Citation Nr: 21063313 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 07-28 259 DATE: October 13, 2021 ORDER A rating in excess of 20 percent for the residuals of an L2 compression fracture is dismissed. A rating in excess of 10 percent for left lower extremity radiculopathy is dismissed. A rating in excess of 10 percent for right lower extremity radiculopathy is dismissed. Service connection for a cervical spine condition is denied. Service connection for left upper extremity radiculopathy is denied. Service connection for right upper extremity radiculopathy is denied. FINDINGS OF FACT 1. On June 15, 2021, prior to the promulgation of a decision in the appeal, VA received notification that the Veteran wished to withdraw his appeal of the claim for an increased rating for the residuals of an L2 compression fracture from appellate review. 2. On June 15, 2021, prior to the promulgation of a decision in the appeal, VA received notification that the Veteran wished to withdraw his appeal of the claim for an increased rating for left lower extremity radiculopathy from appellate review. 3. On June 15, 2021, prior to the promulgation of a decision in the appeal, VA received notification that the Veteran wished to withdraw his appeal of the claim for an increased rating for right lower extremity radiculopathy from appellate review. 4. The weight of the evidence is against finding that the Veteran's cervical spine condition is either related to his service-connected back disability or that it began in or was otherwise caused by the Veteran's active military service. 5. The weight of the evidence is against finding that the Veteran's left upper extremity radiculopathy either related to his service-connected back disability or that it began in or was otherwise caused by the Veteran's active military service. 6. The weight of the evidence is against finding that the Veteran's right upper extremity radiculopathy is either related to his service-connected back disability or that it began in or was otherwise caused by the Veteran's active military service. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the increased rating claim for the residuals of an L2 compression fracture have been met; and the Board has no further jurisdiction over this matter. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for the withdrawal of the increased rating claim for left lower extremity radiculopathy have been met; and the Board has no further jurisdiction over this matter. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for the withdrawal of the increased rating claim for right lower extremity radiculopathy have been met; and the Board has no further jurisdiction over this matter. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for service connection for a cervical spine condition have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 5. The criteria for service connection left upper extremity radiculopathy have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 6. The criteria for service connection for right upper extremity radiculopathy have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to May 1971. The Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) at a June 15, 2021 Board hearing. A complete transcript is of record. Withdrawn Claims The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. 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. § 20.205 (a), (b)(3). Here, at the Veteran's June 2021 Board hearing, the Veteran indicated that he wished to withdraw the increased ratings claims for the back and radiculopathy of the lower extremities. The VLJ informed him that the Board would not issue a decision on those issues and that he was welcome to file for increased ratings in the future. When pending appeals are withdrawn, there is no longer an allegation of error of fact or law with respect to those issues on appeal. In such circumstances, dismissal of the appeal is appropriate. 38 U.S.C. § 7105 (d)(5). The Board finds that the Veteran's statements at the June 2021 Board hearing meets the criteria for the withdrawal of the specified claims. 38 C.F.R. § 20.205 (b)(1). Accordingly, the Veteran's increased ratings claims for the residuals of an L2 compression fracture and bilateral lower extremity radiculopathy are dismissed. Service Connection 1. Service connection for a neck condition is denied. 2. Service connection for left upper extremity radiculopathy is denied. 3. Service connection for right upper extremity radiculopathy is denied. The Veteran asserts that he injured his neck during his active duty service, when he fell on a water tank. Specifically, he testified that the in-service fall that caused his service-connected lumbar spine disability, also resulted in an injury to his neck. The Veteran's service treatment records (STRs) do not show any diagnosis or treatment for any neck condition. However, the Veteran has indicated that his surgeon told him that his neck condition may be related to his lumbar spine disability. See Correspondence received July 14, 2014. These issues were previously before the Board in November 2017. The Board pointed out that there were outstanding treatment records regarding the cervical spine, namely an electromyogram (EMG), which was used to show whether there was a current diagnosis for bilateral cervical radiculopathy. The Board also found it necessary to afford the Veteran a VA examination that addressed whether his cervical spine condition was related to his service-connected lumbar spine disability. VA received the Veteran's updated VA treatment records. A review of the post-service treatment records shows that he was diagnosed with degenerative changes of the cervical spine and a March 2015 EMG was consistent with bilateral cervical radiculopathy. As such, the Board recognizes that the Veteran has been diagnosed with a cervical spine disability and bilateral lower extremity radiculopathy. As such, the Board finds that there has been substantial compliance as to the November 2017 Board remand directives, as they relate to the outstanding treatment records. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded a VA examination in January 2020. After an in-person examination and a review of the Veteran's claims file, the examiner noted degenerative arthritis of the spine and mild radiculopathy associated with the C7 nerve root. Regarding the etiology opinion, the examiner provided a negative nexus opinion. The examiner noted that the Veteran's STRs did not discuss any neck problems and that the first indication of neck pains was in 2010. The examiner also reported that the cervical degenerative arthritis was diagnosed in 2014, requiring anterior cervical fusion in the same year. The examiner acknowledged the compression fracture of the L2, spinal stenosis and lumbar degenerative arthritis, but explained that the cervical joints and lumbar joints are in continuity via the thoracic vertebrae, but each has their own fulcrum of motion/mobility/biomechanics and work separate from each other. Since the bio and physiokinetics are different from each other, the neck condition was less likely than not related to the old L2 fracture, the back condition, or service. Here, the Veteran was provided a VA examination to determine the etiology of his cervical spine disability. The examiner took into account his in-service back injury and the service-connected back disability. As such, the Board finds that there has been substantial compliance as to the November 2017 Board remand directives, as they relate to providing the Veteran a VA examination to obtain an etiology opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A review of the Veteran's post-service treatment records does not provide any indication that the Veteran's neck condition or its associated upper extremity radiculopathy is due to his active duty service or his service-connected back condition. The Veteran provided testimony at the June 2021 Board hearing. He testified about the incident where he hurt his back and neck; he reported that he was about 20 feet in the air, when a rail broke and he fell backwards. He reported that his back hit the tailgate of a truck and his head and neck hit a water tank. He testified that he did not have neck or arm problems before the military, but started developing neck pain a couple years after service. He described the first symptoms was neck pain that went down into the shoulders. The Board has considered whether presumptive service connection is warranted based on a continuity of symptomatology, based on the Veteran's assertion that he has experienced pain since his active duty service. However, the Veteran testified that he started experiencing neck symptoms several years after service and the contemporaneous evidence of record does not support his assertion of continuous symptoms. For example, the January 2020 VA examiner noted that the first indication of neck pains was in 2010. Here, the Veteran's own testimony shows that there has not been a continuity of symptomatology, regarding his neck and/or radiculopathy symptoms, since his active duty service. To the extent that the Veteran believes that his neck disability and upper extremity radiculopathy is the result of his in-service injury and/or service-connected back disability, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran's assertions, a VA examination was ordered, which took into account the evidence of record. Unfortunately, the January 2020 VA examiner provided a negative nexus opinion. The Board notes that the Veteran has not offered any medical opinion that would undermine the January 2020 VA examiner's medical opinion. Here, there is only one competent medical opinion of record, the January 2020 VA examiner's opinion that the Veteran's cervical spine condition is not related to his service-connected back disability and was not otherwise related to his active duty service. The Board affords the January 2020 VA examiner's opinion great probative weight because the examiner had a chance to review his claims file and provided an explanation for the negative nexus opinion. To rebut the January 2020 VA examiner, the Veteran must provide a medical opinion from a competent medical professional, with a sufficient rationale that supports their opinion. The Board acknowledges the Veteran's belief that his cervical spine condition is related to his in-service injury and/or service-connected back disability. However, the January 2020 VA examiner reported that the lumbar spine condition and cervical spine condition were not etiologically related and explained that the cervical and lumbar joints each have their own fulcrum of motion/mobility/biomechanics and work separate from each other. Here, the examiner did not find a medical nexus between the Veteran's cervical spine condition and his old L2 fracture, back condition, or service. The Board is sympathetic to the Veteran's belief that his cervical spine condition is related to his service-connected back disability and does not wish to minimize such assertions or beliefs. However, the criteria for service connection have not been met. The Board notes that the bilateral upper extremity radiculopathy has been attributed to the Veteran's cervical spine disability. Given that the service-connection claim for a cervical spine disorder has been denied, any conditions that are secondary to the cervical spine condition cannot be service-connected. Accordingly, service connection for a cervical spine condition and for bilateral upper extremity radiculopathy is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.