CERVICAL SPINE LIMITATION OF MOTION

DAVID H. ROBERTSON · 2026 · Case ID: A26028165

DENIED

Summary

The Veteran, who served from November 1984 to December 1994, sought readjudication of claims for service connection for a cervical spine disability, right arm neuropathy (claimed as secondary to the cervical spine), and a right hip disability. The Board reviewed the case based on evidence submitted after the July 2020 rating decision, including the Veteran's testimony from a May 2024 hearing and private treatment records. For the cervical spine disability, the Board found no probative evidence linking it to service, noting the absence of a medical opinion supporting a nexus and that the Veteran's testimony did not establish an in-service event. The Veteran's claim for right arm neuropathy, secondary to the cervical spine, was denied because service connection for the cervical spine was not established, and no alternative theory for entitlement was presented. Regarding the right hip disability, the Board found no competent evidence of a current disability, as the Veteran's testimony of pain did not demonstrate functional impairment of earning capacity. Consequently, service connection for all three conditions was denied.

Rationale

No probative evidence of in-service event or injury; No medical opinion supporting nexus; Veteran's testimony did not establish in-service event; Evidence weighs against service connection

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200827-106539

Full Decision Text

Citation Nr: A26028165
Decision Date: 03/27/26 Archive Date: 03/27/26

DOCKET NO. 200827-106539
DATE: March 27, 2026

ORDER

New and relevant evidence having been received, the petition to readjudicate the previously denied claim for entitlement to service connection for a cervical spine disability is granted.

New and relevant evidence having been received, the petition to readjudicate the previously denied claim for entitlement to service connection for right arm neuropathy is granted.

New and relevant evidence having been received, the petition to readjudicate the previously denied claim for entitlement to service connection for a right hip disability is granted.

Entitlement to service connection for a cervical spine disability is denied.

Entitlement to service connection for right upper extremity neuropathy, claimed as secondary to a cervical spine disability, is denied.

Entitlement to service connection for a right hip disability is denied.

FINDINGS OF FACT

1. New evidence was received after the June 2020 rating decision that is relevant to the issue of entitlement to service connection for a cervical spine disability, as it tends to prove or disprove a matter at issue.

2. New evidence was received after the June 2020 rating decision that is relevant to the issue of entitlement to service connection for right arm neuropathy, as it tends to prove or disprove a matter at issue.

3. New evidence was received after the June 2020 rating decision that is relevant to the issue of entitlement to service connection for a right hip disability, as it tends to prove or disprove a matter at issue.

4. The most probative evidence of record does not show that the Veteran's cervical spine disability was related to any injury, disease, or event incurred in service.

5. The Veteran's right upper extremity neuropathy is not related to a service-connected disability and is not otherwise related to an in-service injury or disease.

6. At no time during the pendency of the claim does the Veteran have a right hip disability; there is no evidence of pain productive of functional impairment of earning capacity.

CONCLUSIONS OF LAW

1. New and relevant evidence has been received for readjudication of the service connection claim for a cervical spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501.

2. New and relevant evidence has been received for readjudication of the service connection claim for right arm neuropathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501.

3. New and relevant evidence has been received for readjudication of the service connection claim for a right hip disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501.

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

5. The criteria for service connection for right upper extremity neuropathy, claimed as secondary to a cervical spine disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310.

6. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1984 to December 1994.

The rating decision on appeal was issued in July 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In July 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for a cervical spine disability, entitlement to service connection for right upper extremity neuropathy, and entitlement to service connection for a right hip disability most recently addressed in a June 2020 rating decision. In July 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window.

In the August 27, 2020, VA Form 10182, Decision
: Supplemental Claim, and requested readjudication of entitlement to service connection for a cervical spine disability, entitlement to service connection for right upper extremity neuropathy, and entitlement to service connection for a right hip disability most recently addressed in a June 2020 rating decision. In July 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window.

In the August 27, 2020, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on May 1, 2024.

Therefore, the Board may only consider the evidence of record at the time of the July 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

New and Relevant Evidence

Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). Under the AMA, "if new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record." 38 U.S.C. § 5108(a); 38 C.F.R. §§ 3.156, 3.2501. New evidence is defined as "evidence not previously part of the actual record before agency adjudicators." 38 C.F.R. § 3.2501(a)(1). Relevant evidence is defined as "evidence that tends to prove or disprove a matter in issue" and includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1).

Whether new and relevant evidence has been received to warrant readjudication of the claim for service connection for a cervical spine disability

Whether new and relevant evidence has been received to warrant readjudication of the claim for service connection for right arm neuropathy

Whether new and relevant evidence has been received to warrant readjudication of the claim for service connection for a right hip disability

The AOJ initially denied the Veteran's claims for service connection for a cervical spine disability, service connection for right arm neuropathy, and service connection for a right hip disability in a June 2020 rating decision. That decision stated that the evidence did not show an event, disease, or injury in service for the diagnosed cervical spine disability and right arm neuropathy. With regard to the right hip disability, the decision stated that the medical evidence of record failed to show that a disability had been clinically diagnosed.

