopathy was not shown in service and is not shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for vacating the December 10, 2020 Board decision in relation to claim for entitlement to service connection for bilateral upper extremity radiculopathy, only, have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. The criteria for entitlement to service connection for bilateral upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to December 1990. This matter is on appeal before the Board of Veterans Appeals (Board) from an October 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 10, 2020 decision, the Board, in pertinent part, determined by finding of fact, conclusion of low, and analysis that entitlement to service connection for bilateral upper extremity radiculopathy was denied. However, in the Order section of the December 10, 2020 decision, the Board mistakenly indicated that the claim was being granted. To correct this error, the Board is vacating the December 10, 2020 decision only as it pertains to entitlement to service connection for upper extremity radiculopathy as explained in Part A below. The Board is also issuing a new, corrected decision, again denying entitlement to service connection for upper extremity radiculopathy as explained in Part B below. A) PARTIAL ORDER TO VACATE The Board may vacate a decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 C.F.R. § 20.1000. In the December 10, 2020 decision, the Board, in pertinent part, determined by finding of fact, conclusion of law, and analysis that entitlement to service connection for bilateral upper extremity radiculopathy was denied. However, the Board mistakenly indicated in the Order section of the December 10, 2020 decision that service connection for bilateral upper extremity was being granted. In order to correct this error, the Board is now vacating the December 10, 2020 Board decision as it pertains to the issue of entitlement to service connection for bilateral upper extremity radiculopathy, only. The Board is not disturbing any other aspect of the December 10, 2020 decision. The Board is also issuing a corrected decision pertaining to the claim for service connection for bilateral upper extremity radiculopathy. This corrected decision is presented under subheading B) below. B) Entitlement to service connection for bilateral upper extremity radiculopathy is denied. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain listed, chronic disabilities, including arthritis, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has asserted that she has current upper extremity radiculopathy and/or neurological impairment (e.g. tingling and numbness) related to her military service. The claim will also be considered on a secondary basis. The December 10, 2020 Board decision denied claims for entitlement to service connection for cervical spine, bilateral shoulder, and bilateral hand/finger disabilities. To the extent that the December 10, 2020 Board decision analysis pertaining to these claims aids in the discussion of the claim for bilateral upper extremity radiculopathy on a direct or secondary basis, it is repeated in the analysis below. The Veteran's service treatment records show that she was seen by medical personnel in September 1990 for a complaint of pain in the right side of the neck. She indicated that the area had felt very hot and painful for the past two days. Physical examination showed positive tenderness over the right trapezius. The diagnostic assessment was muscular strain and the Veteran was treated with pain medication. The service treatment records do not document any other orthopedic or neurological problems with the Veteran's cervical spine/neck or upper extremities. The post-service medical evidence does not tend show any cervical spine or upper extremity pathology any earlier than 1997. In March 1997, a VA hand X-ray was taken after the Veteran reported a jammed thumb with pain and swelling. The X-ray produced a diagnostic impression of normal study. In January 2000, VA cervical spine and shoulder X-rays were taken after the Veteran reported constant severe pain in the right shoulder starting earlier in the week, noting that something popped while she was buttoning her clothes. The cervical spine X-ray showed mild degenerative disc disease at C5-6 and the right shoulder X-ray produced a diagnostic impression of grossly normal study. At a March 2004 VA neurosurgery visit, the Veteran was seen for evaluation of neck pain. She reported that she thought she hurt her neck in 1996 either by lifting or pulling on a patient. She indicated that her neck pain had intensified over the past year with intermittent numbness in the right upper extremity. An MRI in February 2004 showed disc prolapse at C5-6 on the left side with no compression of the cord. The evaluating neurosurgeon diagnosed prolapsed intervertebral disc at C5-6 on the left. Surgery was offered and the neurosurgeon noted that because there was no neurological deficit, it was entirely up to the Veteran to decide if and when to go ahead. In May 2010, it was noted that the Veteran had fallen and injured her right hand after trying to do a handstand. A VA X-ray showed old fractures of the bases of the fourth and fifth metacarpal bones. There was also a deformity of the scaphoid bone that appeared to be chronic. There were no other bone or joint abnormalities noted. The diagnostic assessment was metacarpophalangeal joint sprain, ring and middle fingers, left hand, and contusion of the thenar eminence of the left hand. At a September 2010 VA orthopedic visit, it was noted that the Veteran fell five months previously resulting in contusion of the left hand. She reported that currently the hand and wrist were still sore and stiff at times. The pertinent diagnostic assessment was left wrist sprain. In November 2011, the Veteran was complaining of right arm pain and that she was losing strength in the right hand and arm. VA X-rays of the right shoulder and humerus showed a diagnostic impression of normal right humerus and forearm. At a December 2011 VA rheumatology consultation, the Veteran reported achy joints, including in the elbows, wrists, and hands, especially the interphalangeal joints of the digits, with the achiness present for at least three years. The diagnoses were osteoarthritis and fibromyalgia. In January 2012, the Veteran reported pain in the proximal interphalangeal joints and wrists in both hands. Bilateral hand X-rays were performed, which produced a diagnostic impression of normal hands bilaterally. At an April 2012 VA medical visit, it was noted that the Veteran had suffered a right-hand injury in March 2012. At an October 2012 private medical visit, the Veteran reported dealing with neck pain for years. She felt the pain was a result of years of heavy activity in the military and the police. The pertinent diagnosis was cervical spine pain. In an April 2013 statement, a coworker and friend of the Veteran reported that she had known the Veteran for about six years and that over the years, the Veteran had suffered a lot of pain over her whole body. In a separate April 2013 statement, another friend and co-worker of the Veteran indicated that he had known the Veteran for over 10 