Citation Nr: 22016646 Decision Date: 03/23/22 Archive Date: 03/22/22 DOCKET NO. 16-07 729 DATE: March 23, 2022 ORDER Entitlement to service connection for degenerative joint disease (DJD) of the cervical spine, to include as secondary to service-connected traumatic arthritis of the right shoulder is denied. Entitlement to service connection for bilateral neuropathy of the upper extremities is denied. FINDINGS OF FACT 1. A medical link or nexus between the Veteran's cervical spine disability and an in-service incurrence has not been established; the Veteran's current cervical spine DJD is not shown to have manifested within one year of separation from service; and continuous lumbar spine symptomology since service has not been established. The Veteran's cervical spine DJD has not been shown to be secondary to another service-connected disability. 2. A medical link or nexus between the Veteran's bilateral upper extremity neuropathy and an in-service incurrence has not been established; the Veteran's bilateral upper extremity neuropathy is not shown to have manifested within one year of separation from service; and continuous bilateral upper extremity neuropathy symptomology since service has not been established. The Veteran's bilateral upper extremity neuropathy has not been shown to be secondary to another service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for bilateral upper extremity neuropathy have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from August 1967 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims for development in April 2019, June 2020, March 2021, and November 2021. In December 2021, the Veteran was afforded a new VA opinion. After a Supplemental Statement of the Case (SSOC), the claims are back before the Board for adjudication. No other duty to notify or duty to assist issues have been raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability, with no causal relationship ("nexus") to an in-service event can be considered service-connected by being proximately due to or aggravated by a service-connected disease or injury. 38 § C.F.R. §3.310(a)-(b). To establish secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a link ("nexus") between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that a non-service-connected disability proximally caused by a service-connected disability is considered part of the original condition. See 38 § C.F.R. §3.310(a). A disability which is aggravated by a service-connected disease or injury, is compensated to the degree of the increase of severity. See 38 C.F.R. § 3.310(b); and see Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. See 38 U.S.C. § 5107(b). If there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter than the benefit-of-the-doubt rule applies, but the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *11 (Fed. Cir. Dec. 17, 2021). 1. Entitlement to service connection for DJD of the cervical spine is denied. The Veteran contends that his cervical spine DJD was incurred in his military service when he had a neck injury. The Veteran stated that he was hit by shrapnel in the face and neck. See VA 21-4138 received August 2011. In the alternative, he has asserted that his cervical spine DJD is secondary to his service-connected right shoulder disability. See NOD received June 2014. In this case, the Veteran has a current disability. He has imaging showing advanced degeneration in the cervical spine. See VA Exam received October 2010. The Veteran also has treatment consistent with cervical spine dysfunction including a cervical nerve root decompression surgery in January 2010. See medical Treatment Record- Government Facility received March 2011. Then in July 2015, the Veteran had a cervical spinal fusion. See Medical Treatment Record-Non-Government Facility received August 2020. While the Veteran has a current disability, the evidence does not prove that the Veteran's cervical spine disability incurred in service or that he had a continuity of symptoms following service. The Veteran's active duty service occurred in 1967 to 1969. However, the Veteran was not diagnosed with a cervical spine disability or treated for cervical spine disability until well after his active military service ended. For example, in October 2010, a VA examiner stated that the Veteran had no treatment for his cervical spine condition until around 2008. See VA Exam received October 2010. During the October 2010 VA examination, the Veteran reported that about two years prior he complained of neck pain and was treated with surgery in January 2010 at a VA hospital. Id. As such, the Board finds that the Veteran's cervical spine disability did not occur in service and was not shown by a continuity of symptoms. Next, the Board considered direct service-connection and secondary service connection. However, the evidence does not show a causal relationship ("nexus") between the Veteran's cervical spine disability and an in-service event, injury, or disease. The evidence also does not show a link between the Veteran's service-connected shoulder condition and his cervical spine DJD. In October 2010, the Veteran had a VA examination. See VA Exam received October 2010. The Veteran reported being hit in the face with a mine between the eyes while he was in Vietnam in 1968. He was seen at that time at a medical hospital and his treatment included facial suturing. He was not treated for spine or neck problems. He stated that two years before the October 2010 examination he complained about neck pain and was treated with surgery on his cervical spine in January 2010. The Veteran stated that his primary care provider told him that his cervical fusion was associated with his facial trauma and his shoulder trauma from during service. He reported stiffness, pain, and loss of range of motion to the neck. Id. The October 2010 examiner opined that the Veteran's cervical stenosis was less likely than not caused by or a result of the mine explosion that occurred during the Veteran's service in Vietnam. Id. The Veteran had another VA examination in October 2019. The examiner completed a Neck (cervical spine) Conditions Disability benefits Questionnaire (DBQ). See C&P Exam received December 2019. The examiner reported that the Veteran had a cervical strain as well as spinal fusion in 2010. The Veteran was also diagnosed with bilateral upper extremity radiculopathy in 2019. The Veteran stated that he had neck pain for many years and finally had his first spinal surgery in 2010. Later he had an anterior fusion. He had a total of two neck surgeries, and he continued to have chronic pain and loss of motion. In October 2019, the Veteran had an x-ray of his neck. The x-ray reported that the Veteran had extensive hardware present without acute findings. Id. The examiner in October 2019 also reported that the Veteran said he was injured in a car accident in 2005. The Veteran told the examiner that during a 2005 car accident his seat belt broke and the car radio flew out and hit him in the face. The examiner noted that he could not locate a hospital record for the 2005 car accident that the Veteran reported. The examiner also noted that the Veteran worked until 2009 as a machine operator and that he did a lot of hard, heavy work. The October 2019 examiner opined that the Veteran's cervical spine disability was less likely than not caused by the reported shrapnel injury during service. Id. Then in November 2020, the VA obtained another opinion. See C&P Exam received November 2020. The examiner reviewed the records. He opined that the claimed condition was less likely than not incurred in or caused by the claimed in service injury, event, or illness. The expert explained that the Veteran's separation examination did not report any spine condition and that the medical records during service were silent for a cervical spine condition. Additionally, the Veteran did not report any treatment for his spinal condition during service. The examiner found no objective evidence linking the Veteran's current cervical spine condition of DJD to the Veteran's time in the service. The examiner also found no objective medical evidence showing permanent aggravation of the current spinal conditions by the Veteran's right shoulder condition. Id. Then in July 2021, the Veteran had another VA examination. See C&P Exam received August 2021. The examiner opined that the Veteran's service-connected traumatic arthritis of the right shoulder was less likely than not caused or aggravated by the Veteran's cervical spine DJD. The examiner explained that degeneration of the cervical spine generally occurs because of age-related wear and tear on the spinal disc, health, and lifestyle factors, and possibly by genetic predisposition to joint pain or musculoskeletal disorders. The examiner explained that the Veteran's shoulder arthritis would not cause or aggravate the Veteran's cervical spine DJD. Id. Then one additional opinion was obtained in December 2021. See C&P Exam received in January 2022. The medical expert again found no basis for a link between the Veteran's neck condition and his service. The expert referred to the various previous opinions that have been provided in the claim. The examiner also found no basis for a link between the Veteran's neck condition and his service-connected shoulder condition. Id. The December 2021 VA medical expert explained that the Veteran's right shoulder condition was not responsible for causing, contributing, or aggravating the Veteran's severe cervical spine disease. The Veteran had severe spondylosis and stenosis in the spine, but the Veteran's right shoulder x-rays documented minor degenerative changes of the AC joint and some changes to the distal clavicle which could be post traumatic or post-surgical. The expert explained that major risk factors for stenosis is spondylosis and that the right shoulder condition was not going to cause the cervical spine discs to degenerate. The examiner suggested that the more minor degenerative changes that the Veteran had in his service-connected shoulder would be unlikely to cause the quite severe cervical DJD that the Veteran had in his neck. Id. Multiple opinions have been obtained by the VA to fully explore whether there is any direct or secondary connection to service of the Veteran's cervical spine condition, but none of these opinions have found any link either on a direct or secondary basis. While the Veteran has asserted that his cervical spine condition either occurred in service or was secondary to his service-connected shoulder condition, there are no opinions to support a link between the Veteran's cervical spine DJD and his service and there are no opinions to support a link between the Veteran's cervical spine DJD and his service-connected shoulder condition. The Board noted that the VA opinions were based on examinations and a thorough review of the Veteran's medical records, including the lay statements, and medical evidence submitted by the Veteran. The Board places significant weight on the collective findings of the VA examiners. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As to the lay statements, the Board considered that the Veteran reported that he had neck pain since service. As to this particular lay statement, the Board finds it less credible in light of the available medical evidence and considering the long time the Veteran had from service until he began treatment for his neck condition. The Board also noted that the Veteran worked for many years after service and before he began treatment for neck pain at a job he described as heavy, and hard. See CAPRI received February 2016. Specifically, when the Veteran was asked about his occupation, he reported that he worked until 2009, which is one year before his neck surgery, and that he had worked as a machine operator for thirteen years, and then at Western Auto. He reported that he did a lot of hard, heavy work. Id. The Board also considered the Veteran's assertions that there was a link between his neck condition and his service-connected shoulder condition. Although the Veteran is competent to report his symptoms, he does not possess the medical expertise required to provide a competent opinion concerning the etiology of his neck disability. The Board also noted that the Veteran only provided very generalized statements that he felt his neck pain was related to his shoulder condition. So, while the Veteran may feel there is a connection between his neck condition and shoulder condition, the medical evidence does not support any connection. After a thorough review of the records, the Board finds that the evidence weighs against the Veteran's claim that his cervical spine disability DJD is either directly connected to service, or secondarily connected to a service-connected disability. No other duty to notify or duty to assist issues have been raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, the Veteran has a duty to assist and cooperate with VA in developing evidence the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for cervical spine DJD is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral neuropathy of the upper extremities is denied. The Veteran contends that his upper extremities bilateral neuropathy should be service connected. For many of the same reasons as discussed above to the neck, there is no basis to find that the Veteran's bilateral upper extremity neuropathy began in service. There is also no basis for the condition being directly linked to the Veteran's active duty service. Moreover, as discussed above, the Board does not find that the Veteran's cervical spine condition is either directly linked to service or secondarily linked to a service-connected condition, and therefore, the Veteran's upper extremity neuropathy cannot be linked to service through the Veteran's neck DJD. Since the Veteran's cervical spine condition is not service connected, the main issue before the Board is whether the Veteran's upper extremity neuropathy was secondary to his service-connected shoulder condition. The Veteran has been diagnosed with upper extremity radiculopathy and he is service connected for traumatic arthritis of the right shoulder. However, the Board does not find a link between the Veteran's upper extremity neuropathy and his service-connected traumatic arthritis of the right shoulder. For example, in August 2021, the VA examiner opined that the Veteran's bilateral upper extremity radiculopathy was less likely as not related to the in-service injury. The examiner stated that the bilateral upper extremity radiculopathy was more likely related to the Veteran's cervical spine degenerative arthritis. See C&P Exam received August 2021. Then in December 2021, a VA expert stated that the Veteran's bilateral upper extremity radiculopathy was a symptom of the Veteran's cervical spine, and not the shoulder. The expert referred to the Veteran's neurosurgical treatment which reported an improvement in the Veteran's upper extremity pain and an improvement in the Veteran's upper extremity strength after the Veteran's first neck surgery. See C&P Examination received January 2022. After a thorough review of the records, the Board finds that the evidence weighs against the Veteran's claim that his bilateral upper extremity neuropathy is either directly connected to service, or secondarily connected to a service-connected disability. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for bilateral upper extremity neuropathy is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.