Citation Nr: 22007303 Decision Date: 02/09/22 Archive Date: 02/09/22 DOCKET NO. 15-12 759 DATE: February 9, 2022 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for radiculopathy of the bilateral upper extremities secondary to a cervical spine disability is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against a finding that the Veteran's cervical spine disability began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's radiculopathy of the bilateral upper extremities are not secondary to a service-connected disability, and are not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for radiculopathy of the bilateral upper extremities secondary to a cervical spine disability 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 in the United States Army from July 1992 to July 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. The Board remanded these matters in June 2018, October 2020, July 2021, and October 2021 for additional development. The case is now returned to the Board for further appellate consideration. SERVICE CONNECTION Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuity of symptomatology is only applicable to those diseases recognized as chronic for VA purposes. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a cervical spine disability The Veteran seeks service connection for a cervical spine disability, claimed as a herniated disc in his neck, which he contends was incurred in or caused by military service. The Veteran specifically asserts that during service he was required to perform regular physical training, including completing 200 to 300 sit-ups per day with his hands clasped behind his neck and frequent road marches and hikes with a loaded rucksack weighing over 100 pounds. He contends that these activities caused constant strain on his neck and, in the absence of any other injury to his neck, is the only explanation for his current cervical spine problems. The Veteran stated that "aside from [his] time spent in the military" he has "never had any trauma to [his] neck." See December 2012 Correspondence. The Board notes that the Veteran has confirmed cervical spine diagnoses of degenerative disc disease, herniated discs, and cervical strain. A review of the Veteran's service treatment records were negative for any discussion of complaints or diagnoses of a cervical spine condition. In a May 1997 treatment record, the Veteran stated that he was lifting up to 70 to 80 pounds about 2 weeks ago, and since that time, has been having pain in the neck and the lower back. The Veteran reported no other injury. The Veteran noted a history of low back pain, but has not had a flare for some time. Pain in the neck was noted to be shooting down the right side of the back. It was noted that low back pain does not radiate. There is no numbness or tingling. In a February 1998 consultation sheet, the Veteran was noted to have chronic neck pain. The Veteran reported that his pain started during active duty and that the Veteran appears to be aggravating his condition by trying to keep in shape with exercise regimen. A February 18, 1998 radiology report notes normal radiographic study of the cervical spine. In a September 2009 private treatment note, the Veteran reported that he has neck and back pain that started in 1996 while in the Army. In an April 2010 private treatment record, the Veteran reported neck pain. The examiner noted that the MRI showed a C5/C6 disc bulge and assessed the Veteran with cervical disc degeneration. In a December 2012 private treatment note, the examiner indicated that he has a report of the MRI of the cervical spine that was done in February 2012. The examiner noted that the MRI indicates degenerative disc disease and facet arthropathy at C5-C6. In its June 2018 remand, the Board found a December 2012 VA medical opinion and May 2013 addendum opinion to be inadequate. The Board noted that the Veteran underwent a VA cervical spine examination in December 2012. Imaging tests showed the Veteran to have multilevel degenerative disc disease and facet osteoarthritis of the cervical spine, especially at C5-6. The examiner diagnosed the Veteran with herniated disc with cervical radiculopathy. The examiner opined that the Veteran's herniated disc is less likely than not proximately due to or the result of the Veteran's service-connected lumbar spine disability, stating that from an orthopedic standpoint there is no relation between lumbar conditions and cervical conditions. In a May 2013 addendum opinion, the same examiner opined that the Veteran's cervical spine condition is less likely as not due to active service. In his rationale, the examiner noted that the Veteran's service treatment records are silent for injury to the cervical spine and that an x-ray taken three years after separation showed normal findings. The examiner also stated that he was unable to view the Veteran's private treatment records, however, then stated that they show "nothing re: neck." As noted above, the Board found that the December 2012 examination and subsequent May 2013 addendum opinion were inadequate as they do not adequately address the nature and etiology of the Veteran's cervical spine condition. In its October 2020 remand, the Board found a July 2019 VA medical opinion to be inadequate to decide the Veteran's claim. In this regard, the Board noted that, in that medical opinion, the VA examiner opined that the Veteran's cervical spine disability was less likely than not incurred in service. However, the examiner did not provide a medical rationale to support this conclusion; rather, she simply referenced, without explanation, two post-service medical records from May 1997 and February 1998 in which the Veteran sought treatment for neck pain. Because the examiner did not support her conclusion with sufficient medical rationale, the Board found this opinion to be inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Therefore, the Board directed the RO to obtain an addendum VA medical opinion to fully address the nature and etiology of the Veteran's cervical spine disability with consideration of his lay statements as to its onset. In December 2020, the Veteran underwent a new VA examination, and a medical opinion was obtained from the same VA examiner who provided the inadequate July 2019 medical opinion. In its July 2021 remand, the Board found the December 2020 examiner provided, nearly word-for-word, the same negative etiology opinion as was provided in July 2019.The Board noted that the examiner referenced two post-service medical records from May 1997 and