years. He indicated that the Veteran suffered from constant pain and required a lot of medication to function. In a separate April 2013 statement, the Veteran reported that she has not been able to run or do other things since 1994 due to constant pain. At a February 2016 VA medical visit, the Veteran reported recently being in a motor vehicle accident with pain in the cervical spine. In March 2016, she requested an appointment because she was having numbness and tingling in the left arm since the motor vehicle accident and was also experiencing more neck pain than usual. In a February 2017 statement, the Veteran indicated that the training she received as a Military Police officer aggravated and brought on her osteoarthritis over the years while on active duty in the Army. She noted long road marches running for long periods of time over long distances. She indicated that she carried at the most 55 to 60 pounds of weight on her back such as her ruck sack, barrel bags for her M60 machine gun and carrying her M16 rifle and her web belt. She reported that she had suffered chronic pain from her MP training. She noted that as a female MP, she could not complain about the pain she felt in her neck due to all the equipment she had to carry on her back. Rather, she had to prove that she could perform as well as her fellow male soldiers. In an April 2017 statement, the Veteran indicated that she was claiming arthritis, including in her neck, shoulders, and hand/finger bones. She indicated that she had extreme chronic pain, stiffness, and soreness in her joints. She reported that she had symptoms of numbness and tingling, including down her arms and hands, that debilitated her to the extent that directly looking up caused dizziness, which she also experienced at times when holding her grandson. She noted that different body parts, including her neck, would give way due to repetitive daily movements, including during her work in the emergency room. She indicated that she was taking a daily regimen of ibuprofen, Naproxen and other NSAIDs to deal with the pain. She noted that she had had previous MRIs, CT scans and X-rays that showed structural abnormalities, including bulging disks and degenerative disc disease in the neck and shoulders. She attributed these problems to many years of lifting, carrying, and straining her neck while serving as a Military Policemen. She noted that this duty involved rigorous physical training, including sit-ups, running, pushups and repetitive carrying of rucksacks, equipment and weapons on her back and shoulders. She indicated that working 40 hours a week sitting at a computer caused all her joints to ache and she used a topical gel to treat the problem, but this only temporarily eased the pain. The Veteran indicated that there was absolutely no doubt in her mind that while she served on active duty as a Military Police Officer she incurred her claimed disabilities that have been diagnosed as osteoarthritis. In a statement accompanying her December 2019 Form 9, the Veteran reported that recently she had to wear a soft cervical collar and was using Lidocaine patches to treat her neck pain. She also used her TENS unit and her heating pad when she returned home from work. She noted that her neck would continually pop, and she could feel the disc pressing against her nerve. She reported that she was always in pain and had limited mobility turning her neck. She noted that the pain radiated down her neck and shoulder and repeatedly looking up and down debilitated her by causing dizziness. The above summarized evidence does not show that any chronic disability of the cervical spine/neck or upper extremities was present in service. Notably, the service treatment records show that the Veteran was seen in September 1990 for muscular strain in the neck/trapezius area. However, there is no indication that this injury resulted in any chronic symptomatology in the neck or upper extremities. Also, there is no post-service medical evidence of any neck/upper extremity pathology until 1997 or thereafter. This is a factor that weighs against a claim for direct service connection. See Maxson v. West, 12 Vet. App. 452 (1999), affd, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, there is no medical evidence of record, which even suggests a relationship between any current cervical spine or upper extremity disability and the Veteran's military service. Moreover, because there is no medical evidence, which even suggests a relationship between any current disability of the cervical spine or upper extremities and military service and because continuity of symptomatology in these anatomical areas is not shown (and as explained below, the Veteran's allegations concerning continuity are not credible), a VA examination or medical opinion pertaining to a potential relationship between any current cervical spine or bilateral upper extremity radiculopathy and military service is not necessary in this case. 38 C.F.R. § 3.159(c)(4). The Veteran has generally asserted that her current orthopedic and neurological disabilities are related to her duties in service, including lifting, carrying and straining her neck; performing rigorous physical training; and the repetitive carrying of rucksacks, equipment and weapons on her back and shoulders. However, as a layperson without any demonstrated expertise concerning the etiology of neck/cervical spine and upper extremity disabilities, this general assertion (not based on continuity of symptomatology) may not be afforded any probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also notes that in her February 2017 statement, the Veteran referred to "chronic pain" from her MP training. To the extent this constitutes an allegation of continuity of neurological symptomatology of the cervical spine or upper extremities since service, the Board does not find this assertion credible. In this regard, the VA treatment records showing the first post-service instances of pathology associated with these claimed disabilities consistently lack any report by the Veteran that she first noticed the pathology during service. Also, in her earlier April 2013 statement, the Veteran specifically reported that she had been unable to run or do other activities since 1994 without indicating that any problems with her cervical spine or upper extremities had begun in service (1985 to 1990) and continued thereafter. The Board presumes that had the Veteran been experiencing chronic pain in these areas during service, she would have reported this history to medical personnel and/or in conjunction with her claims much earlier than February 2017. Accordingly, the Board credits the Veteran's earlier reporting indicating that such continuity was not present. In sum, chronic cervical spine/neck and upper extremity disabilities were not shown in service or for a number of years thereafter and any current disability in these areas are not shown to be otherwise related to service, including the Veteran's MP duties therein. Accordingly, the preponderance of the evidence is against the claim and service connection for upper extremity radiculopathy must be denied. Alemany, 9 Vet. App. 518 (1996). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.