Citation Nr: 1803219 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-05 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a compensable evaluation for traumatic brain injury. 2. Entitlement to service connection for degenerative disc disease of the cervical spine. 3. Entitlement to service connection for right upper extremity radiculopathy (also claimed as muscle disability of the arm, forearm, hand, and fingers). 4. Entitlement to service connection for left upper extremity radiculopathy (also claimed as muscle disability of the arm, forearm, hand, and fingers). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1982 to August 1982, from December 1982 to December 1986, and from March 1988 to December 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In December 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video conference hearing. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. In December 2016, prior to the promulgation of a decision on appeal, the Veteran, via pre-hearing conference before the Board, requested withdrawal of his appeal seeking entitlement to a compensable evaluation for traumatic brain injury. 2. The Veteran's current neck disability, degenerative arthritis of the cervical spine, did not manifest in service, within the one-year presumptive period following service discharge, and is not otherwise etiologically related to such service. 3. The Veteran's current right arm disability, possible nerve root lesion, did not manifest in service, is not etiologically related to service, and is not secondary to any service connected disability. 4. The Veteran's current left arm disability, possible nerve root lesion, did not manifest in service, is not etiologically related to service, and is not secondary to any service connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to a compensable rating for service-connected traumatic brain injury by the Veteran were met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for degenerative disc disease of the cervical spine have not been met. 38 U.S.C. §§ 1101, 1110, 1137 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1101, 1110, 1137 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). 4. The criteria for service connection for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1101, 1110, 1137 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of claim 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. § 7105 (West 2012). 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 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2017). Traumatic brain injury In the present case, the Veteran requested that the Board withdraw his appeal for entitlement to a compensable rating for service-connected traumatic brain injury during a pre-hearing conference before the Board. See December 2016 Transcript. The cited hearing transcript documents has been associated with the claims file and serves as written notice of the request to withdraw the appeal of this issue. Hence, there remain no allegations of errors of fact or law for appellate consideration as to the issue. Accordingly, the Board does not have jurisdiction to review the appeal of the issue of entitlement to a compensable evaluation for service-connected traumatic brain injury. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. B. Presumptive Service Connection for Chronic Diseases Service connection for certain musculoskeletal diseases, including arthritis, may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307 (a)(3) (2017). If the chronic disease manifested in service or within the presumptive period, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Id. at 1338-39 (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself "establishes the link, or nexus" to service and also confirms the existence of the chronic disease while in service or during a presumptive period). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). C. Secondary Service Connection Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (2017). Additional disability resulting from the aggravation of a non-service-connected disability by a service-connected disability is also service-connected. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). Intervertebral disc disease of the cervical spine In a December 2016 Hearing before the Board, the Veteran testified that he injured his neck as a result of a motorcycle accident he suffered during service. See December 2016 Transcript. He stated that the as a result of the accident, the helmet that he was wearing cracked due to the force of the trauma. He testified that he could not remember all of the specifics after the accident, but remembered waking up in the hospital where he experienced headaches and vertigo. Additionally, the Veteran's representative mentioned that the record included the Veteran's statements that a car hood fell on his neck while working on a truck during a deployment in Germany. The Veteran described his current cervical symptoms as pain and numbness which sometimes cause shooting sensations in his arms bilaterally. With respect to element (1), a current disability, the Veteran has a cervical spine disability. The Veteran was afforded a VA examination in April 2010. Based on a March 2013 MRI of the cervical spine, the Veteran was diagnosed with degenerative arthritis in the C5-6 to C6-7 regions of the cervical spine with canal stenosis. With respect to element (2), in-service incurrence or aggravation of a disease or injury, the evidence reveals that the Veteran was hospitalized in August 1986 following a motorcycle accident. See Service Treatment Records at 5. The Board notes that the Veteran's service treatment records are silent for any complaint or treatment for a cervical spine disability during service or within one year of the Veteran's separation. There is no record of the Veteran presenting for treatment following an injury from a car hood falling on his neck. The record does include treatment notes following a motorcycle accident; however, the Veteran's reported symptoms did not include any mention of neck pain or associated symptomatology. The Veteran was observed for concussion symptoms and was diagnosed with minimal abrasions to his hands bilaterally. An MRI of his cervical spine was normal without any notation of fracture, stenosis, disc bulge, or degenerative arthritis. Based on the Veteran's testimony and his presentation for treatment following the motorcycle accident, the Board finds that there is evidence of an in-service injury. 