Citation Nr: 22014050 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-01 177 DATE: March 11, 2022 ORDER Service connection for a cervical spine disability is granted. Service connection for right upper extremity cervical radiculopathy secondary to the cervical spine disability is granted. Service connection for left upper extremity cervical radiculopathy secondary to the cervical spine disability is granted. FINDINGS OF FACT 1. The Veteran has current diagnoses of cervical spine stenosis, intervertebral disc syndrome (IVDS), and related bilateral upper extremity cervical radiculopathy. 2. The Veteran was involved in a motor vehicle accident (MVA) in November 1961 during service. 3. The cervical spine disability is etiologically related to the November 1961 MVA during service. 4. The right and left upper extremity cervical radiculopathy were caused by the cervical spine disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for right upper extremity cervical radiculopathy have been met. 38 U.S.C. §§ 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for left upper extremity cervical radiculopathy have been met. 38 U.S.C. §§ 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from August 1958 to July 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision from the Regional Office (RO), which, denied service connection for cervical spine stenosis and right and left upper extremity cervical radiculopathy. In April 2019, the Veteran testified at a Board videoconference hearing from the RO in Portland, Oregon, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. The issues were previously before the Board in February 2020, at which time the Board denied service connection for a cervical spine disability and bilateral upper extremity cervical radiculopathy. The Veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2021 Joint Motion for Remand (JMR), the parties agreed that a remand was warranted. The Board finds that the duties to notify and assist in this case have been rendered moot by the grant of service connection for a cervical spine disability and bilateral upper extremity cervical radiculopathy, which is a full grant of the benefits sought on appeal. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. In addition to direct service connection (discussed above), service connection may also be established 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). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(c). 1. Service Connection for a Cervical Spine Disability 2. Service Connection for Right Upper Extremity Cervical Radiculopathy 3. Service Connection for Light Upper Extremity Cervical Radiculopathy The Veteran contends that service connection for a cervical spine disability and cervical radiculopathy of the bilateral upper extremities is warranted. The Veteran asserts that he was involved in a MVA in November 1961 during service, during which he was a passenger in a vehicle that went over and 40-foot embankment and struck the ground. The Veteran wrote and testified that seat belts were not available at that time, so he slammed into the steel dashboard due to the impact, that he was treated overnight at the hospital and had soreness in the head, neck, and shoulders and dull pain generally, which he expected due to the impact of the car wreck. The Veteran asserts that, following the accident, he continued to have pain in the neck that radiated down the arms with certain movements of the neck, that he self-treated his symptoms with aspirin during service and continued to have neck pain and pain and weakness in the upper extremities after service separation, and that he managed these symptoms with intermittent private chiropractic and acupuncture treatment, hot and cold packs, and medications in the ensuing years after service, but the frequency of his private treatment was limited due to a lack of medical insurance. Nevertheless, the continuous symptoms progressed to the point that he had to seek medical treatment for persistent symptoms in the neck and the upper extremities in 2014. The Veteran testified that symptoms of pain in the neck and bilateral upper extremities have been continuous since the November 1961 MVA. See April 2019 Board Hearing Transcript, see also November 2021 correspondence. Initially, the evidence shows current diagnoses of cervical spine stenosis with IVDS and cervical radiculopathy of the upper extremities. See July 2015 private treatment record, September 2015 VA treatment records, and December 2016 VA examination report. The service treatment records show that that the Veteran was a passenger in a MVA in November 1961, during which the vehicle went over a 40-foot embankment before striking the ground. Initial examination revealed a jagged laceration above the right eyebrow extending down to the bone, abrasions to the left knee, and a fracture to the nose confirmed by x-ray. Post-service treatment notes show diagnoses of severe cervical spine stenosis and cervical radiculopathy of the upper extremities. During treatment encounters the Veteran reported that his neck pain had been present intermittently since the MVA in his 20s. See July 2015 private treatment record, September 2015 VA treatment record. The Board finds the evidence of record is at least in equipoise as to the question of whether the cervical spine disability is etiologically related to the November 1961 MVA during service, that is, was incurred in or caused by service. A VA examination and medical opinion was provided in December 2016. The VA examiner opined that it is less likely than not that the cervical spine disability was related to the service, including the November 2011 MVA in service. The examiner reasoned that the service treatment records do not show the Veteran complaining of neck pain following the MVA, and there were no findings regarding the same on examination or x-ray following the MVA, so his underlying cervical stenosis was less likely than not affected by the MVA; however, the VA opinion is of little probative value as it does not address competent lay reports of an onset of symptoms in the neck during service following the MVA, which have remained chronic and continuous over the years. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis, but cannot reject the opinion solely because the history was from the veteran); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Dr. Ching, the Veteran's treating physician, provided statements in May 2016 and May 2019, in which he opined that the Veteran's cervical spine stenosis is more likely than not related to the MVA in 1961. Dr. Ching explained that the Veteran has had neck trouble since the 1961 car accident in service, and has had no additional trauma since the accident. Moreover, although spinal stenosis can occur from normal wear and tear, it can also be exacerbated by a head on collision; therefore, in light of the onset of neck pain shortly after the car accident per the Veteran's lay reports, with no intervening trauma, the cervical degeneration is likely the result of the 1961 car accident. In an October 2016 letter, Dr. Lee noted that he has treated the Veteran for chronic neck pain and pain and weakness in the upper extremities. Dr. Lee noted the history of MVA in 1961, as well as initial examination revealing a fractured nose, laceration of the right eyebrow, and left knee sprain. However, Dr. Lee noted that the Veteran soon thereafter developed neck pain, for which he sought chiropractic and acupuncture care in the years to follow. Dr. Lee opined that the Veteran's cervical spine disability is more than 50 percent likely caused by injuries sustained in the November 1961 MVA during service. In a January 2022 letter, Dr. Cook noted that he reviewed the entire claims file, to include service treatment records, post-service treatment records, the December 2016 VA examination report, hearing transcript, lay statements from Veteran and his wife, in addition to conducting a telephonic interview with the Veteran. Dr. Cooke noted that the service treatment records show no evidence of a cervical spine or upper extremity disorder on the June 1958 enlistment examination report; however, service treatment records indicate that the Veteran was a passenger in a MVA, during which the vehicle he was in drove off a 40-foot embankment striking the ground head on. Initial evaluation showed a deep laceration above his eyebrow that that extended down his skull, as well as a nose fracture diagnosed via x-ray. Additionally, the Veteran recalled pain throughout his body acutely, and continuing pain in his neck and arms, worse on the left. Dr. Cooke diagnosed posttraumatic cervical spinal stenosis (primary) and posttraumatic bilateral upper extremity radiculopathy (secondary). Additionally, Dr. Cooke opined that it is more likely than not that the Veteran suffered a cervical spine injury at the time of the 1961 MVA. In support of this opinion, Dr. Cooke explained that acute facial injuries and head injury is documented on November 11, 1961, and the Veteran reports continuing symptoms of neck pain and paresthesias of both arms with weakness. Per review of medical literature, trauma occurring above the clavicle should raise high suspicion for a potential cervical spine injury, and head injured patients sustaining MVA-related trauma are at highest risk for concomitant cervical spine injury. Moreover, Dr. Cook explained that cervical spine stenosis can be caused by traumatic injury to the spine, and many patients with cervical spine stenosis have a history of neck injury or trauma. Given the reports of chronic symptoms of a cervical spine condition beginning directly after the MVA and continuous symptoms since service per lay statements, Dr. Cooke concluded that it is at least as likely as not that the cervical spine stenosis and upper extremity radiculopathy was caused by the 1961 MVA in service. The Board finds Dr. Cooke's opinion to be highly probative, as it is based on a review of the full record and accurate historical facts. Moreover, Dr. Cooke provided a thorough explanation as to why the Veteran's lay reports in addition to treatment records and medical literature support a nexus between the cervical spine disability and the 1961 MVA during service. Based on the forgoing, the Board has resolved reasonable doubt in the Veteran's favor to find that the cervical spine disability is etiologically related to service; therefore, service connection for the cervical spine disability is warranted on a direct basis as due to the November 1961 MVA in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d). As service connection is being granted on a direct basis, other theories of service connection have been rendered moot, leaving no question of law or fact for the Board to decide. See 38 U.S.C. § 7104. (Continued on the next page) After reviewing all the evidence, both lay and medical, the Board finds that the evidence is in equipoise on the question of whether cervical radiculopathy of the bilateral upper extremities was caused by the cervical spine disability. The VA examiner in December 2016 opined that the Veteran's cervical radiculopathy is directly related to his cervical spine stenosis with degenerative changes. Dr. Cooke also noted that the bilateral upper extremity cervical radiculopathy is secondary to the primary disorder of cervical spine stenosis. Given the competent medical evidence of a causal relationship between the now service-connected cervical spine disability and the claimed cervical radiculopathy of the bilateral upper extremities, the Board resolves reasonable doubt in the Veteran's favor to find that cervical radiculopathy of the bilateral upper extremities was caused by the service-connected cervical spine disability. Based on the above, service connection for right and left upper extremity cervical radiculopathy as secondary to the service-connected cervical spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The grant of secondary service connection renders moots other theories of service connection. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, S. 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.