CERVICAL NERVE PARALYSIS OR NEURITIS

Summary

The Veteran, who served from June 1979 to January 1999, appeals the denial of service connection for cervical radiculopathy and migraine headaches secondary to cervical radiculopathy. The Board reviewed the evidence, including a May 2019 VA examination, a July 1998 service treatment record, and two private medical opinions dated June 2019. The May 2019 VA examiner opined that the Veteran's cervical radiculopathy was less likely than not incurred in or caused by service, citing a lack of chronic neck complaints in service records and a 19-year gap between the initial neck pain diagnosis and the current cervical radiculopathy diagnosis. The private opinions suggested a possible or causal link, but the Board found them less probative due to insufficient medical history and lack of rationale, particularly noting the absence of objective MRI evidence and the assertion of continuous symptoms without supporting records. The Board gave more weight to the VA examiner's opinion and the contemporaneous service records, which showed no chronic neck issues at separation. The Board concluded the evidence did not establish a nexus to service for cervical radiculopathy. Consequently, the claim for migraine headaches secondary to cervical radiculopathy was also denied as a matter of law, as service connection for the primary condition was not established. Service connection for cervical radiculopathy is denied. Service connection for migraine headaches secondary to cervical radiculopathy is denied.

Rationale

Weight of evidence does not establish nexus; VA exam more probative than private opinions; Lack of chronic neck complaints in service records

Full Decision Text

Citation Nr: A20010365
Decision Date: 06/12/20	Archive Date: 06/12/20

DOCKET NO. 190709-57668
DATE: June 12, 2020

ORDER

Entitlement to service connection for cervical radiculopathy is denied.

Entitlement to service connection for migraine headaches as secondary to cervical radiculopathy is denied.

FINDINGS OF FACT

1. The most probative evidence of record fails to establish that the Veteran’s current cervical spine disability is etiologically related to his active duty service. 

2. Entitlement to service connection for migraine headaches as secondary to cervical radiculopathy is precluded as a matter of law.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

2. The criteria for entitlement to service connection for migraine headaches as secondary to cervical radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 1155; 38 C.F.R. §§ 3.301, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from June 1979 to January 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. § 3.303 (2018). A Veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

1. Entitlement to service connection for cervical radiculopathy

A diagnosis of cervical radiculopathy was confirmed at the May 2019 VA examination.  Thus, the current disability prong of a service connection claim has been satisfied.

The Veteran alleges that his current cervical radiculopathy is related to an injury he sustained during active duty service. A service treatment record shows that the Veteran was seen for neck pain in May 1996. The record notes right shoulder pain and intermittent neck pain that is aggravated by doing pull-ups. The Veteran was diagnosed with right shoulder impingement and trapezius neck pain. The Veteran was advised to ice massage the neck/trapezius, return to pushups and pullups in 6-8 weeks, and follow up with the doctor if needed. The record contains no follow up from the Veteran regarding his neck. During the separation exam, the Veteran himself mentions several health issues, including wearing a brace for back support, Scarlet fever, swollen or painful joints, shortness of breath, chronic cough, broken bones, arthritis or bursitis, painful shoulder or elbow, recurrent back pain, asbestos or chemical exposure, a childhood tonsillectomy, and fracture of L2 vertebrae. There is no mention of any chronic or recurring neck pain, head injury, or nerve injury. The physician commented on the exam that the Veteran had a compression fracture in 1993 and has chronic transient joint pain.

The only follow up is seen in July 1998 where the Veteran presented with acute onset of left lower extremity (LLE) radicular pain with gentle lifting. The examiner noted “100% LLE pain” with unremarkable x-ray other than the L2 fracture from 1993. The claims file does not contain any treatment records from 1999-2014, however a VA treatment record in December 2016 states the Veteran is under evaluation by a neurologist for cervical radiculopathy. 

A May 2019 VA examiner took a thorough history and conducted an in-person examination of the Veteran. The examiner opined that the Veteran’s cervical radiculopathy was less likely than not incurred in or caused by the complaints during service. The rationale was that the condition in 1996 was not documented as a cervical medical diagnosis and that the symptoms may have been the same, but
 examiner noted “100% LLE pain” with unremarkable x-ray other than the L2 fracture from 1993. The claims file does not contain any treatment records from 1999-2014, however a VA treatment record in December 2016 states the Veteran is under evaluation by a neurologist for cervical radiculopathy. 

