Citation Nr: 20004486 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 12-20 293 DATE: January 21, 2020 ORDER Entitlement to service connection for a right pinched nerve in the neck is denied. Entitlement to service connection for left shoulder thoracic outlet syndrome is denied. FINDINGS OF FACT 1. The most probative evidence shows that the Veteran does not currently have a disability manifested by a right pinched nerve in the neck, to include right upper extremity radiculopathy, beyond cervical spondylosis with degenerative disc disease which is already service-connected. 2. The most probative evidence shows that the Veteran does not currently have left shoulder thoracic outlet syndrome. His symptoms of left shoulder pain have been attributed to left shoulder strain which is already service-connected. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right pinched nerve in the neck have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for left shoulder thoracic outlet syndrome 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 in the United States Army from October 1979 to October 2009, including service in the Southwest Asia theater of operations. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which, in pertinent part, denied service connection for a right pinched nerve in the neck and left shoulder thoracic outlet syndrome. The Board notes that in addition to the issues set forth above, the issues on appeal also previously included service connection for dry eye syndrome, bilateral hearing loss, carpal tunnel syndrome of the right arm, left shoulder strain, right shoulder strain, and hypertension. Before the appeal was certified to the Board, however, in a March 2015 rating decision, the RO granted service connection for hypertension, left shoulder strain, and right shoulder strain, and assigned initial 10 percent ratings, effective November 1, 2009, for each disability. The RO also granted service connection for bilateral hearing loss and dry eye syndrome and assigned initial noncompensable ratings, effective November 1, 2009, for each disability. In a February 2016 rating decision, the RO granted service connection for carpal tunnel syndrome of the right upper extremity and assigned an initial noncompensable rating, effective November 1, 2009. The award of service connection for these disabilities constitutes a full grant of the benefit sought on appeal with respect to those claims. As the Veteran did not initiate an appeal with the downstream elements of effective date or initial rating, those matters are not in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning downstream issues, such as the compensation level assigned for the disability and the effective date). On his June 2012 substantive appeal (VA Form 9), the Veteran requested a Board videoconference hearing in connection with his appeal. In a January 2019 letter, the Board advised the Veteran that his hearing had been scheduled for March 2019. In February 2019 written correspondence, however, the Veteran withdrew his hearing request and asked that the Board proceed with consideration of the claim based on the evidence of record. See 38 C.F.R. § 20.704(e) (2019). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for right pinched nerve in the neck In August 2009, the Veteran submitted an original application for VA compensation benefits, seeking service connection for more than thirty disabilities, including a “pinched nerve neck” which he indicated had begun on July 27, 2009. Service treatment records (STRs) document the Veteran’s complaints of pain in his cervical spine. Imaging studies performed during active duty showed multilevel cervical spondylosis and degenerative changes. Service treatment records also show that on July 27, 2009, the Veteran sought treatment with multiple complaints, including right arm pain which came from the shoulder and “vibrates down to his fingers giving him a numbing sensation.” He was assessed as having cervical disc disease and an MRI was recommended. At his August 2009 retirement examination, the Veteran endorsed numerous complaints, including neck and bilateral shoulder pain. He also indicated that he had carpal tunnel syndrome in the right wrist. He reported a history of a “pinched nerve-right arm tingling” in July 2009. The examiner noted that an MRI was “pending for neck ? pinched nerve.” Later that month, the Veteran was seen in the family practice clinic for a “pinched nerve” referral. He reported intermittent neck pain and right hand numbness and tingling. He indicated that he believed he injured his neck while carrying heavy equipment. The assessment was cervicalgia. An MRI was recommended. The post-service record on appeal includes October 2010 X-ray studies which continued to show spondylo-degenerative changes. The Veteran reported that he had chronic neck pain for years. In an October 2010 statement, the Veteran reported that he developed a pinched nerve while on active duty and it is aggravated on a regular basis. The Veteran was afforded a VA examination in October 2010. At that time, he was diagnosed as having cervical degenerative disc disease. Neurological examination, however, showed that the bilateral upper extremities exhibited intact vibratory sensation and light filament sensation distally. Strength was normal, bilaterally, at 5/5. The post-service record on appeal includes VA and private clinical records which do not document a chronic disability manifested by a pinched nerve in the neck beyond cervical spondylosis, degenerative disc disease, right carpal tunnel syndrome, and right shoulder strain for which service connection is already in effect. For example, the Veteran sought treatment in March 2014 for right shoulder pain after engaging in CrossFit. He denied numbness and tingling in the right extremity as well as weakness. The assessment was joint pain. In June 2017, he sought treatment for worsening right shoulder pain. He again denied numbness and tingling in the hands or fingers. Examination showed that strength was intact in the arms and that grip strength was normal and equal bilaterally. The Veteran was afforded a cervical spine examination in January 2018 at which he was diagnosed as having spondylosis, degenerative disc disease, and pseudogout. A sensory examination was normal, including in the right hand, fingers, arm and shoulder. Strength in the upper extremities was normal. Upper extremity reflexes were normal. The examiner expressly concluded that the Veteran did not exhibit signs or symptoms of cervical radiculopathy, nor did he exhibit any other neurological abnormality related to the cervical spine. After reviewing the record in its entirety, the Board finds that the preponderance of the evidence is against the claim of service connection for right pinched nerve in the neck. As set forth above, in order to establish service connection, a Veteran must first show the existence of a present disability. In this case, the clinical evidence of record establishes that the Veteran does not currently have a disability manifested by a right pinched nerve in the neck, to include cervical radiculopathy. As set forth above, an examination conducted as recently as January 2018 showed that the Veteran exhibited no signs or symptoms of radiculopathy. The Board has considered the Veteran’s 2010 statements to the effect that he developed a pinched right nerve while on active duty and that it is aggravated on a regular basis. Although the Veteran is competent to describe his symptoms, he is not competent to attribute them to a particular cause. Here, the record reflects that service connection is already in effect for cervical spondylosis with degenerative disc disease, right shoulder strain, and right carpal tunnel syndrome, all disabilities productive of pain in the neck and right upper extremity. There is simply no competent evidence that the Veteran exhibits an additional chronic disability manifested by a pinched right nerve in the neck. Under these circumstances, service connection for that disability must be denied. The Veteran, however, is advised that his service-connected cervical spine disability is rated under the 38 C.F.R. § 4.71a, the General Rating Formula for Diseases and Injuries of the Spine. Those criteria specifically provide that any associated objective neurologic abnormalities, such as radiculopathy, will be evaluated separately, under an appropriate diagnostic code. In other words, should he be diagnosed as having cervical radiculopathy of either upper extremity in the future, it will be considered associated with his service-connected cervical spine disability 2. Entitlement to service connection for left shoulder thoracic outlet syndrome In August 2009, the Veteran submitted an original application for VA compensation benefits, seeking service connection for more than thirty disabilities, including left shoulder thoracic outlet syndrome which he indicated had begun on November 9, 1987. The Veteran’s service treatment records show that on November 9, 1987, he sought treatment for complaints including tingling and numbness in his left arm/shoulder. He indicated that he had had a similar episode in 1984, but that there had been no cardiac involvement. The examiner indicated that clinical examination was normal in all pertinent respects. The assessment was normal exam, possible thoracic outlet syndrome. The Veteran was treated with “reassurance.” In pertinent part, the post-service record on appeal shows that in February 2010, the Veteran continued to complain of pain in his left shoulder. Radiology imaging from April 2017 reveal very mild degenerative changes of the left shoulder. A January 2018 DBQ report reflects a diagnosis of bilateral shoulder strain. The examiner noted this was asymptomatic. The Veteran reported that the pain began in 1993 as a result of routine wear and tear while in the service. Post-service VA and private treatment records reflect complaints of pain in the shoulders, bilaterally, but are negative for notations of thoracic outlet syndrome. Upon review of the evidence of record, the Board finds that service connection for left shoulder thoracic outlet syndrome is not warranted. After reviewing the evidence of record, the Board concludes that the Veteran has not had a diagnosis of left shoulder thoracic outlet syndrome during the pendency of the claim. The evidence does not reflect any diagnosis or treatment for left shoulder thoracic outlet syndrome. In addition, although the Veteran has competently reported left shoulder symptoms, the record contains no indication that such symptoms are manifestations separate from his already service-connected left shoulder disability. Again, the Veteran is competent to describe his symptoms but he is not competent to attribute them to a particular cause. As the most probative evidence of record reflects that the Veteran does not have a left shoulder disability, outside of his service-connected left shoulder strain, entitlement to service connection is not warranted. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (“Without a current disability, of course, there can be no service connection and, thus, no disability compensation”). For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim of service connection for left shoulder thoracic outlet syndrome. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.