Citation Nr: 22012123 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 15-15 335 DATE: March 2, 2022 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for a bilateral foot disability, to include hallux valgus and plantar fasciitis, is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that a cervical spine disability began during active service or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that the Veteran has had bilateral peripheral neuropathy at any time during or approximate to the pendency of the claim. He has been diagnosed with bilateral radiculopathy with numbness and has been awarded service connection for that disability. 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 service connection for bilateral peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1974 until his honorable discharge in July 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision for his cervical spine and sinusitis disabilities and a September 2015 rating decision for his bilateral neuropathy and foot disabilities of the Regional Office of the Department of Veterans Affairs (VA). In April 2018, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. In August 2018, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain treatment records, private treatment releases, and a new VA examination for the cervical spine. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 the so-called "nexus" requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Entitlement to service connection for a cervical spine disability. The Veteran asserts that he developed a cervical spine disability due to parachute jumps in service. See April 2018 Hearing Transcript. In an August 2021 VA examination, he was diagnosed with degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (IVDS), and cervical radiculopathy of the left upper extremity. In an October 2019 VA examination, he was diagnosed with degenerative arthritis of the spine, cervical spondylosis and cervical radiculopathy at C5. As a result, he has met the first element of service connection. The Veteran's DD-214 states that he received a parachute badge. He stated in his hearing that he believes his cervical spine disability is a result of his jumps in service. He testified that he did 10 to 15 jumps a week, but only the required jump once every four months was recorded. There is evidence that he had back pain while in service. See Service Treatment Records. His service treatment records do reference and injury and treatment for a "back" disability in service, but this is in reference to a lumbar spine disability after the Veteran was hit in the back. There is no treatment note that specifically states that he injured his neck or cervical spine or that he received treatment for such. However, his assertions are consistent with the rigors of his service. Although there is no specific injury or reference specifically to the neck or cervical spine, the Board will afford the Veteran the benefit of the doubt and find that he has met the second element of service connection. Unfortunately, there is no probative evidence of a nexus or link between his current cervical spine disability and service. The October 2019 VA examiner found that there was no nexus between his cervical spine disability and service. His rationale stated that the disability was "mainly due to aging process and not related to [a] specific event." A new examination was obtained for a more detailed rationale. The August 2021 VA examiner also found that there was no nexus or link between his cervical spine disabilities and service. The examiner stated that "cervical degeneration and arthritis are aging processes; this degeneration can cause nerve compression resulting in radiculopathy." The examiner cited to a study that did "not implicate parachuting as a cause of intervertebral disc degeneration, either cervical or lumbar, nor as a cause of spondylolysis or spondylolisthesis." He went on to state, "Serious long-term disability from pain appears to be uncommon among parachutists despite the frequency of the spinal trauma they sustain." As a result, there is no nexus between his cervical spine disability and service and so the claim is denied. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that he developed bilateral peripheral neuropathy of the lower extremities. However, he has not been diagnosed with such a disability. An August 2015 VA examination found that he did not have peripheral neuropathy of the lower extremities. His lower extremity sciatic nerves were normal, and the examiner concluded that there was no clinical or objective evidence of lower extremity peripheral neuropathy. The Veteran has already been awarded service connection for left lower extremity radiculopathy and right lower extremity radiculopathy which was originally claimed as bilateral peripheral neuropathy. While he is competent to describe his symptoms, he does not have the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Therefore, the Veteran is not competent to provide an opinion on the etiology of his numbness and symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). Furthermore, the August 2021 cervical spine VA examination found that he had numbness due to radiculopathy. He has already been awarded service connection for radiculopathy and so another award due to neuropathy for the same symptoms would constitute impermissible pyramiding. As there is no current diagnosis of bilateral peripheral neuropathy his claim is denied. REASONS FOR REMAND 4. Entitlement to service connection for sinusitis. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when one is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Regional Office did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, has a presumptive disease during the pertinent presumptive period, or is service-connected for a disability that may have caused or aggravated the Veteran's disability; and (3) indicates that the claimed disability may be associated with the in-service event, injury, disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Veteran asserts that he developed sinusitis in service. His VA treatment and service treatment records reflect treatment for sinusitis. There is enough competent objective medical evidence of record to warrant a VA medical examination take place. As such, the claim is remanded for a VA examination. In the August 2018 Board remand, the Regional Office was instructed to ask the Veteran to complete a VA Form 21-4142 for any treatment provider who has provided medical care for a sinus disability, to include the provider referenced at the Board hearing. They did so in September 2019 and a response was not received. To the extent that information may have been gained to his benefit from his private treating physician for sinusitis, VA made sufficient efforts to obtain the release for private treatment records. The Board will request the Regional Office attempt to get a release again; however, the Veteran is reminded that the duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims. See Wood v. Derwinski, 1 Vet. App. 190 (1991). 5. Entitlement to service connection for a bilateral foot disability, to include hallux valgus and plantar fasciitis. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran asserts that he developed a bilateral foot disability due to parachute jumps he completed in service. See April 2018 Hearing Transcript. He stated that he did not have plantar fasciitis before 1975 and that his disability is related to a parachute malfunction where he was injured. Id. The August 2015 VA examination failed to provide an adequate rationale. The examiner provided a negative nexus with the following opinion: "Current bilateral hallux valgus and bilateral plantar fasciitis were diagnosed several years after service. Service treatment records is silent toward any feet condition." This opinion does not address the Veteran's assertions regarding parachute jumps, his service-connected knee disability, or his claims about how the disability is connected to service. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any treatment provider who has provided medical care for a sinus disability, to include the provider referenced at the Board hearing. 2. Schedule the Veteran for a new VA examination to determine the current nature and etiology of his sinusitis. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner is asked to: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sinusitis had its onset in service or was caused by, or otherwise related to, the Veteran's active service. 3. Schedule the Veteran for a new VA examination to determine the current nature and etiology of his bilateral foot disability, to include hallux valgus and plantar fasciitis. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner is asked to: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral foot disability, to include hallux valgus and plantar fasciitis, had its onset in service or was caused by, or otherwise related to, the Veteran's active service, to include parachute jumps. (Continued on the next page) (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral foot disability, to include hallux valgus and plantar fasciitis, has been caused by or aggravated (i.e., any increase in severity which worsened the disability beyond its natural progression) by the service-connected degenerative joint disease of the right and left knee? 4. After, readjudicate the Veteran's claim. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, Associate 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.