38 U.S.C. § 5107 (b) (West 2012). With respect to element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability, the competent, credible, and probative evidence of record weighs against a finding that the Veteran's current degenerative arthritis of the cervical spine is etiologically related to service. While the Veteran was involved in a motorcycle accident, there is no reference to any neck or cervical spine pathology. The in-service medical examinations, including his Medical Board separation examination and treatment record after the Veteran's accident, revealed no cervical spine symptoms or diagnoses, which was confirmed via radiographical tests. The Board notes that the Veteran first sought treatment for a neck disability in July 2006, where he was diagnosed with degenerative disc disease at C5-6 and C6-7. Those records do not indicate the etiology of the cervical spine complaints. Significantly, during a VA examination in September 2005, while there was extensive discussion of a low back condition, there was no reference to any cervical spine condition. VA outpatient treatment records during this time period also do not list a cervical spine condition as a current problem. These findings suggest that a cervical spine condition was not present. They also tend to reduce the credibility of the Veteran's statements regarding any continuity of symptomatology. See AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (silence within records is pertinent evidence when records would typically document event in dispute); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (silence in medical records may be relevant evidence that symptoms were not present if the record would normally have recorded such symptoms). Finally, the medical opinion evidence is against the claim as the VA examiner in April 2010, concluded that the Veteran's neck disability is not related to the reported in-service motorcycle accident as the Veteran's current symptoms did not manifest until 18 years after separation. There remains no medical evidence that positively associates the Veteran's degenerative arthritis of the cervical spine to his service. While the Veteran may believe that his current cervical spine disability is related to incidents in service, he is not shown to have the expertise to offer an opinion on such a medically complex topic. As such, service connection is not warranted. Radiculopathy of the left and right upper extremities In the December 2016 hearing before the Board, the Veteran testified that he experiences shooting pains in his neck that travel to his arms. He stated that he feels the sensation in his arms and biceps while experiencing numbness in his fingers. In May 2013, the Veteran was afforded a VA examination for his reported bilateral arm symptoms. The examiner noted right cervical radicular pain without motor abnormalities. No radicular pain was noted in the left arm. The examiner found that the Veteran did not present with a diagnosis of radiculopathy in either upper extremity. The examiner noted nerve reinnervation on the triceps bilaterally, which she stated may be indicative of a right nerve root lesion at the C7-8 region and a left nerve root lesion at the C7 region of the cervical spine. With respect to element (1), a current disability, affording the Veteran the benefit-of-the-doubt, the Board finds that he meets the criteria for a bilateral upper extremity nerve disability. The April 2010 VA examiner ruled out a diagnosis of radiculopathy, but noted the "possibility" of a nerve condition bilaterally. Review of the Veteran's post-separation treatment records reveal that he has complained of numbness in his hands since 2001. Review of the Veteran's post-separation treatment records reveal that, based on an electromyogram (EMG), the Veteran was diagnosed with carpal tunnel syndrome of his right and left wrists with spotty areas of numbness bilaterally. See CAPRI January 2012 at 7. With respect to element (2), in-service incurrence or aggravation of a disease or injury, the evidence reveals that the Veteran was hospitalized in August 1986 following a motorcycle accident where he suffered abrasions to his arms. See Service Treatment Records at 5. These superficial wounds healed by the time the Veteran separated from service. No nerve condition of the upper extremities was noted in service or within one year of separation. There was no mention of any treatment for pain or numbness in the Veteran's upper extremities until 2001. The Board finds that the Veteran did not manifest with a left or right upper extremity disability in service or within the one year presumptive period. Even if the Board were to afford the Veteran the benefit-of-the-doubt that he did suffer a bilateral upper extremity disability in service, there remains no medical evidence linking his reported symptoms to such service. As such, service connection on a direct basis is not warranted. The Veteran's post separation treatment records and April 2010 VA examination reveal that his bilateral arm symptoms are likely related to his cervical spine condition. However, as the Board has determined that service connection for a cervical spine disability is denied, service connection on a secondary basis due to the condition is not warranted. There is no medical evidence that positively links the Veteran's bilateral upper extremity condition to a service connected disability. As such, service connection on a secondary basis is not warranted. ORDER Entitlement to a compensable evaluation for traumatic brain injury is dismissed. Entitlement to service connection for degenerative disc disease of the cervical spine (also claimed as arthritis) is denied. Entitlement to service connection for right upper extremity radiculopathy (also claimed as muscle disability of the arm, forearm, hand, and fingers) is denied. Entitlement to service connection for left upper extremity radiculopathy (also claimed as muscle disability of the arm, forearm, hand, and fingers) is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs