Citation Nr: 22013403 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-16 864 DATE: March 9, 2022 ORDER Entitlement to service connection for cervical spine radiculopathy, to include as secondary to service-connected cervical spine disability, is denied. FINDING OF FACT The Veteran has had neither cervical spine radiculopathy nor related symptoms causing impairment in earning capacity at any time during the appeal period or approximate thereto. CONCLUSION OF LAW The criteria for service connection for cervical spine radiculopathy have not been met. 38 U.S.C. §§ 1110, 5107 §§ 5107; C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1995 to May 1999, from January 2003 to October 2003, and from October 2011 to November 2012. This case initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record on appeal. In February 2019 and December 2020, the Board remanded the matter for further evidentiary development. The agency of original jurisdiction obtained a January 2021 opinion which, for the reasons discussed below, was adequate to decide the claim. Thus, there has been substantial compliance with the Board's December 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Radiculopathy Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that his radiculopathy is related to service. In an alternative theory, he contends that such disability is secondary to service-connected cervical spine disability. For the following reasons, the Board concludes that service connection for radiculopathy is not warranted. The Veteran's service treatment records (STRs) show the Veteran complained of numbness of hand, and pain radiating to his right thumb in October 2012. An April 2015 post-service treatment record shows that the Veteran exhibited right arm numbness and right arm tightness, especially with repetitive arm use. The Veteran was afforded a VA examination in October 2019 where the VA examiner did not render a diagnosis. The examiner opined that radiculopathy was less likely than not aggravated beyond its natural progression by service-connected cervical spine disability. The examiner explained that the earliest complaint of neck pain is March 4, 1996, STR's of mid cervical pain with a tingling sensation for two weeks while riding a motorcycle in Las Vegas. The Veteran was diagnosed with cervical strain. The examiner further explained that during the examination the Veteran stated that numbness lasts a minute when reaching down putting on shoes. The examiner noted that this could indicate circulation causing tingling in the arm, indicating neck strain recurrent with examination demonstrate loss of natural lordosis. The VA examiner also opined that radiculopathy is less likely than not proximately due to or the result of the Veteran's service-connected cervical spine disability. The examiner explained that examination demonstrated neck muscle spasm per palpation, tenderness at C7 spinal process - noted decrease flexion (frontal, lateral, and rotation) significant with flexion. The examiner furthered explained that based on history and examination, x-ray in 2014, and EMG done on June 16, 2015, this does not support a diagnosis of cervical condition with radiculopathy; however, does support cervicalgia and neck strain without radiculopathy. The examiner noted that the Veteran's right shoulder pain based on location of pain in bicipital groove suggest tendinitis, along with onset of pain with working overhead for long period time and appears to be a separate diagnosis. The examiner further noted the EMG on June 16, 2015, revealed a normal exam of the right upper extremity and cervical paraspinal muscles without electrodiagnostic evidence of peripheral neuropathy, plexopathy or radiculopathy correlates the findings. In January 2021, the Veteran underwent another VA examination where the VA examiner did not render a diagnosis. The examiner opined that radiculopathy was less likely than not related to service or any incident therein. The examiner explained that there is no evidence of right arm nerve damage as per current exam. The examiner also opined that there is not functional impairment to constitute a disability based on pain. The examiner explained that there is no evidence of functional impairment of right arm as per current neurological exam. The Board in its found in its December 2020 remand that the October 2019 VA examination was inadequate because the examiner did not address whether the radiculopathy or related symptoms were related to the in-service symptoms of numbness of hand and pain radiating to the right thumb. However, "even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"; "it may be given some weight based upon the amount of information and analysis it contains." Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). In this case, the two medical opinions reflect that the Veteran has not met the current disability with requirement to the claim for service connection for radiculopathy. In determining whether the current disability requirement has been met, the Board must consider the entire claim period and the period preceding it, Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim) and whether there have been symptoms causing impairment in earning capacity or a different but related disorder diagnosed during this period. Saunders, 886 F.3d at 1364-65 (pain alone can constitute disability under 38 U.S.C. § 1131); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). The two medical opinions reflect that the Veteran has not had a diagnosed disorder or symptoms causing impairment in earning capacity during the pendency of the claim or approximate thereto. The October 2019 VA examiner attributed pain in the shoulder area to a separate disorder and the January 2021 VA examiner found no functional impairment. The lay evidence does not reflect pain causing impairment in earning capacity due to that anatomical region at any time during the claim period or approximate thereto. The evidence thus persuasively weighs against a current disability with regard to this claim. Moreover, as the October 2019 and January 2021 VA examiners explained the reasons for their conclusions based on an accurate characterization of the evidence, their opinions are entitled to substantial probative weight, and there is no contrary medical opinion in the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board appreciates the thorough and thoughtful statements and contentions of the Veteran. While the Board must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government, 38 C.F.R. § 3.103(a), it is bound by the laws and regulations that apply to veterans' claims. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.105. For the above reasons, application of the law to the facts of this case reflects that the evidence is neither evenly balanced nor approximately so with regard to whether service connection for radiculopathy is warranted. Rather, the evidence persuasively weighs against service connection for radiculopathy. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102, is therefore not for application as to this claim. Lynch v. McDonough, 24 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.