February 1998 in which the Veteran sought treatment for neck pain but added, inexplicably, that "neck pain noted two years after discharge is not clinically relevant to DDD [degenerative disc disease]." Further, upon review, the Board expressed that as to the Veteran's lay statements as to the in-service onset of his neck pain, the examiner stated, "there is no medical evidence that sit-ups cause DDD of the cervical spine." In its July 2021 remand, the Board found the December 2020 opinion to be inadequate as it was conclusory and not supported by any medical rationale. The Board requested another opinion that adequately considers and discusses the Veteran's contention that he developed neck problems as a result of regular physical training (sit-ups, weighted marches, etc.) during military service and that he has suffered no other neck injury that would explain his disability. The examiner was asked to specifically address the relevance, if any, of the May 1997 private treatment record documenting complaints of neck pain (within two years of discharge) and the February 1998 MRI of the cervical spine. Thereafter, the Veteran was provided a VA medical opinion in August 2021. The examiner stated that the Veteran served from July 1992 to July 1995. The examiner noted that a review of the medical records does not show that the Veteran was evaluated for this condition while in service. The examiner stated that the records do not show evidence that the Veteran was evaluated for neck pain within a year of discharge. The examiner reported that the first documentation of neck pain after separation from service was in May 1997, which was almost two years after service. The examiner expressed that the Veteran's statement in support of the claim were reviewed and that the Veteran notes that he experienced neck stiffness while in service, but no specific injury. The examiner noted that the Veteran's neck stiffness, that did not require medical attention, does not correlate with cervical DDD and DJD (degenerative joint disease). The examiner expressed that in 1997, the Veteran was evaluated for neck pain after lifting weights which is a more likely cause of the current neck conditions. Therefore, the examiner opined that it is less likely that the cervical DDD and DJD, and left upper extremity radiculopathy conditions began while in service. Once again, in its October 2021 remand, the Board found that the VA examiner's opinion was inadequate, and that the record still does not contain a medical opinion that is sufficient to fairly decide the Veteran's service connection claim. Pursuant to the October 2021 Board remand, the Veteran was afforded another VA medical opinion December 2021. The examiner stated that there is no evidence of a neck condition in service to include as related to the Veteran's military occupational specialty, ruck marching, physical training, running, etc. The examiner stated that there was no separation examination located but was presumptively performed. The examiner stated that there is no evidence of a condition at separation, and it is highly unlikely that a cervical spine condition would have gone unnoted or unreported. The examiner expressed that the Veteran's claim of an onset in service with continuity of symptoms since service, due to activities while in service, is not supported by the medical evidence. The examiner noted that records dated on May 5, 1997 clearly note a two-week history of neck stiffness associated with heavy lifting. Therefore, the examiner found that there is no nexus established in service, at the time of separation or for two years post-service, with a clear demarcation of onset as noted in medical records. The examiner stated that the Veteran did have a complaint of mechanical low back pain noted in records in January through March 1995. However, the examiner noted that there was no evidence of an associated neck condition. Therefore, the examiner opined that it is less likely than not that the Veteran's conditions, currently diagnosed as degenerative spine disease with radiculopathy, DDD and herniated nucleus pulposus had their nexus in service or are due to events in service. The examiner expressed that it is more likely than not that the nexus for the Veteran's complaints arose in 1997. The examiner noted that X-rays dated February 18, 1998 were normal. The examiner stated that although the discs themselves could not be evaluated on an X-ray, disc space narrowing would have been evident. The examiner reported that there is no 1998 MRI available and an MRI from 1998 would not alter this opinion, as the onset clearly would have been related to 1997 events. The examiner stated that the earliest documented MRI is November 26, 2002 and thus further separating the diagnoses from events in service. Based on the foregoing, the Board finds that the most persuasive evidence is against a finding that the Veteran's cervical spine disability is causally related to his period of service. First, to the extent that the Veteran has asserted that he has experienced continuous symptoms since service, these statements are competent. However, they directly conflict with other statements made by the Veteran concerning the onset and continuity of his cervical spine symptoms since service. For example, the Veteran stated that "aside from [his] time spent in the military" he has "never had any trauma to [his] neck." See December 2012 Correspondence. However, in a May 1997 treatment record, the Veteran stated that he was lifting up to 70 to 80 pounds about 2 weeks ago, and since that time, has been having pain in the neck and the lower back. In addition, the Veteran reported no other injury. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Second, the Board finds it persuasive that the service treatment records are absent of any neck complaints in service when the service treatment records show that he did report other musculoskeletal conditions such as a low back pain, an ankle injury, and foot pain. Accordingly, it is reasonable to expect that there would be some notation of complaints pertaining to the neck in the service treatment records had such problems manifested at that time, as the Veteran reported other musculoskeletal conditions. Finally, the Board finds the December 2021 VA examiner's opinion is highly persuasive to the issue at hand. The examiner possesses the necessary education, training, and expertise to provide the requested opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the examiner provided a fully articulated conclusion adequately supported by medical rationale, consideration of the Veteran's lay statements, and citation to the Veteran's claims file and medical history. The Board finds that opinion constitutes persuasive evidence on the medical nexus question, based on review of the Veteran's documented medical history and assertions as well as consideration of the Veteran's contentions. The opinion provided a clear rationale based on an accurate discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board further notes that the Veteran has not presented or identified any persuasive medical evidence or opinion that supports his claim for service connection for a cervical spine disability. There is no medical opinion of record linking the Veteran's cervical spine condition to his military service. The Board observes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA health care professional, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). For these reasons, the Board finds the December 2021 opinion to be the most persuasive evidence of record. As this opinion is the only persuasive medical opinion of record, and it weighs against finding that the Veteran's cervical spine disability is related to an in-service injury or disease, service connection must be denied. The Board has considered the Veteran's assertion that his cervical spine disability is related to service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran's cervical spine disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, any opinion by the Veteran regarding the nature or etiology of his cervical spine condition is not competent evidence, and any such lay assertions are outweighed by the most persuasive medical evidence of record. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran's cervical spine disability is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) 2. Entitlement to service connection for radiculopathy of the bilateral upper extremities secondary to a cervical spine disability The Veteran is seeking service for radiculopathy of the bilateral upper extremities secondary to a cervical spine disability. The Veteran testified that the pain in the arms and left pointer finger pain are all related to the neck. See Board hearing transcript at 12. In its October 2020 remand, the Board noted that the above service connection claim was previously before the Board as three separate issues: a bilateral shoulder disability, a bilateral arm disability, and numbness of the left pointer finger. The Board stated that the Veteran has repeatedly described these disabilities with terms such as "shooting pain," "tingling," and "numbness." The Board expressed that after undergoing musculoskeletal examinations in July 2019, the Veteran was found to have radiculopathy of the upper extremities associated with his cervical spine disability. As such, the Board recharacterized the Veteran's claim to best comport with his description of the claim, reported symptoms, and the medical evidence of record. As stated above, the Veteran was afforded a VA examination in July 2019. The examiner opined that it is less likely than not the Veteran's right rotator cuff tear, left cervical radiculopathy incurred from service-connected degenerative disc disease (DDD) L3-4, L4-5 as there is no orthopedic literature connecting these conditions to DDD of L3-4, L4-5. The examiner stated that the conditions are not a result of DDD of L3-4, L4-5. The examiner opined that it is at least as likely as not the left cervical radiculopathy is a result of DDD and cervical strain to include herniated disc. The examiner noted that herniated disc of cervical spine often causes numbness and pain in arms resulting from radiculopathy. The examiner expressed that DDD and repeated strain commonly cause compressed nerve roots leading to numbness and pain in arms resulting from radiculopathy. The Veteran was afforded a VA examination in December 2020. The examiner opined that it is 50 percent less likely that cervical DDD and degenerative joint disease (DJD) and left cervical radiculopathy incurred in service. The examiner noted that the records after service, from February 1998, document one visit for neck pain, however X-rays were negative. In addition, the examiner noted that in May 1997, the Veteran was seen for neck pain and diagnosed with stiffness. The examiner stated that treatment records document radiculopathy in 2010 which is 15 years after the Veteran exited service. Therefore, the examiner opined that it is less likely that cervical DDD, DJD, and left radiculopathy had its onset during active duty or within one year of separation, or is otherwise etiologically related to active-duty service. The examiner stated that it is 50 percent or greater probability that the Veteran's cervical radiculopathy is a result of cervical DDD and DJD as the Veteran has decreased muscle strength, reflexes, and sensation in the left upper extremity which is characteristic of radiculopathy. The examiner noted that DDD commonly causes compressed nerve roots leading to numbness and pain in arms resulting from radiculopathy. Based on the foregoing, the Board finds that the persuasive evidence is against a finding that the Veteran's bilateral upper extremities radiculopathy are causally related to the Veteran's service. Conversely, the VA examiner noted that the Veterans' radiculopathy was associated with his cervical spine. As the persuasive evidence is against a finding that the Veteran's radiculopathy is causally related to service, service connection for radiculopathy of the bilateral upper extremities is not warranted on a direct basis. 38 C.F.R. §§ 3.102, 3.303. While radiculopathy is not specifically considered to be chronic diseases for VA purposes, the Board notes that it may potentially be considered to be organic diseases of the nervous system. 38 C.F.R. § 3.309 (a). However, even assuming that radiculopathy is organic diseases of the nervous system, the Veteran was at no point diagnosed with radiculopathy of the bilateral upper extremities in service. Further, there is no evidence of manifestation to a compensable degree within one year of separation. Finally, the Board notes that radiculopathy of the bilateral upper extremities has been attributed to the Veteran's cervical spine disability. However, the Veteran is not service connected for his cervical spine. As such, secondary service connection is not warranted in this case. 38 C.F.R. § 3.310. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran's radiculopathy of the bilateral upper extremities is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.