Citation Nr: 22012536 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 15-19 906A DATE: March 4, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) has been withdrawn. Entitlement to service connection for a cervical spine condition, to include as secondary to a lumbosacral strain, is denied. Entitlement to service connection for an upper extremity (UE) condition, as secondary to a cervical condition, is denied. Entitlement to special monthly compensation (SMC) based on aid and attendance is granted subject to the laws and regulations governing monetary benefits. FINDINGS OF FACT 1. In April 2021 Correspondence, the Veteran (with the agreement of his agent) withdrew his appeal for a TDIU rating. The undersigned Veterans Law Judge is satisfied that this was an informed withdrawal. 2. The Veteran's cervical spine condition was not causally related to active service, was not caused or aggravated by his service-connected back disability, and did not manifest within one year of active service. 3. Because the Veteran's cervical condition is not related to service or the service-connected back condition, there is no service-connected condition for the upper extremity condition to be secondary to. 4. As a result of his service-connected disabilities, the Veteran needs regular aid and attendance to perform activities necessary for daily living. CONCLUSIONS OF LAW 1. The criteria have been met for withdrawal of an appeal by the Veteran (or his agent) of the claim for a TDIU rating. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 2. The criteria have not been met for service connection for a cervical spine condition. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria have not been met for service connection for an upper extremity condition. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria have been met for SMC based on aid and attendance or housebound status. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to December 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In January 2015, the Veteran disagreed with this decision. In March 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. This case was previously before the Board in March 2020 and April 2021 when it was remanded for additional development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). Withdrawal of Claim The appeal for a TDIU rating has been dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the decision being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board issues a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, in an April 2021 Correspondence, the Veteran (with the agreement of his agent) withdrew his appeal for a TDIU rating. The undersigned Veterans Law Judge is satisfied that this was an informed withdrawal, and, hence, there remain no allegations of errors of fact or law for appellate consideration concerning these issues. Accordingly, the Board does not have jurisdiction to review this appeal, and it is dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1101, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced-connected if they manifest to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for a cervical spine condition is denied. The Veteran contends that his cervical spine condition is related to active service, to include as due to his service-connected back condition. Factual Background In a May 2021 VA addendum opinion, the examiner opined that it was less likely than not that the Veteran's cervical condition was proximately due to or the result of his service-connected lumbar condition. The rationale was that medical literature establishes that cervical spondylosis is an aging related condition. The examiner explained that as people age, the bones and cartilage that make up the backbone and neck gradually develop wear and tear. These changes can include dehydrated disks, herniated disks, bone spurs, and stiff ligaments. The VA examiner noted that cervical spondylosis was a normal part of aging. Additionally, the VA examiner reported that medical literature established that cervical stenosis is caused by degeneration, or wear and tear, affecting the anatomical structures in the neck due to aging. Medical literature did not support that cervical spondylosis and stenosis could be caused by a lumbosacral strain and myositis. In a follow-up July 2021 VA opinion, the examiner opined that it was less likely than not that the Veteran's cervical condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that medical literature supports that the bones and cartilage that make up the backbone and neck gradually develop wear and tear. Cervical spondylosis is considered an aging related condition. The examiner noted that the Veteran was first diagnosed with cervical spondylosis and bilateral foraminal stenosis on a July 2020 x-ray, 49 years after separation from active service. The Veteran's service treatment records (STRs) are silent regarding any diagnosis, symptoms, or complaints of cervical spondylosis or foraminal stenosis. Additionally, there was no evidence of any manifestation or diagnosis of these conditions within a year after the Veteran separated from service. Finally, the VA examiner opined that it was less likely than not that the Veteran's cervical spondylosis and bilateral foraminal stenosis were aggravated beyond their natural progression by the service-connected lumbosacral strain and myositis. The rationale was that there was no objective evidence that the Veteran's cervical conditions had been aggravated by his back disabilities. According to the VA examiner, medical literature supports that the cervical condition is an aging related condition, and it followed its natural progression. Additionally, medical literature does not support that the service-connected lumbosacral strain and myositis could aggravate the Veteran's cervical spondylosis and foraminal stenosis. Analysis The Board has not overlooked the Veteran's statements about his cervical condition. While the Veteran is competent to observe his various neck symptoms, he does not have the training or credentials to provide a competent opinion as to the cause of his condition, whether it was related to active service, or was caused or aggravated by his already service-connected back disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the May 2021 and July 2021 VA opinions, determining that the Veteran's current cervical condition was not related to service, did not manifest to a compensable degree within one year of separation from service, and was not caused or aggravated by his service-connected back condition, to be the most probative evidence of record, as the examiners reviewed the claims file and provided detailed rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because of this, the objective medical findings and opinions provided by the May 2021 and July 2021 VA examiners have been accorded greater probative weight in determining that service connection is not warranted on either a direct or secondary basis. Based on the above analysis, the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and service connection for a cervical condition must be denied. 2. Entitlement to service connection for an upper extremity condition as secondary to a cervical condition is denied. The Veteran contends that his upper extremity condition is secondary to his cervical condition. The Board notes that the Veteran does not contend that his upper extremity condition is directly related to active service. Factual Background In a December 2020 VA examination report, the Veteran was diagnosed with clinical left cervical radiculopathy. The Veteran reported that he had upper extremity weakness and pain radiating into his left arm from his neck. He noted that he developed gradual onset of weakness in his left arm over the past two or three years. The Veteran denied any symptoms in his right upper extremity. Analysis Noted above, there are two requirements for service connection on a secondary basis: 1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran satisfies the first requirement of secondary service connection, a current disability. 38 C.F.R. § 3.310(a). In a December 2020 VA examination report, the Veteran was diagnosed with clinical left cervical radiculopathy. However, the Veteran does not meet the second requirement of secondary service connection. Because the Board is denying service connection for a cervical condition in this decision, there is no service-connected condition that proximately caused or aggravated the Veteran's radiculopathy. Id. The Board has not overlooked the Veteran's statements about his upper extremity condition. While the Veteran is competent to observe his various radiculopathy symptoms, he does not have the training or credentials to provide a competent opinion as to the cause of his condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the above analysis, the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and service connection for an upper extremity condition must be denied. Special Monthly Compensation Legal Criteria To establish entitlement to SMC based on the need for aid and attendance under 38 U.S.C. § 1114(l), the evidence must show that the Veteran experienced the anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden, or so helpless as a result of service-connected disability that he or she is in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To establish entitlement to SMC based on housebound status under 38 U.S.C. § 1114(s), the evidence must show that the Veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350(i). 3. Entitlement to special monthly compensation (SMC) based on aid and attendance is granted. Factual Background The Veteran seeks SMC based on the need for aid and attendance or on housebound status. According to the most recent March 2021 Rating Decision Codesheet, the Veteran is service-connected for an acquired psychiatric disorder, rated 50 percent effective April 15, 2013; cervicogenic headaches, rated 50 percent effective November 9, 2020; lumbosacral strain and myositis, rated 40 percent effective April 10, 2014; right lower extremity radiculopathy, rated 20 percent effective February 3, 2021; left lower extremity radiculopathy, rated 40 percent effective February 3, 2021; tinnitus, rated 10 percent effective April 10, 2014; bilateral hearing loss, rated noncompensable (0 percent) effective December 11, 1971; and erectile dysfunction, rated noncompensable effective January 27, 2015. In an August 2021 VA examination report for aid and attendance or housebound status, the examiner noted that the Veteran came in with his wife. The Veteran stated that his wife cooks, cleans, washes the clothes, and helped him with activities of daily living. He reported that he experiences poor balance, which caused him to use a walker for all activities. The Veteran stated that his wife drives him to all his medical appointments and to the supermarket. He reported that he stopped driving five years ago because of poor balance and episodes of dizziness related to his service-connected headache condition. The Veteran noted that the main conditions that limited his activities were his back pain and his radiculopathy in his legs that led to poor balance. The VA examiner noted that the Veteran was not permanently bedridden and was not currently hospitalized. The examiner reported that the Veteran could travel beyond his current house but only if he was being driven by someone else. The examiner noted that the Veteran used a four wheel walker. Additionally, the examiner noted that the Veteran had constant imbalance that affected his ability to ambulate. The Veteran was unable to dress or undress himself. The examiner concluded by opining that the Veteran was "housebound and in need of aid and attention." In an addendum August 2021 VA opinion, the examiner opined that "this Veteran merits aid and attendance due to his back condition since his back [range of motion] is very limited and physical security is affected during bathing, dressing, as well as when performing basic household chores..." This was caused by the Veteran's limited range of motion and his radiculopathy, "which can make him lose strength in his legs during performance of the above daily activities and household activities." Analysis Based on the August 2021 VA examination report and the August 2021 VA addendum opinion, the Board determines that the Veteran's service-connected back disability and bilateral lower extremity radiculopathy cause him to be helpless to such a degree that he is in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). (Continued on next page) Affording the Veteran the benefit of the doubt, SMC is warranted based on the need for aid and attendance. 38 U.S.C. § 5107(b). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.