A May 2019 VA examiner took a thorough history and conducted an in-person examination of the Veteran. The examiner opined that the Veteran’s cervical radiculopathy was less likely than not incurred in or caused by the complaints during service. The rationale was that the condition in 1996 was not documented as a cervical medical diagnosis and that the symptoms may have been the same, but it is not the same medical condition, as the cervical radiculopathy diagnosis came after a 19-year gap.

A private treatment note dated June 5, 2019 from physician’s assistant MC opined that “it is certainly possible that the neck issues from back in 1996 have progressed and have contributed to his current symptoms.” This opinion was based on a history reported from the Veteran and MRIs of the C-spine that the provider says shows degenerative changes that could contribute to his current symptoms.

A second private note, dated June 20, 2019 from Dr. JC opined that the Veteran’s condition is causally related to the injuries sustained in 1996. It was further stated “this has been an ongoing issue from now until then without remission.”

In weighing the three medical opinions, the Board affords the most probative value to the May 2019 medical opinion. Neither of the June 2019 opinions contains a complete discussion of the Veteran’s medical history nor do they contain an adequate rationale to support the conclusions rendered. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Some factors for consideration in weighing the probative value of diagnoses or opinions are the extent and accuracy of data and history relied upon, past treatment of the Veteran, the use of examination findings, the use of clinical, laboratory or radiological studies, a review of the claims file (which is not required of private physicians) or other clinical records, and a review of medical literature. Generally see Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

While one with medical expertise is not required to review all evidence in a VA claimant’s records, such opinions based solely upon a clinical history, and without review of past clinical records, are only as good as the medical history upon which they are based. A medical opinion predicated upon a history related by a Veteran may not be refuted or disregard solely on that basis, but this fact may be considered in determining the probative value of the statement. Kowalski v. Nicholson, 19 Vet. App. 171, 170 (2005). Diagnoses or opinions which are based on a history provided by a Veteran means that such conclusions “can be no better than the facts alleged by the appellant.” Swann v. Brown, 5 Vet. App. 229, 233 (1993); see also Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical “opinion based upon an inaccurate factual premise has no probative value”).

The provider mentioned MRIs of the C-spine without objective evidence such as the dates and results of the MRI examinations. Lastly, The June 5, 2019 provider simply stated that it is “certainly possible” that the neck issues progressed to the current state. This language does not meet the standard for service connection. The mere possibility, even if phrased as “quite possible” does not rise to the level that it was as likely as not that there was such a nexus.

The June 20, 2019, provider stated a conclusion that the condition is causally related, yet failed to support that conclusion. The probative value of a medical opinion comes from its reasoning, and a failure to provide a rationale for an opinion goes to its weight or credibility. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2004); Herandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The examiner stated the Veteran’s initial injury has been an ongoing issue without remission,
 a nexus.

The June 20, 2019, provider stated a conclusion that the condition is causally related, yet failed to support that conclusion. The probative value of a medical opinion comes from its reasoning, and a failure to provide a rationale for an opinion goes to its weight or credibility. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2004); Herandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The examiner stated the Veteran’s initial injury has been an ongoing issue without remission, but that assertion is not supported by the record. There are no complaints of the neck from the initial injury in 1996 until 2016.

The May 2019 examiner provided a thorough rationale supported by objective medical evidence which failed to establish a connection between a chronic cervical spine condition several years after the neck pain in 1996.

Moreover, the Board assigns more weight to the contemporaneous affirmative denials of neck pain in the June 1998 Report of Medical History over statements made approximately 20 years after. Notably, in the June 1998 Report of Medical History, completed by the Veteran at the expiration of his military service, noted he suffered from many different ailments, but made no mention of a cervical or neck problem.

In light of the above analysis, the weight of the evidence does not establish a nexus between the Veteran’s in-service neck complaint and the current cervical spine condition. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Therefore, the appeal must be denied.

2. Entitlement to service connection for migraine headaches as secondary to cervical radiculopathy

The Board notes that the Veteran contends that he has migraines secondary to his cervical radiculopathy.  There is no indication that the Veteran has associated his migraines directly with his service. 

Service connection may be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)).

To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Where, as here, service connection for the primary disability has been denied, secondary service connection is precluded as a matter of law. See 38 C.F.R. § 3.310(a), (b) (providing for service connection for a disability only where such disability is proximately due to, the result of, or aggravated by, a disease or injury that is already service connected); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

 

 

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. Nelson, 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.