Citation Nr: 22019435 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 19-02 236 DATE: April 1, 2022 ORDER Service connection for cervical spine disability is denied. Service connection, to include on a secondary basis, for right upper extremity radiculopathy is denied. Service connection, to include on a secondary basis, for left upper extremity radiculopathy is denied. A disability rating higher than 10 percent for bilateral conjunctivitis with mild hypertensive retinopathy is denied. FINDINGS OF FACT 1. The Veteran's cervical spine disability did not originate in service, was not manifest within one year of service, and is not otherwise etiologically related to the Veteran's active service. 2. The Veteran's right upper extremity radiculopathy did not originate in service, was not manifest within one year of service, and is not otherwise etiologically related to the Veteran's active service or a service-connected disability. 3. The Veteran's left upper extremity radiculopathy did not originate in service, was not manifest within one year of service, and is not otherwise etiologically related to the Veteran's active service or a service-connected disability. 4. Throughout the period on appeal, the Veteran's bilateral eye disability is manifested by active conjunctivitis, but not by visual acuity of at least 20/70 in one eye and 20/50 in the other eye, nor is there evidence of a visual field defect, impairment of muscle function, or at least three incapacitating episodes that required treatment within a twelve-month period. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for right upper extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for left upper extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for a disability rating higher than 10 percent for bilateral allergic conjunctivitis with mild hypertensive retinopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.75-4.78, 4.79 Diagnostic Code 6018. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from July 1980 to May 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2015 and August 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in August 2020. In an August 2019 rating decision, the RO assigned a 10 percent rating for the Veteran's allergic conjunctivitis and retinopathy effective June 1, 2015. As the rating period regarding the Veteran's bilateral eye disability is not the maximum allowable, the issue remains on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). The Board's August 2020 remand directed the RO to obtain any outstanding VA and private treatment records and a complete copy of the May 2019 VA eye examination. The Board finds that there has been substantial compliance with its August 2020 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Additionally, secondary service connection may be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or aggravated beyond its natural progression, by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A permanent worsening is not required, as secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence." Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 1. Entitlement to service connection for cervical spine disability The Veteran seeks service connection for a cervical spine disability he contends is related to his active military service. There is no dispute that the Veteran has a current cervical spine disability, as evidenced by diagnoses of cervical spine intervertebral disc syndrome (IVDS) in the August 2018 VA examination report. The dispositive issue is whether this disability began during service or within one year thereafter or are otherwise related to service. The Veteran's service treatment records (STRs) show a January 1985 injury to the Veteran's back from lifting a heavy barrel, without mention of any neck problems. STRs also reflect a March 1986 visit with complaints of neck pain. Following the March 1986 report of neck pain, the Veteran's STRs are silent for any subsequent complaints or treatment for neck pain, including the Veteran's separation examination. Post-service, the first treatment for neck pain occurred in March 2018. Thereafter, VA treatments records reflect intermittent reports of neck pain. During the August 2018 VA examination, the examiner diagnosed the Veteran with cervical spine IVDS. The Veteran reported his neck pain began to worsen about three months prior to the examination. The examiner opined that it is less likely that the Veteran's current cervical spine disability is due to his active service, as his STRs note one instance of reported neck pain that was only acute in nature, and there is no evidence of chronicity in the record following the one report of neck pain in service up until 2018. Upon review of the relevant evidence, the Board determines that service connection for a cervical spine disability is not warranted. While the Veteran's STRs note a 1986 report of neck pain, subsequent records, to include the Veteran's separation examination, are silent for any further complaints of or treatment for a cervical spine disorder. Additionally, the evidence does not show a manifestation of a cervical spine disability within one year of the Veteran's separation from active service, as post-service treatment records during this timeframe are silent for complaints of or a diagnosis of cervical spine IVDS. Here, a gap of approximately 14 years exists in the Veteran's treatment records from the time of separation from service up until the Veteran's reports of and treatment for neck pain. This period without treatment for a cervical spine disability is evidence that there has not been a continuity of symptoms. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Thus, the Board concludes that the Veteran's cervical spine disability did not have its onset in active service or within one year thereafter. Further, there is no medical or other competent evidence of a nexus between the Veteran's cervical spine disability and service. The August 2018 VA examiner diagnosed the Veteran with cervical spine IVDS and opined that it is less likely than not that this disability was caused by or a result of military service. The VA examiner indicated that, while the Veteran's STRs note March 1986 treatment for neck pain, no further follow-up for neck treatment is noted from 1986 forward in the Veteran's STRs, to include his separation examination. The examiner concluded that this documentation in the Veteran's STRs of acute neck pain is unrelated his current diagnosis of cervical spine IVDS. Thus, the Board concludes that the Veteran's cervical spine disability is not related to active service. The Board finds the August 2018 VA medical opinion to be probative, as it includes the most thorough and factually supported opinions of record, given they are consistent with other evidence of record and included review of the Veteran's claims file. The VA examiner determined that there was no nexus between the Veteran's cervical spine disability and his military service. The VA examiner has training, knowledge, and expertise on which she relied on to form her opinions, and she provided a persuasive rationale for them. The Board considered the Veteran's statements that his neck pain began during service and has continued since separation from service. The Veteran is competent to report neck pain and its onset. However, the Board finds the VA post-service treatment records to be more probative. The Veteran's claims file contains treatment records dating back to 2004, with no treatment of neck pain noted until March 2018. The Board finds that neck pain would ordinarily be reported and recorded during treatment visits where the Veteran was reporting and describing his body pain, and post-service treatment records prior to 2018 are silent for these reports. Therefore, the Board finds those contemporaneous treatment records to be more probative than the Veteran's more recent statements that he has experienced neck pain since service. The Board acknowledges the Veteran's contention that his current cervical spine disability is related to service, to include a 1985 injury to his back from lifting a heavy barrel. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). While the Veteran is competent to report observable symptoms, he is not competent to diagnose or determine the etiology of cervical spine IVDS, as that requires medical testing and expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran's statements as to the etiology of his cervical spine disability are not sufficient to satisfy the requisite nexus requirement. In conclusion, absent medical or other competent evidence of a nexus between the Veteran's cervical spine disability and service, the Veteran's claim for service connection must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection, to include on a secondary basis, for right upper extremity radiculopathy 3. Entitlement to service connection, to include on a secondary basis, for left upper extremity radiculopathy The Veteran seeks service connection for right and left upper extremity radiculopathy he contends is related to his active military service. Alternatively, the Veteran contends that his claimed upper extremity radiculopathy is caused or aggravated by his cervical spine disability. There is no dispute that the Veteran has a current disability, as evidenced by diagnoses of bilateral radiculopathy of the upper extremities in the August 2018 VA examination report. The dispositive issue is whether these disabilities began during service or within one year thereafter or are otherwise related to service. The Veteran's STRs show a January 1985 injury to the Veteran's back from lifting a heavy barrel, without mention of any upper extremity nerve problems. Following the January 1985 injury, the Veteran's STRs are silent for any complaints or treatment for upper extremity nerve pain, including the Veteran's separation examination. Post-service, the first treatment for upper extremity radicular pain in April 2018. Thereafter, VA treatments records reflect intermittent reports upper extremity radicular pain. During the August 2018 VA examination, the examiner diagnosed the Veteran with mild bilateral radiculopathy of the upper C5/C6 nerve roots. The Veteran reported experiencing radiculopathy in his arms. The examiner linked the Veteran's bilateral upper extremity radiculopathy to his cervical spine disability. Upon review of the relevant evidence, the Board determines that service connection on a direct basis for right and left upper extremity radiculopathy is not warranted. While the Veteran's STRs note a 1985 injury to the Veteran's back after lifting a heavy barrel, these records are silent for any reports of bilateral upper extremity nerve pain, to include the Veteran's separation examination. Additionally, the evidence does not show a manifestation of bilateral upper extremity radiculopathy within one year of the Veteran's separation from active service, as post-service treatment records during this timeframe are silent for complaints of upper extremity radicular pain. Here, a gap of approximately 14 years exists in the Veteran's treatment records from the time of separation from service up until the Veteran's reports of and treatment for bilateral upper extremity radicular pain. This period without treatment for right and left upper extremity radiculopathy is evidence that there has not been a continuity of symptoms. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Thus, the Board concludes that the Veteran's right and left upper extremity radiculopathy did not have its onset in active service or within one year thereafter. Further, there is no medical or other competent evidence of a nexus between the Veteran's right and left upper extremity radiculopathy and service. The August 2018 VA examiner diagnosed the Veteran with right and left upper extremity radiculopathy and did not find that these disabilities are related to the Veteran's active service. On the contrary, the examiner indicated that the Veteran's bilateral upper extremity radiculopathy are caused by his cervical spine disability. Here, the Veteran's cervical spine disability is not service-connected, therefore, service connection on a secondary basis is not applicable. Thus, the Board concludes that the Veteran's right and left upper extremity radiculopathy is not related to active service or a service-connected disability. The Board finds the August 2018 VA medical opinion to be probative, as it includes the most thorough and factually supported opinions of record, given they are consistent with other evidence of record and included review of the Veteran's claims file. The VA examiner determined that there was no nexus between the Veteran's right and left upper extremity radiculopathy and his military service. The VA examiner has training, knowledge, and expertise on which she relied on to form her opinions, and she provided a persuasive rationale for them. The Board