Citation Nr: 22019011 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 16-36 666 DATE: March 31, 2022 ORDER Entitlement to a separate rating for bilateral upper extremity radiculopathy secondary to service-connected disc disease of the cervical spine is denied. FINDING OF FACT The evidence of record does not support finding that the Veteran has a bilateral upper extremity radiculopathy disability. CONCLUSION OF LAW The criteria for entitlement to a separate rating for bilateral upper extremity radiculopathy secondary to service-connected disc disease of the cervical spine have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2010 to January 2013. By way of background, the Veteran's increased rating claim for disc disease of the cervical spine was remanded by the Board in October 2019 and August 2021. During the appeal, the issue of entitlement to a separate rating for bilateral upper extremity radiculopathy secondary to service-connected disc disease of the cervical spine was raised by the record. See August 2021 Board remand. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. In June 2019, the Veteran testified at a Board hearing conducted before a Veterans Law Judge (VLJ) who is no longer able to participate in the Veteran's appeal. A transcript of that hearing is of record. In February 2022, the Veteran was sent a letter offering him the opportunity to testify at a new hearing before a VLJ who would participate in the decision. See 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. The Veteran was provided 30 days to respond but did not do so. Accordingly, the Board will consider the appeal based on the evidence of record. Id. As a final initial matter, while additional evidence, to specifically include VA treatment records, was associated with the claims file after the issuance of the December 2021 supplemental statement of the case, the Board may adjudicate this matter without remand to the RO, as this evidence was not relevant to the issue before the Board or was duplicative of evidence previously of record. Entitlement to a separate rating for bilateral upper extremity radiculopathy secondary to service-connected disc disease of the cervical spine Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active-duty service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303 (a), 3.304. Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.) The Veteran contends that he is entitled to separate rating for bilateral upper extremity radiculopathy secondary to service-connected disc disease of the cervical spine. As discussed in more detail below, the evidence does not support his claim. In analyzing the claim, the threshold inquiry for the Board is whether the evidence supports finding that the Veteran has a current disability. Turning to the evidence of record, during an August 2019 VA examination, the Veteran reported dull burning pain that radiated down his bilateral arms and fingers. He reported severe bilateral upper extremity constant pain, severe paresthesias and/or dysesthesias of the right upper extremity, as well as moderate paresthesias and/or dysesthesias of the left upper extremity, and severe bilateral upper extremity numbness. The examiner noted that the Veteran's complaints of bilateral upper extremity symptomatology suggested a diagnosis of upper extremity radiculopathy; however, sensory was intact, strength was intact, there was no weakness, and the tests for the median nerve were negative. Therefore, the VA examiner was unable to render diagnoses for the reported symptomatology. The September 2020 VA examination report noted that upon sensory examination, the Veteran had decreased inner/outer forearm sensation and decreased hand/finger sensation. Testing noted moderate bilateral constant pain, moderate bilateral paresthesias and/or dysesthesias, and mild numbness. He had no other signs or symptoms of radiculopathy. The examiner found that the Veteran's bilateral upper extremities were not affected by radiculopathy; thus, no nerve roots were identified. Pursuant to the August 2021 Board remand directives, the Veteran was afforded another VA examination in November 2021. The Veteran reported increased sharp, shooting pain, numbness, tingling, and coldness in his fingers, that is worse with activity. However, upon physical examination, the Veteran showed normal muscle strength, normal reflexes, and normal sensation, as well as no muscle atrophy, of his bilateral upper extremities. The VA examiner also referenced an October 2020 EMG, which found the Veteran's bilateral upper extremities to be normal. Accordingly, she found that the Veteran does not have symptoms attributable to an upper extremity peripheral nerve condition. The August 2021 VA examiner explained that she is unable to confirm a current chronic diagnosis with current available records and/or physical examination. She noted that the Veteran's claims file is silent for diagnosis, treatment or management of bilateral upper extremity radiculopathy. Additionally, the objective physical examination was normal, and the Veteran's symptoms are subjective only. In further support of her medical opinion, the August 2021 VA examiner noted that the diagnosis of radiculopathy is usually confirmed by needle electromyography (EMG). An upper extremity electrodiagnostic study consists of nerve conduction studies (NCS) and a needle EMG examination of the muscles of the upper arm and neck. The veteran's subjective complaints of burning sensations down his bilateral arms and fingers are not supported by objective evidence during the August 2021 examination or his most recent EMG, conducted in October 2020, that was negative for bilateral upper extremity radiculopathy. No functional impairment was observed as due to the Veteran's subjective symptoms. Post service treatment records were also reviewed by the Board but fail to show a current diagnosis of bilateral upper extremity radiculopathy. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. While the Veteran is presumed competent to report on his current symptoms, to specifically include pain and burning sensations down his arms, there is no evidence that he possesses the necessary medical expertise to provide a competent opinion in this matter. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Veteran has been afforded multiple VA examinations. While the record confirms subjective complaints of pain, numbness, and tingling of the bilateral upper extremities, as well as decreased sensation documented during the September 2020 VA examination, the medical evidence, to specifically include an October 2020 EMG, does not confirm the presence of a persistent disability. Furthermore, the Veteran was physically examined in August 2019, September 2020, and August 2021 and all of the VA examiners were unable to render diagnoses for the reported symptomatology. Additionally, the VA examination reports did not show a related functional impairment of earning capacity. While the Board is sympathetic to the Veteran's subjective belief that he suffers from a disability manifested by pain, numbness, burning and tingling of the bilateral upper extremities as causally related to his service-connected neck disability, the evidence of record does not support his assertion. Accordingly, as the persuasive evidence weighs against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The criteria for entitlement to a separate rating for bilateral upper extremity radiculopathy secondary to service-connected disc disease of the cervical spine have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. B. Smith, 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.