Citation Nr: 21069854 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-25 274 DATE: November 22, 2021 ORDER 1. The appeal concerning the issue of entitlement to service connection for a cervical spine disability is dismissed. 2. The appeal concerning the issue of entitlement to a rating excess of 50 percent for other specified trauma and stress related disorder is dismissed. 3. Entitlement to service connection for radiculopathy of the bilateral lower extremities, as secondary to the service-connected lumbosacral strain (low back disability), is granted. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, at the May 2021 Board hearing, the Veteran withdrew his appeal concerning the issues of entitlement to service connection for a cervical spine disability and rating in excess of 50 percent for other specified trauma and stress related disorder. 2. Resolving all reasonable doubt in favor of the Veteran, the diagnosed bilateral lower extremity radiculopathy is secondary to his low back disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2020). 2. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to a rating excess of 50 percent for other specified trauma and stress related disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2020). 3. The criteria for entitlement to service connection for bilateral lower extremity radiculopathy, as secondary to the low back disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § § 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2004 to October 2004, as well as from May 2007 to June 2008. These matters come to the Board of Veterans' Appeals (Board) on appeal from May 2018, July 2018, and October 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Withdrawal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. A substantive appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At the May 2021 Board hearing, the Veteran knowingly, explicitly, and unambiguously withdrew his appeal concerning the issues of entitlement to service connection for a cervical spine disability and a rating in excess of 50 percent for other specified trauma and stress related disorder. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. Service Connection Entitlement to service connection for radiculopathy of the bilateral lower extremities, as secondary to the service-connected low back disability, is granted. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 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; 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 of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran contends that he suffers from radiculopathy in both left and right lower extremities due to his service-connected back condition. The evidence of record establishes that the Veteran has a diagnosis of lumbar radiculopathy. See West Virginia University Private Treatment Record dated June 8, 2020. Private treatment records document the Veteran's reports of numbness and tingling in both lower extremities associated with his lower back condition. The Veteran has also been prescribed medication to treat radiculopathy of the bilateral lower extremities. Based on this, and resolving all reasonable doubt in favor of the Veteran, the evidence supports a nexus between the diagnosed radiculopathy and the service-connected lumbar spine disability. The criteria of service connection have been met, and entitlement to service connection for bilateral lower extremity radiculopathy, secondary to the service-connected low back condition, is warranted. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.