Since that rating decision, the Veteran testified at a May 2024 Board hearing to the in-service onset of his cervical spine disability and how it led to his right arm neuropathy. He also testified to current right hip pain caused by service.

This evidence is both new, because it was not of record at the time of the last final denials, and relevant, because it tends to prove or disprove a matter at issue, namely whether the Veteran's claimed cervical spine and right upper extremity disabilities are related to military service, and whether the Veteran has a current diagnosis of a right hip disability. Accordingly, the Board concludes that readjudication of these claims is warranted. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.250
in-service onset of his cervical spine disability and how it led to his right arm neuropathy. He also testified to current right hip pain caused by service.

Service Connection

Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis for a disability which is due to, or the result of, a service-connected disease or injury, or which has been aggravated beyond its natural progression by the same. 38 C.F.R. §3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists; and (2) the current disability was either (a) caused or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, No. 2022-1239 (Fed. Cir. March 8, 2023) (invalidating the requirement of "proximate cause" and instead holding that a "but for" causation or aggravation is enough to show entitlement to secondary service connection).

In rendering this decision, the Board has reviewed all evidence of record whether discussed in detail. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). To the extent the evidence is found in "approximate balance," the Board will afford the benefit of the doubt in favor of the Veteran. Lynch v. McDonough, 21 F. 4th 776 (Fed, Cir. 2021) (holding that exact equipoise is not required for the benefit of the doubt to be applied, but rather the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal").

Entitlement to service connection for a cervical spine disability

The Veteran submitted his Fully Developed Claim, VA Form 21-526EZ, in June 2020 for entitlement to service connection for a cervical spine disability but did not explain how the disability related to an in-service event.

The June 2020 rating decision made a favorable finding that VA treatment records confirm current complaints of neck pain; thus, he has been diagnosed with a disability. Favorable findings made by the AOJ are binding on the Board unless rebutted by evidence of clear and unmistakable error. 38 C.F.R. § 3.104(c).

At the May 2024 Board hearing, the Veteran testified that he worked as a pickup and delivery driving during service, supplying logistics. He did not attribute any in-service pain to an injury; rather, "I thought it was soreness or I pulled a muscle." He recounted frequently carrying 100 pound oxygen cylinders on his shoulder and moving furniture during service. He also spent a lot of time counting inventory and reaching overhead while working in a warehouse. He had two discs in his neck that had fused together, but he was unaware prior to a surgery due to pain in his arm; "as a general rule, I don't really go to the doctor much."

In May 2024, during an applicable evidentiary window, the Veteran submitted private treatment records showing C5-6 and C6-7 degenerative disc disease with associated osteophytic neural foraminal narrowing and some straightening of the lower cervical physiologic lordosis.

While the Veteran is competent to describe what he has personally observed or experienced, the ultimate question of etiology extends beyond an immediately observable
service. He also spent a lot of time counting inventory and reaching overhead while working in a warehouse. He had two discs in his neck that had fused together, but he was unaware prior to a surgery due to pain in his arm; "as a general rule, I don't really go to the doctor much."

While the Veteran is competent to describe what he has personally observed or experienced, the ultimate question of etiology extends beyond an immediately observable cause-and-effect relationship and is beyond the competence of lay witnesses. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The Board acknowledges VA has not provided the Veteran with a VA examination for his cervical spine disability. However, VA examinations are not warranted in this case. The Secretary has a duty to assist a veteran by providing a VA medical examination only when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury or disease occurred in service, or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). These elements are conjunctive and therefore all must be present, but the requirements to secure a VA examination are a low bar.

However, under the AMA, only pre-decisional duty to assist errors, including those related to VA examinations, are eligible for remand. Thus, the Board is prohibited from considering evidence obtained after the July 2020 rating decision on appeal to determine whether a remand is warranted.

Although McLendon sets a low threshold, it has not been met here. Id. There is evidence of a current cervical spine disability but, prior to the rating decision on appeal, there is no evidence other than a general assertion that the disability occurred in service. Moreover, there is no indication that the disability or persistent symptoms associated with the disability may be associated with the Veteran's service, as no medical professional has made findings on this point. The Veteran himself has not addressed it, and the Veteran's representative did not submit any brief filings that address these matters prior to the rating decision on appeal or within an applicable evidentiary window.

There is simply no probative evidence suggesting a relationship between the Veteran's active duty and his claimed cervical spine disability. A mere conclusory and generalized statement that a service event or illness caused the claimant's current condition would be insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010).

As such, the Board finds there is no approximate balance of the evidence to support the claim. As the evidence of record weighs decidedly and persuasively against entitlement to service connection for a cervical spine disability, the benefit-of-the-doubt rule does not apply. The appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, 21 F.4th 776 (Fed. Cir. 2021).

