Citation Nr: 21028555 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-31 620 DATE: May 11, 2021 ORDER The appeal for service connection for left lower extremity radiculopathy as secondary to a service-connected lumbar spine disability is withdrawn and dismissed. The appeal for an initial rating greater than 10 percent for dermatitis of the hands, feet, elbows, and shins is withdrawn and dismissed. The appeal for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is withdrawn and dismissed. Service connection for left upper extremity radiculopathy as secondary to cervical spine degenerative disc disease (DDD) is granted. FINDINGS OF FACT 1. On March 8, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's attorney that a withdrawal of the appeal is requested for the following issues: secondary service connection for left lower extremity radiculopathy; an initial rating greater than 10 percent for dermatitis of the hands, feet, elbows, and shins; and entitlement to a TDIU. 2. The evidence of record is evenly balanced (50/50) as to whether the Veteran has left upper extremity radiculopathy proximately due to or the result of his service-connected cervical spine DDD. CONCLUSIONS OF LAW 1. The criteria have been met for withdrawal of an appeal by the Veteran's attorney for the issue of secondary service connection for left lower extremity radiculopathy. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria have been met for withdrawal of an appeal by the Veteran's attorney for the issue of an initial rating greater than 10 percent for dermatitis of the hands, feet, elbows, and shins. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria have been met for withdrawal of an appeal by the Veteran's attorney for the issue of entitlement to a TDIU. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria have been met for secondary service connection for left upper extremity radiculopathy. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1997 to June 2007 in the U.S. Marine Corps. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2012, July 2015, May 2016, and August 2020 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In September 2018 and February 2019, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board's remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a separate May 2020 Board decision, the Board denied increased ratings for left knee disabilities. This separate appeal was under a different docket number than the current appeal. In any event, the Veteran appealed the Board's May 2020 decision that denied increased ratings for the left knee to the United States Court of Appeals for Veterans Claims (Court). In a recent April 2021 Order, the Court vacated and remanded the Board's earlier decision for the left knee, pursuant to an April 2021 Joint Motion for Remand (Joint Motion). Upon return from the Court, a few weeks later in April 2021, the Board sent the Veteran a 90-day notice letter for a Court remand informing him that the case had been received by the Board from the Court. The Veteran was advised he had 90 days to submit additional argument or evidence with an indication as to whether he desired a remand for the AOJ to consider the evidence or whether he waived this right. See generally 38 C.F.R. § 20.1305 (2020). At the present time, the Board must wait for the full ninety days to pass before issuing a new Board decision in that particular matter. See Clark v. O'Rourke, 30 Vet. App. 92, 97 (2018). Thus, the increased rating issues for the left knee will not be adjudicated in the current Board decision. I. Dismissal of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. For a legacy appeal, 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. § 19.55 (2020) (formerly 38 C.F.R. § 20.204 (2018)). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55(a). In a March 8, 2021 letter from the Veteran's attorney, the Veteran expressed his desire for the appeal to be withdrawn for the following issues: secondary service connection for left lower extremity radiculopathy; an initial rating greater than 10 percent for dermatitis of the hands, feet, elbows, and shins; and entitlement to a TDIU. The Veteran explained in detail why he wanted these particular issues withdrawn. The Veteran's withdrawal of these issues complies with VA's requirements for withdrawal discussed under the provisions of 38 C.F.R. § 19.55(a)-(b). The Veteran has withdrawn the above issues on appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration for these issues. Accordingly, the Board does not have jurisdiction to review the appeal for these issues. It follows that they are dismissed. II. Secondary Service Connection (SSC) for Left Upper Extremity Radiculopathy The Veteran contends that he has radicular symptomatology in his left upper extremity associated with his service-connected cervical spine DDD. He points out that based on previous development requested by the Board, the AOJ has granted the Veteran service connection for radiculopathy in the right upper extremity secondary to his service-connected cervical spine DDD. The Veteran adds that since his neurological symptomology is virtually identical in both the right and left forearms and hands, with surgical interventions required for both in late 2020, he does not understand why the right upper extremity radiculopathy was service-connected, but the left upper extremity radiculopathy was not. See March 2021 attorney letter; May 2017 NOD (VA Form 21-0958). When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. However, in the present case, there is no probative evidence of record demonstrating left upper extremity radiculopathy beginning during the Veteran's period of active duty from 1997 to 2007. A disability can also be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). To be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred. Frost v. Shulkin, 29 Vet. App. 131, 138 (2017) (holding that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis). Moreover, secondary service connection may also be established, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In short, to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether secondary service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Upon review of the evidence of record, the Board grants the appeal for service connection for left upper extremity radiculopathy as secondary to the Veteran's service-connected cervical spine DDD. At present, the Veteran is service connected