DEGENERATIVE ARTHRITIS

K.A. KENNERLY · 2026 · Case ID: A26040494

MIXED

Summary

The veteran, who served in the United States Army from December 1990 to May 1991 and June 2004 to November 2005, including service in the Southwest Asia theater of operations during the Gulf War era, appeals the denial of service connection for a cervical spine disability and bilateral upper extremity radiculopathy. The veteran attributes his cervical spine issues and subsequent radiculopathy to injuries sustained in a vehicle crash during active duty for training in April 2010. The Board found the July 2023 VA examination to be highly probative, noting the examiner's favorable opinion linking the cervical spine disability and bilateral upper extremity radiculopathy to in-service injuries and subsequent degenerative changes. The Board granted service connection for the cervical spine disability, including degenerative arthritis, DDD, and IVDS, and for the left and right upper extremity radiculopathy as secondary to the service-connected cervical spine condition. The Board remanded claims for service connection for a skin disability, including actinic keratosis and SCC residuals, due to a duty to assist error in obtaining an adequate TERA opinion. The Board also remanded claims for left and right lower extremity radiculopathy, finding the AOJ erred by failing to obtain a VA examination to assess the claimed link to service or the service-connected TBI and lumbar strain.

Rationale

In-service neck injuries from vehicle crash on ADT; Chronic wear and tear from service; Favorable VA medical opinion linking to service

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250515-544296

Full Decision Text

Citation Nr: A26040494
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250515-544296
DATE: April 30, 2026

ORDER

Entitlement to service connection for a cervical spine disability, to include degenerative arthritis, degenerative disc disease (DDD), and intervertebral disc syndrome (IVDS), is granted.

Entitlement to service connection for left upper extremity radiculopathy, as secondary to a service-connected cervical spine disability, is granted.

Entitlement to service connection for right upper extremity radiculopathy, as secondary to a service-connected cervical spine disability, is granted.

REMANDED

Entitlement to service connection for a skin disability, to include actinic keratosis and residuals of squamous cell carcinoma (SCC), is remanded.

Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to the service-connected disabilities of traumatic brain injury (TBI) and lumbar strain with degenerative arthritis, is remanded.

Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to the service-connected disabilities of TBI and lumbar strain with degenerative arthritis, is remanded.

FINDINGS OF FACT

1. The appellant's cervical spine disability was incurred in or caused by service.

2. The appellant's left upper extremity radiculopathy was caused by his service-connected cervical spine disability.

3. The appellant's right upper extremity radiculopathy was caused by his service-connected cervical spine disability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a cervical spine disability, to include degenerative arthritis, DDD, and IVDS, are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

2. The criteria for entitlement to service connection for left upper extremity radiculopathy, as secondary to a service-connected cervical spine disability, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

3. The criteria for entitlement to service connection for right upper extremity radiculopathy, as secondary to a service-connected cervical spine disability, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant served on active duty in the United States Army from December 1990 to May 1991, and from June 2004 to November 2005, including in the Southwest Asia theater of operations during the Gulf War era. He had additional periods of service with the Army National Guard, including active duty for training (ADT) from April 16, 2010, to April 17, 2010. He is the recipient of the National Defense Service Medal, the Southwest Asia Service Medal, and other commendations.

Procedural History

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2025 higher-level review (HLR) of a January 2025 rating decision issued by the Department of Veterans Affairs (VA) Veterans Benefits Administration, the agency of original jurisdiction (AOJ). VA timely received the appellant's May 2025 notice of disagreement (NOD), via VA Form 10182, with the April 2025 HLR decision. The appellant selected the Board's Direct Review docket.

Recharacterization of Issues on Appeal

The April 2025 HLR decision characterized the issues on appeal, in part, as entitlement to service connection for (1) radiculopathy of the left and right upper extremities, and (2) actinic keratosis on the legs and right hand. However, the Board has recharacterized the first claim as one for a cervical spine disability, to include associated radiculopathy of the left and right upper extremities, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (Vet. App. 2009). Similarly, the Board has recharacterized the second claim as one for a skin disability, to include actinic keratosis and SCC residuals. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (CAVC) held that, in determining the scope of a claim
left and right upper extremities, and (2) actinic keratosis on the legs and right hand. However, the Board has recharacterized the first claim as one for a cervical spine disability, to include associated radiculopathy of the left and right upper extremities, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (Vet. App. 2009). Similarly, the Board has recharacterized the second claim as one for a skin disability, to include actinic keratosis and SCC residuals. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (CAVC) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. See Clemons, 23 Vet. App. at 5. Accordingly, the Board has classified the claims as listed above to account for the totality of the appellant's associated symptoms.

Applicable Evidentiary Window

As the appellant has selected the Direct Review Docket, the Board may only consider the evidence of record before the AOJ at the time of its decision on the issue(s) on appeal. See 38 C.F.R. §§ 20.300(a), 301. The Board will not consider evidence received after the AOJ decision unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the NOD (VA Form 10182). 38 C.F.R. § 20.301. The appellant has not filed such a request. If additional evidence was submitted after the AOJ decision, the Board will not consider it. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant 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 claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See also Cook v. McDonough, 36 Vet. App. 175 (2023). With respect to the claims of entitlement to service connection for a skin disability and bilateral lower extremity radiculopathy, as they are remanded herein, any evidence the Board could not consider will be considered by the AOJ. 38 C.F.R. § 3.103(c)(2)(ii).

Entitlement to service connection for a cervical spine disability and associated bilateral upper extremity radiculopathy is granted.

Essentially, the appellant attributes his neck problems, including upper extremity radiculopathy, to injuries he sustained in a vehicle crash while on ADT in April 2010. See e.g., VA Form 21-526EZ, Application for Disability Compensation & Related Compensation Benefits, January 16, 2025; see also Service Treatment Record, Statement of Medical Examination & Duty Status, April 16, 2010 (noting injury incurred in the line of duty on ADT). As explained below, the record also contains favorable medical evidence linking his cervical spine disability and associated upper extremity radiculopathy to earlier periods of active duty service. After careful review, the Board finds that service connection is warranted.

Applicable Law

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; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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 (or "nexus") between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). To establish service connection on this basis, there must be evidence of a chronic disease shown as such in service (or within
; and (3) a causal relationship (or "nexus") between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). To establish service connection on this basis, there must be evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Chronicity is established if the evidence demonstrates the existence of a chronic disease in service and present manifestations of that same in-service disease. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Continuity of symptomatology is established if (1) a chronic condition was "noted" during service, (2) there are post-service manifestations of the same symptomatology, and (3) medical or, sometimes, lay evidence shows a nexus between the present disability and post-service symptomatology. Id. A condition is "noted" in service where evidence is "indicative of but not dispositive of a chronic disease." Walker, 708 F.3d at 1340.

Establishing service connection on a secondary basis 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(a)-(b). The United States Court of Appeals for the Federal Circuit clarified the standard for secondary service connection in Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023), finding that secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Id. Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id. at 1364.

Analysis

In the decision on appeal, the AOJ favorably found that the appellant has been diagnosed with radiculopathy of the left and right upper extremities, as evidenced by a July 2023 VA examination. The AOJ also favorably found that the appellant participated in a toxic exposure risk activity (TERA), based on his service in Southwest Asia. These favorable findings are binding on VA. 38 U.S.C. § 5104A; 38 C.F.R. §§ 3.104(c); 20.801(a). However, the AOJ denied service connection for the bilateral upper extremity radiculopathy, finding no "link" (nexus) between these current disabilities and service. See HLR Rating Decision, April 25, 2025.

The Board has carefully reviewed the evidence of record. The most probative evidence shows both that the appellant has a current cervical spine disability, which is directly related to active service, and that his bilateral upper extremity radiculopathy is secondary to that cervical spine disability. This evidence comes from the July 2023 VA examination. See VA Neck (Cervical Spine) Conditions Examination Report & Medical Opinion, July 12, 2023. During the examination, the appellant reported that he experienced multiple neck injuries while he was deployed to Iraq in 2004-2005. He told the VA clinician he rode in a bumpy vehicle, which led to whiplash, and wearing night vision goggles caused neck strain. He reported that his neck pain had continued and worsened over time, and he developed intermittent moderate pain to the bilateral upper extremities with accompanying intermittent numbness and tingling to the hands. Id.

The VA clinician identified five current cervical spine diagnoses: (1) degenerative arthritis; (2) degenerative disc disease (DDD) other than intervertebral disc syndrome (IVDS); (3) IVDS; (4) right upper extremity radiculopathy, lower radicular group; and (5) left upper extremity radiculopathy, lower radicular group. See id. The VA clinician then provided a favorable medical opinion, which indicated that these current diagnoses, including the bilateral upper extremity radiculopathy, were likely incurred in or caused by service. See VA Medical Opinion, supra. The VA clinician explained that an October 2005 service treatment record noted a history of neck injuries, and although there were no additional records related to neck pain/injuries, the appellant's lay statements were "credible and consistent with the circumstances" of his service and his deployments in support of Operation Desert Storm and Operation Iraqi Freedom. Id.; see also Service Treatment Record, Chronological Record of Medical Care, October 4, 2005 (noting history of neck injuries). The VA clinician further explained that chronic wear and tear due to the physical nature of service, and the documented neck injuries in service, resulted in chronic inflammation and degenerative changes to the vertebrae, which caused DDD, and in turn, led to IVDS and upper extremity radiculopathy. Id.