considered the Veteran's statements that his right and left upper extremity radiculopathy began during service and has continued since separation from service. The Veteran is competent to report upper extremity radicular pain and its onset. However, the Board finds the VA post-service treatment records to be more probative. The Veteran's claims file contains treatment records dating back to 2004, with no treatment of bilateral upper extremity radicular pain noted until April 2018. The Board finds that upper extremity radicular pain would ordinarily be reported and recorded during treatment visits where the Veteran was reporting and describing his body pain, and post-service treatment records prior to 2018 are silent for these reports. Therefore, the Board finds those contemporaneous treatment records to be more probative than the Veteran's more recent statements that he has experienced bilateral upper extremity radicular pain since service. The Board acknowledges the Veteran's contention that his current right and left upper extremity radiculopathy is related to service. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). While the Veteran is competent to report observable symptoms, he is not competent to diagnose or determine the etiology of upper extremity radiculopathy, as that requires medical testing and expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran's statements as to the etiology of his right and left upper extremity radiculopathy are not sufficient to satisfy the requisite nexus requirement. In conclusion, absent medical or other competent evidence of a nexus between the Veteran's right and left upper extremity radiculopathy and service or a service-connected disability, the Veteran's claim for service connection, to include on a secondary basis, must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Higher Initial Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity caused by a given disability. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, if different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Entitlement to a disability rating higher than 10 percent for bilateral allergic conjunctivitis with mild hypertensive retinopathy The Veteran seeks a higher disability rating for his service-connected bilateral allergic conjunctivitis with mild hypertensive retinopathy, which is currently rated as 10 percent disabling under Diagnostic Code 6018 (chronic conjunctivitis (nontrachomatous)). 38 C.F.R. § 4.79, Schedule of ratings - eye. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. As the amended regulations went into effect during the period on appeal, both the former and revised criteria under Diagnostic Code 6018 will be considered when evaluating the Veteran's bilateral allergic conjunctivitis. Under both the former and revised criteria, Diagnostic Code 6018 instructs to evaluate inactive conjunctivitis based on residuals, such as visual impairment and disfigurement (Diagnostic Code 7800). 38 C.F.R. § 4.79. Under the former criteria, for active conjunctivitis (with objective findings, such as red, thick conjunctivae, mucous secretion, etc.), a 10 percent rating is warranted. Id. Under the revised criteria, for active conjunctivitis, a minimum 10 percent rating is warranted, and further evaluation under the General Rating Formula for Diseases of the Eye may warrant a higher rating. Id. Under the revised criteria, the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or incapacitating episodes, whichever results in a higher evaluation. An incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes, such as systemic immunosuppressants or biologic agents, intravitreal or periocular injections, laser treatments, or other surgical interventions. 38 C.F.R. § 4.79 at Notes 1 and 2. Under the amended regulations, a 20 percent rating is warranted for evidence of documented incapacitating episodes requiring at least three but less than five treatments for an eye condition during the past twelve months. 38 C.F.R. § 4.79. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Under both the former and revised criteria for Diagnostic Code 6066, visual acuity, a 20 percent rating is warranted when visual acuity in one eye (the poorer eye) is 20/70, and vision in the other either is 20/50; when visual acuity in one eye (the poorer eye) is 20/100, and vision in the other eye is 20/50; when visual acuity in one eye (the poorer eye) is 20/200, and vision in the other eye is 20/40; or when visual acuity in one eye (the poorer eye) is 15/200, and vision in the other eye is 20/40. 38 C.F.R. § 4.79. Based on a review of the relevant evidence, the Board determines that a disability rating higher than 10 percent for bilateral allergic conjunctivitis with mild hypertensive retinopathy is not warranted. Specifically, the July 2015, December 2015, and May 2019 VA examinations, as well as post-service VA and private records, reflect active bilateral conjunctivitis, which warrants a 10 percent disability rating under the former rating criteria for Diagnostic Code 6018. As the revised rating criteria also assigns a minimum 10 percent rating for active conjunctivitis and instructs to evaluate under the General Rating Formula for Diseases of the Eye, the Board will consider whether a higher rating under the revised rating criteria is warranted. The 2015 and 2019 VA examinations reflect corrected distance measuring no more than 20/40 in the right eye and 20/40 in the left eye. Further, these examinations, along with post-service VA and private treatment records, are silent for evidence of visual acuity of at least 20/70 in one eye and 20/50 in the other eye, a visual field defect, impairment of muscle function, to include diplopia, or any incapacitating episodes requiring treatment within a twelve-month period for the Veteran's allergic conjunctivitis or his retinopathy. Here, the medical evidence of record reflects active bilateral conjunctivitis with corrected distance vision measuring no more than 20/40 in each eye, which equates to a noncompensable (zero percent) disability rating based on visual acuity. Therefore, the currently assigned 10 percent disability rating for bilateral allergic conjunctivitis with mild hypertensive retinopathy is appropriate and a higher rating is not warranted. In conclusion, the Veteran's claim for a disability rating higher than 10 percent for bilateral allergic conjunctivitis with mild hypertensive retinopathy is denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.