by VA for the underlying cervical spine DDD. This disability has been assigned a 10 percent rating under Diagnostic Code 5242 (degenerative arthritis of the cervical spine). See 38 C.F.R. § 4.71a. In addition, the Veteran is already service-connected for right upper extremity radiculopathy as secondary to his service-connected cervical spine DDD. See August 2020 rating decision. A 20 percent rating has been assigned for RIGHT upper extremity radiculopathy in combination with right carpal tunnel syndrome and right cubital tunnel for the right elbow under Diagnostic Code 8513 (incomplete paralysis of all radicular groups). See 38 C.F.R. § 4.124a. What's more, for the left upper extremity, the Veteran is already service-connected for left shoulder limitation of motion (20 percent disabling under Diagnostic Code 5201), left shoulder impingement syndrome (20 percent disabling under Diagnostic Code 5202), and left carpal tunnel syndrome (10 percent disabling under Diagnostic Code 8515 for the median nerve). The claims file contains a mix of favorable and unfavorable clinical evidence on whether the Veteran has a current diagnosis for left upper extremity radiculopathy that is proximately due to or the result of his service-connected cervical spine DDD. See 38 C.F.R. § 3.310(a); Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018). In this regard, the first and perhaps most fundamental requirement for either a direct or secondary service connection claim is proof the Veteran has a current disability. On this point, the Federal Circuit Court has held that pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Recently, the Court has further held that the Federal Circuit's decision in the Saunders case is not limited to pain within an orthopedic context only. Rather, the definition of "disability" in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) includes any "condition" that results in "functional impairment of earning capacity." Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020). With regard to the favorable evidence, private Davidson Chiropractic Clinic treatment records dated in August 2013, September 2013, November 2013, June 2014, September 2015, and October 2016 rendered diagnoses of cervicalgia with brachial (arm) neuritis or radiculitis or cervical radiculopathy. This was present in both arms. In addition, at an April 2019 VA electromyography (EMG) consult, a VA neurologist diagnosed the Veteran with carpal tunnel syndrome affecting the median nerve of both upper extremities. However, the VA neurologist added that this diagnosis did not fully explain the Veteran's symptoms of 4th and 5th digit numbness in both hands. The VA neurologist postulated that there were also "postural deficiencies" which can result in subtle irritation of the lower trunk of the brachial plexus, manifesting as intermittent thoracic outlet syndrome. On that point, thoracic outlet syndrome (TOS) is defined as a group of disorders that occur when there is "compression, injury, or irritation of the nerves and/or blood vessels (arteries and veins) in the lower neck." See https://my.clevelandclinic.org/health/diseases/17553-thoracic-outlet-syndrome-tos. Thus, there was an implication in this VA EMG report that a neurological compression of the nerves of the cervical spine was causing the symptoms of 4th and 5th digit numbness in both of the Veteran's hands. However, with regard to the unfavorable, negative evidence of record, there is some probative medical evidence that is against secondary service connection for the existence of left upper extremity cervical radiculopathy. 38 C.F.R. § 3.310(a). That is, VA cervical spine and peripheral nerve examinations dated in March 2016, July 2018, and October 2019, indicated there was no objective evidence of left upper extremity cervical radiculopathy, despite the Veteran's report of subjective radicular symptoms such as numbness, tingling, and pain. As currently codified, VA law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is an approximate balance of the positive and negative evidence on the issue of secondary service connection for left upper extremity cervical radiculopathy. Certain elements of both the positive and negative clinical evidence of record in this case are probative. The clinical evidence of record has respective flaws as well. But there is no apparent basis for wholly rejecting the favorable clinical evidence of record. In light of the contrasting, yet equally probative clinical evidence in the present case, in such situations, the benefit of the doubt is resolved in the Veteran's favor for left upper extremity cervical radiculopathy. In making this favorable determination for the Veteran, the Board has considered that evidence is rarely neat and tidy. As such, since the Veteran's right upper extremity radiculopathy has already been service-connected as secondary to his service-connected cervical spine DDD, a reasonable inference can be made that the Veteran has left upper extremity radiculopathy proximately due to his service-connected cervical spine DDD. See 38 C.F.R. § 3.310(a). This is especially true given the Veteran's competent and credible lay description of the same radicular symptoms in both the right and left upper extremities. The speculation that inheres in inference is not "bald" if the inference is made available to the fact finder by record facts, or even a single fact, viewed in the light of common sense and ordinary experience. So long as an inferential leap is tethered to the evidentiary record, the courts can accord deference to the finding. Cf. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 405 (2d. Cir. 2005). To the extent that the Board has made inferences and considered circumstantial evidence in its analysis of the evidence, this type of reasoning is well within the discretion of a fact finder. Although another fact finder may have declined to make the same inference, that does not mean that the Board in the present case is clearly erroneous. Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."). Accordingly, secondary service connection for left upper extremity radiculopathy is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). In implementing this award, the AOJ should award secondary service connection for left upper extremity radiculopathy on the basis that it is the direct result of the Veteran's service-connected cervical spine DDD, as opposed to aggravation. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.