Citation Nr: 19190010 Decision Date: 11/29/19 Archive Date: 11/29/19 DOCKET NO. 18-01 286 DATE: November 29, 2019 ORDER Entitlement to service connection for radiculopathy of the right upper extremity, to include as secondary to a right elbow disability or cervical spine disability, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has had radiculopathy of the right upper extremity at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for radiculopathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1993 to February 1995, February 2003 to May 2004, March 2008 to June 2009, and May 2011 to June 2012. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). Radiculopathy of the Right Upper Extremity Although the Veteran originally filed a claim for radiculopathy secondary to his service-connected right elbow disability, he clarified in his notice of disagreement and substantive appeal (VA Form 9) that he believes this radiculopathy is actually related to his service-connected cervical spine/neck disability. The Board has recharacterized his claim to include both theories of entitlement. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). During this appeal, the agency of original jurisdiction (AOJ) granted a separate service connection claim for peripheral neuropathy of the right upper extremity secondary to the Veteran’s right elbow disability. See August 2016 Rating Decision (assigning a 30 percent disability rating for moderate incomplete paralysis of the major extremity). The Veteran did not appeal that rating decision and the issue of entitlement to a higher rating is not before the Board. Accordingly, the Veteran’s request, via his representative, for a new VA examination to evaluate the current severity of his peripheral neuropathy is denied as moot. See October 2019 Appellate Brief at 2. The question before the Board is whether the Veteran has a current, non-service-connected disability—radiculopathy of the right upper extremity—that is proximately due to or aggravated by one of the above listed service-connected disabilities. Upon careful review of the record, the Board finds that the Veteran does not have a current, non-service-connected disability. In his June 2015 notice of disagreement, the Veteran described tingling in his fingertips and severe pain down the length of his arm. He suggested he was diagnosed with radiculopathy by MRI prior to his neck surgery. See also December 2017 VA Form 9. This statement appears to refer to a November 2009 letter from “Dr. J.C.M.,” a private surgeon. The letter states that Dr. J.C.M. reviewed an MRI of the Veteran’s cervical spine and his C6-7 disc herniation “would explain [his] neck and arm symptoms.” This letter does not mention or constitute a clinical diagnosis of radiculopathy. Even if it did, the letter predates the Veteran’s February 2014 statement of claim by more than four years. It is unclear from the record whether his symptoms resolved following the neck surgery in December 2009, as Dr. J.C.M. suggested in the letter. A disability that resolves, or becomes asymptomatic, during the pendency of a claim may still be subject to service connection. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Nevertheless, a disability diagnosed prior to the filing of a claim must be shown to be present at some point during the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Thus, the Board finds that the November 2009 letter does not satisfy the current disability requirement for service connection. The Veteran has not identified any other medical evidence supporting a current diagnosis for radiculopathy. The Veteran underwent a VA examination for his cervical spine in February 2015. The examination report indicates that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. A February 2016 VA electrodiagnostic study states there is evidence of ulnar neuropathy of the right elbow, but no evidence of right median neuropathy, plexopathy, or cervical radiculopathy. In July 2016, the Veteran received a VA examination for a peripheral nerve condition. The examiner documented pain, paresthesias and/or dysesthesias, and numbness in the right upper extremity, and diagnosed peripheral neuropathy, status post convalescence for ulnar nerve decompression and transposition of the right arm in 1994. There is no indication in the examiner’s report of a distinct diagnosis for radiculopathy. As noted above, the Veteran receives compensation for his service-connected peripheral neuropathy. The Board observes that VA regulations prohibit paying compensation twice for the same symptoms or functional impairment. Lyles v. Shulkin, 29 Vet. App. 107, 113 (2017); see also Amberman v. Shinseki, 570 F.3d 1377, 1380-81 (Fed. Cir. 2009) (“VA regulations caution against making multiple awards for the same physical impairment simply because that impairment could be labeled in different ways. It is the veteran’s overall disability that is relevant, not the name of the causative disorder or disorders.”). Finally, the Board has considered the Veteran’s lay statements regarding his symptoms and claimed disability. The record does not show, and the Veteran has not asserted, that he is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See 38 C.F.R. § 3.159. While he is competent to report his observable symptoms and personal medical history, he is not competent to self-diagnose radiculopathy, to distinguish his symptoms from another diagnosis (e.g., peripheral neuropathy), or to attribute a diagnosis to a particular cause, because those determinations require medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (continued on next page) Based on the foregoing, the Board finds no competent evidence of radiculopathy of the right upper extremity at any point during the pendency of the Veteran’s claim. A current disability is the cornerstone of a claim for service connection, and in the absence of proof of a current disability, there can be no valid claim. Degmetich v. Brown, 104 F. 3d 1328,1333 (1997). As the preponderance of the evidence weighs against service connection, the benefit-of-the-doubt rule is not applicable in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The appeal must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.