The Board finds the VA medical opinion highly probative, as it contains "factually accurate, fully articulated, sound reasoning" for the conclusion that the appellant's cervical spine disability is due in-service neck injuries, while his bilateral upper extremity radiculopathy is secondary to the cervical spine disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This opinion was based on the VA clinician's review of the appellant's medical records, as well as the appellant's credible lay statements about the onset and history of his symptoms. See e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Significantly, the VA opinion is not contradicted by any other competent medical evidence in the record.

Resolving any reasonable doubt in his favor, the Board therefore finds that the appellant's cervical spine disability was caused by service, and that his bilateral upper extremity radiculopathy was caused by the service-connected cervical spine disability. Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Entitlement to service connection for a cervical spine disability, to include degenerative arthritis, DDD, and IVDS, is granted. Entitlement to service connection for left upper extremity radiculopathy, as secondary to a service-connected cervical spine disability, is granted. Entitlement to service connection for right upper extremity radiculopathy, as secondary to a service-connected cervical spine disability, is also granted.

REASONS FOR REMAND

The Board finds that the appellant's remaining claims for service connection must be remanded to the AOJ.

Under the AMA, VA's duty to assist ends when VA issues the notice of decision on a claim or returned claim and does not recommence unless a supplemental claim is submitted, or a claim is returned to the AOJ for correction of an error. 38 U.S.C. § 5103A(e); 38 C.F.R. § 3.159(c).

Given the limitations of when the duty to assist applies, remand by the Board in the AMA is proper for correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors); and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a).

While additional delay is regrettable, remand is necessary in order to correct the pre-decisional duty to assist errors discussed below.

1. Entitlement to service connection for a skin disability, to include actinic keratosis and residuals of SCC, is remanded.

The Board finds that the AOJ erred by failing to obtain an adequate "TERA opinion" for the appellant's SCC residuals, as required by the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive To
assist errors); and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a).

While additional delay is regrettable, remand is necessary in order to correct the pre-decisional duty to assist errors discussed below.

1. Entitlement to service connection for a skin disability, to include actinic keratosis and residuals of SCC, is remanded.

The Board finds that the AOJ erred by failing to obtain an adequate "TERA opinion" for the appellant's SCC residuals, as required by the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (the PACT Act). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("Once [VA] undertakes the effort to provide an examination when developing a service-connection claim ... [VA] must provide an adequate one").

Under the PACT Act, VA generally must provide a medical examination and obtain a medical opinion where there is evidence of a disability and participation in a TERA, but insufficient evidence to grant the claim. 38 U.S.C. § 1168. This requirement is part of the duty to assist under 38 U.S.C. § 5103A. The "TERA opinion" must address whether it is likely that there is a nexus between the disability and the TERA. 38 U.S.C. § 1168(a). However, no TERA examination or opinion is required if VA determines there is "no indication of an association" between the disability and the TERA. Id. § 1168(b). VA has identified six exceptions to the TERA examination and opinion requirement. While claims for certain skin cancers due to herbicide agent exposure are excepted, claims for skin cancer based on other types of toxic exposure are not. See VBA Letter 20-24-06 at 10-15, Updated Guidance on Processing Claims Involving the PACT Act, 89 Fed. Reg. 51,224 (June 17, 2024).

In this case, the April 2025 HLR decision denied service connection for actinic keratosis on the appellant's legs and right hand. The AOJ found that although the appellant participated in a TERA, there was "no evidence of a current, clinical diagnosis" for the claimed skin disability. See HLR Rating Decision, April 25, 2025; see also TERA Memorandum, August 7, 2024.

In July 2023, the appellant received a VA examination in connection with his earlier claim for service connection for a forehead scar, and for an increased rating for service-connected dermatofibroma skin lesions. See VA Skin Diseases & Scar/Disfigurement Examination Report, July 12, 2023. The July 2023 VA examination revealed a current diagnosis for another disability, skin cancer: SCC of the right lower calf status post excision of lesion. At the time of that examination, the appellant had a 7 x 1.5 cm surgical scar on his calf from the SCC excision. The VA clinician noted that the SCC/surgical scar was "an incidental finding unrelated to today's claimed conditions," and thus, did not provide a VA medical opinion as to whether this disability was likely caused by the appellant's TERA during service. Id.

In January 2025, the appellant received a VA skin examination for the claim on appeal. See VA Skin Diseases Examination Report & Medical Opinion, January 23, 2025. There, the VA clinician indicated that the appellant's prior SCC has resolved following surgical excision. The VA clinician went on to opine that "there is no current diagnosis which supports that [the appellant's] claimed condition is due to any toxic exposure." Id. However, the VA clinician expressed no opinion as to whether any residuals of SCC, to include the right calf surgical scar noted on the prior exam, are the result of the appellant's TERA.

The July 2025 TERA opinion does not adequately address the appellant's SCC residuals. This was a pre-decisional duty to assist error. So, on remand, the AOJ must correct its error and obtain an addendum, pursuant to 38 U.S.C. § 1168.

2. Entitlement to service connection for left lower extremity radiculopathy is remanded.

3. Entitlement to service connection for right lower extremity radiculopathy is remanded.

Finally, the Board finds that the AOJ erred by not providing a VA examination in connection with the appellant's claim for radiculopathy of the bilateral lower extremities.

A VA examination
the appellant's TERA.

2. Entitlement to service connection for left lower extremity radiculopathy is remanded.

3. Entitlement to service connection for right lower extremity radiculopathy is remanded.

Finally, the Board finds that the AOJ erred by not providing a VA examination in connection with the appellant's claim for radiculopathy of the bilateral lower extremities.

A VA examination or medical opinion is necessary when the record contains the following: (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 that certain diseases manifested during an applicable presumptive period, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the appellant's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

The third requirement for a VA examination or medical opinion is "a low threshold." McLendon, 20 Vet. App. at 81. It requires the showing of "some causal connection" between a claimant's disability and their military service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id.

Here, the April 2025 HLR decision denied service connection due to lack of a current diagnosis for left lower extremity radiculopathy or right lower extremity radiculopathy. See HLR Rating Decision, April 25, 2025. However, the record before the AOJ contained a January 2025 statement from the appellant. See VA Form 21-4138, Statement in Support of Claim, January 13, 2025. In this statement, the appellant indicated that the claimed radiculopathy was related to the April 2010 vehicle crash that also caused his service-connected TBI. Since that crash, he has reportedly experienced "numerous neurological problems," including severe pain, tingling, and numbness in both legs. Id. He also noted having chronic pain in his legs when walking or sitting for long periods of time. Id.

The January 2025 statement triggered the AOJ's duty to provide a VA examination because the appellant described persistent or recurrent symptoms of lower extremity radiculopathy since the April 2010 vehicle crash that occurred while he was on ADT. The appellant's statement indicated that these ongoing symptoms "may be associated" with the vehicle crash or the service-connected TBI that resulted from it. McLendon, 20 Vet. App. at 81. The AOJ's failure to provide an examination was therefore a pre-decisional duty to assist error. On remand, the AOJ must correct this error.

The matters are REMANDED for the following action:

1. Obtain an addendum medical opinion to determine whether it is likely (an approximate balance of negative and positive evidence) that the appellant's squamous cell carcinoma residuals, to include a right lower calf surgical scar, are the result of his participation in a toxic exposure risk activity (TERA).

The clinician must review the claims file and a complete copy of this remand in conjunction with rendering any opinion. This review should be noted in the examination report. If the clinician determines that a new examination or any testing is necessary, it should be so ordered.

In providing the requested opinion, the clinician must consider: 1) the total potential exposure through all applicable deployments; and 2) the synergistic, combined effect of all TERAs of the appellant.

2. Schedule the appellant for a VA examination to determine the nature and etiology of the claimed left lower extremity radiculopathy and right lower extremity radiculopathy. The clinician must review the claims file and a complete copy of this remand in conjunction with rendering any opinion. This review should be noted in the examination report.

The clinician is asked to provide an opinion responsive to the following:

(a.) Is it likely (an approximate balance of negative and positive evidence
is necessary, it should be so ordered.

The clinician is asked to provide an opinion responsive to the following:

(a.) Is it likely (an approximate balance of negative and positive evidence) that any current left lower extremity radiculopathy had its onset during the appellant's service or is otherwise etiologically related to service, to include the April 2010 vehicle crash?

(b.) State whether, but for the appellant's service-connected TBI and/or lumbar strain with degenerative arthritis, he would not have a current disability of left lower extremity radiculopathy.

(c.) State whether any current left lower extremity radiculopathy would be less severe and result in less functional impairment but for the appellant's service-connected TBI and/or lumbar strain with degenerative arthritis.

(d.) Is it likely (an approximate balance of negative and positive evidence) that any current right lower extremity radiculopathy had its onset during the appellant's service or is otherwise etiologically related to service, to include the April 2010 vehicle crash?

(e.) State whether, but for the appellant's service-connected TBI and/or lumbar strain with degenerative arthritis, he would not have a current disability of right lower extremity radiculopathy.

(f.) State whether any current right lower extremity radiculopathy would be less severe and result in less functional impairment but for the appellant's service-connected TBI and/or lumbar strain with degenerative arthritis.

In providing the requested opinions, the clinician must address the appellant's reports about his symptoms and medical history. The clinician is advised that the appellant is competent to report such symptoms and history. If the clinician rejects the appellant's reports, the clinician must provide a medical reason for doing so. The Board does not make any credibility determinations at this time with respect to the appellant's lay statements.

3. Thereafter, readjudicate the claims.

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board D.Z. Wall, 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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