Entitlement to service connection for right upper extremity neuropathy, claimed as secondary to a cervical spine disability

The Veteran submitted his Fully Developed Claim, VA Form 21-526EZ, in June 2020 for entitlement to service connection for right upper extremity neuropathy and stated that it was secondary to his cervical spine disability.

The June 2020 rating decision made a favorable finding that VA treatment records confirm current complaints of arm pain; thus, he has been diagnosed with a disability. Favorable findings made by the AOJ are binding on the Board unless rebutted by evidence of clear and unmistakable error. 38 C.F.R. § 3.104(c).

At the May 2024 Board hearing, the Veteran testified that he experienced constant tingling in the right arm and hand following service but no numbness. His doctors informed him that it was due to his cervical spine disability and the Veteran elected to have surgery in November 2023
connection for right upper extremity neuropathy and stated that it was secondary to his cervical spine disability.

At the May 2024 Board hearing, the Veteran testified that he experienced constant tingling in the right arm and hand following service but no numbness. His doctors informed him that it was due to his cervical spine disability and the Veteran elected to have surgery in November 2023. He also described a frequent pain in the first two fingers of his right hand "that felt like it'd be[en] hit with a hammer."

Although a Veteran is competent to describe what he has personally observed or experienced, the ultimate question of etiology extends beyond an immediately observable cause-and-effect relationship and is beyond the competence of lay witnesses. Kahana, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d 1372 (Fed. Cir. 2007).

While the Veteran has a current diagnosis of a right upper extremity neuropathy disability, there is no credible evidence of an in-service event or injury sufficient to support a grant of service connection. In this regard, the Board notes the Veteran claims his right upper extremity neuropathy is related to his cervical spine disability, but service connection for a cervical spine disability has been denied in the instant decision. Furthermore, the Veteran has not asserted an alternative theory for entitlement to service connection for a right upper extremity neuropathy.

The Board acknowledges VA has not provided the Veteran with a VA examination for his right upper extremity neuropathy. Although McLendon sets a low threshold, it has not been met here. 20 Vet. App. 79, 81 (2006). After carefully considering the evidence of record, the Board finds that such an opinion is not necessary to decide the Veteran's claim. As previously discussed, there is no credible evidence of a relationship to a service-connected disability, nor is there credible evidence that the Veteran experienced an in-service event, injury or disease. Absent such evidence, a medical opinion is not required.

As such, the Board finds there is no approximate balance of the evidence to support the claim. As the evidence of record weighs decidedly and persuasively against entitlement to service connection for a right upper extremity radiculopathy, the benefit-of-the-doubt rule does not apply. The appeal is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch, 21 F.4th 776 (Fed. Cir. 2021).

Entitlement to service connection for a right hip disability

The Veteran submitted his Fully Developed Claim, VA Form 21-526EZ, in June 2020 for entitlement to service connection for a right hip disability but did not explain how the disability related to an in-service event.

The June 2020 rating decision did not make any favorable findings with regard to the Veteran's right hip disability claim.

At the May 2024 Board hearing, the Veteran testified that he lifted equipment and supplies by hand. As a result of loading trucks, he developed soreness in his hip during service.

There is no evidence of record that suggests that the Veteran's pain symptoms were sufficient to cause any resulting disability or functional impairment. See Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018) (indicating that the term "disability" refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). Here, the Veteran has credibly testified to right hip pain but there are no assertions as to any functional impairment caused by such pain. Thus, the evidence weighs against a finding that the Veteran's pain causes any such impairment sufficient to be considered a disability under Saunders. In the absence of proof of a present disability there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Board acknowledges VA has not provided the Veteran with a VA examination for his right hip disability. However, in this case, there is no competent evidence of a present disability. Therefore, the Board finds that no VA examination or medical opinion is warranted; no meaningful inquiry can be made. See
the evidence weighs against a finding that the Veteran's pain causes any such impairment sufficient to be considered a disability under Saunders. In the absence of proof of a present disability there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

As the record does not reflect a current disability related to the right hip, the cornerstone element of service connection has not been met, and service connection is not warranted. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer, 3 Vet. App. 223, 225 (1992). No further discussion of the remaining elements is necessary. The Board acknowledges the Court's holding in Saunders but does not find a basis for determining that there is functional impairment related to any subjective right hip pain. See Saunders, 886 F.3d. 1356 (2018). Moreover, the Veteran did not allege manifestations of similar severity, frequency and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. See Wait v. Wilkie, 33 Vet. App. 8 (2020).

In summary, the evidence fails to establish that the Veteran has a disability related to the right hip. In the absence of the claimed disability, service connection may not be granted. See Brammer, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin, 155 F.3d 1353 (Fed. Cir. 1998). The appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, 21 F. 4th 776 (Fed, Cir. 2021).

David Robertson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Daniels, 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.

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