Citation Nr: 21008440 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-07 029A DATE: February 17, 2021 ORDER Entitlement to service connection for traumatic brain injury (TBI), to include as residuals of TBI, is dismissed. Entitlement to service connection for bilateral foot condition is dismissed. Entitlement to service connection for cervical radiculopathy, to include as secondary to degenerative disc disease, is denied. FINDINGS OF FACT 1. An October 2020 rating decision granted the full benefit sought for entitlement to service connection for TBI. 2. An October 2020 rating decision granted the full benefit sought for entitlement to service connection for a bilateral foot condition. 3. The competent evidence is against a finding that the Veteran has cervical radiculopathy, to include as secondary to degenerative disc disease. CONCLUSIONS OF LAW 1. The appeal with respect to the claim of entitlement to service connection for TBI is dismissed due to the absence of a controversy at issue. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The appeal with respect to the claim of entitlement to service connection for a bilateral foot condition is dismissed due to the absence of a controversy at issue. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for service connection for cervical radiculopathy, to include as secondary to degenerative disc disease, have not been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. §§ 3.303; 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1978 to May 1981. In December 2018, the Veteran and his sister testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2019, the issues on appeal were remanded for further development. I. Dismissal Service Connection for TBI and for Bilateral Foot Condition In June 2019, the Veteran’s claims for service connection for TBI and bilateral foot condition were remanded for additional development. While the appeal was pending, in an October 2020 rating decision, the RO granted the Veteran’s claims for service connection for TBI and bilateral foot condition. As this decision reflects an award of all benefits sought on appeal, and the appeal as to these two issues is thus considered satisfied in full. As such, there is no longer an issue in controversy, a dismissal of these issues is appropriate. 38 U.S.C. § 7105 (d); 38 C.F.R. §§ 20.101, 20.202. II. Service Connection Service Connection for Cervical Radiculopathy Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In the present case, the Veteran contends that he is entitled to service connection for cervical radiculopathy, as the result of an in-service motor vehicle accident. In the alternative, the Veteran contends that his cervical radiculopathy is secondary to his degenerative disc disease. At the onset, the Board notes that the Veteran’s service treatment records document an in-service motor vehicle accident on June 13, 1980. However, the record does not reflect a current diagnosis of cervical radiculopathy. The Veteran’s service treatment records are silent for a diagnosis of cervical radiculopathy. In addition, in the Veteran’s May 2012 VA examination addendum, the VA examiner opined that the Veteran does not have any evidence of cervical radiculopathy. Also, in a September 2016 discharge summary, the report noted that a March 2015 electromyography (EMG) revealed no radiculopathy. Furthermore, a May 2016 neurology evaluation noted that the Veteran does not have radiculopathy. Notwithstanding the evidence reflecting no current diagnosis of cervical radiculopathy, the Board notes that the Veteran’s VA treatment records note “cervical radiculopathy” under the ‘current problem list.” Although, listing a condition on the problem list does not constitute a current diagnosis, in an abundance of caution, the Board remanded to get another VA examination to confirm whether the Veteran has a diagnosis of cervical radiculopathy. Consequently, in a March 2020 VA examination report for neck conditions, the VA examiner opined that the Veteran does not have any radicular pain or and other signs or symptoms due to radiculopathy. The VA examiner did not find a diagnosis of cervical radiculopathy. In the associated medical opinion, the VA examiner noted that while the Veteran’s service treatment records document a motor vehicle accident, there was no report of neck pain at that time. Also, the VA examiner pointed out that the service treatment records are silent for neck complaints or treatment for the remainder of time in service. Given such, based on the May 2012 VA examination addendum, a March 2015 EMG, a May 2016 neurology evaluation, and the March 2020 VA examination report, which have all found that there is no diagnosis of cervical radiculopathy, the Board concludes that the Veteran does not have a current diagnosis of cervical radiculopathy and has not had a diagnosis associated with cervical radiculopathy at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Board has considered the Veteran’s assertions that he has a current diagnosis of cervical radiculopathy. However, the record does not reflect that he had the requisite training or expertise to offer a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). A medical diagnosis of cervical radiculopathy requires an internal medical process which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses, as is the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Thus, while the Veteran may contend that he has a current diagnosis, the Board finds that all the VA medical evidence and opinions taken together are highly probative as they are based on sufficient facts and data, a product of reliable principles and methods, and applied the principles and methods reliably to the facts of this case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Significantly, there is no contrary medical opinion. Although the Veteran does not have a formal diagnosis of cervical radiculopathy, the Board is cognizant of the holding in Saunders v. Wilkie, which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. 886 F.3d 1356, 1368 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. To the extent the Veteran noted that he has cervical pain, the evidence does not reflect the Veteran has cervical radiculopathy that caused functional impairment. As discussed above, the March 2020 VA examiner noted that the Veteran does not have any radicular pain or and other signs or symptoms due to radiculopathy. As such, Saunders is not applicable to his case. In light of the above, the Board finds that the probative evidence of record does not demonstrate that the Veteran has cervical radiculopathy, and it finds that the first element of service connection has not been met. In the absence of evidence of cervical radiculopathy, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223.225 (1992); 38 C.F.R. § 3.385 (2008) (for VA purposes, “impaired hearing will be considered to be a disability” only when hearing loss examination results reach certain auditory thresholds). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). The evidence must show that the Veteran currently has the disability for which benefits are being claimed. As such, the Veteran cannot establish direct or secondary service connection. Accordingly, the Veteran’s claim for cervical radiculopathy is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.