Citation Nr: 1756790 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 13-34 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a compensable rating for left upper extremity radial nerve palsy. 2. Entitlement to service connection for cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from November 1989 to July 1998, March 2003 to February 2004, and March 2006 to August 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating action by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in September 2016, and a transcript of the hearing is associated with his claims folder. FINDINGS OF FACT 1. At his September 2016 Board hearing the Veteran testified that he wanted to withdraw his appeal for a compensable rating for left upper extremity radial nerve palsy. 2. The Veteran's current chronic cervical strain and arthritis were manifest in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for a compensable rating for left upper extremity radial nerve palsy are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for service connection for cervical spine disability are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Radial nerve palsy The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew his appeal. He testified that he had discussed the withdrawal with his representative, and he realized that he could refile the claim in the future, is he so desired. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Cervical spine disability Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis is listed as a chronic disease. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). Service treatment records show treatment for neck problems. For instance, three October 2006 service treatment records show a history of neck pain, with muscle tension and spasms. The Veteran was given Robaxin and then ran out of it. The assessment then and in November 2007 was cervicalgia. In the interim, a March 2007 MRI of the Veteran's cervical spine showed mild degenerative changes at multiple levels and mild to moderate right neuroforaminal narrowing at C5-6. A September 2007 MRI was similar. In January and February 2008, the Veteran had chiropractic intervention for cervical spine pain. On VA examination in March 2009, the Veteran had tenderness to palpation in his cervical spine, and the assessment was chronic cervical strain. On VA examination in August 2010, the Veteran did not have significant cervical spine complaints. The examiner noted this and examined the Veteran, without obtaining X-rays, and his diagnosis was that the Veteran's cervical spine was normal. A March 2015 VA examination showed cervical strain and degenerative arthritis of the spine, and an October 2016 VA MRI showed mild mid-cervical degenerative changes. Based on the evidence, the Board finds that service connection is warranted for chronic cervical strain and arthritis. The preponderance of the evidence indicates that these started in service and continue to this day; additionally, arthritis is a chronic disease. Since it was shown in service, its subsequent manifestations are presumed service-connected. 38 C.F.R. § 3.303(b). The Board discounts the August 2010 VA examination report as being inconsistent with the other, more probative evidence, which consists, in part, of similar or identical positive clinical and radiographic findings, and the same positive diagnoses being repeated over time. The Board would like to thank the Veteran for his numerous years of mostly wartime service. ORDER The appeal for a compensable rating for left upper extremity radial nerve palsy is dismissed. Service connection for cervical spine arthritis is granted. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs