Citation Nr: A25017167 Decision Date: 02/26/25 Archive Date: 02/26/25 DOCKET NO. 231212-399296 DATE: February 26, 2025 ORDER Entitlement to service connection for cervical radiculopathy/neuritis, left elbow and wrist (cervical radiculopathy) is granted. FINDING OF FACT The Veteran's cervical radiculopathy had its onset in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for cervical radiculopathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a); 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1984 to February 2010, with service in Southwest Asia. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2023 Higher-Level Review rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran timely appealed, submitting a VA Form 10182 the next month and selecting the Direct Review docket. In the Direct Review docket, the Board reviews the evidence of record at the time of the AOJ rating decision on appeal for each issue, although the Board notes, that in this particular case, the rating decision on appeal noted that the evidentiary record closed as of the date of its prior decision, or June 2023, and the Board abides by that same date. Accordingly, no additional evidence after the June 2023 rating decision may be considered. 38 C.F.R. § 20.301. Entitlement to service connection for cervical radiculopathy is granted. The Veteran asserts that he has experienced pain running down his left arm since he served on active duty and that he believes that his radiculopathy is related to his service-connected cervical spondylosis. See April 2020 VA Form 21-4138. 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, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by a service-connected disability. 38 C.F.R. §§ 1110, 1131. Establishing secondary service connection requires (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) nexus evidence establishing a connection between the current disability and the service-connected disability. 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 a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. An approximate balance of the evidence includes but is not limited to equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. Id. Here, there is a question as to whether or not the Veteran has a current disability. Specifically, the February 2020 VA examiner notes that there is no radiculopathy, while the October 2020 VA examiner provides a diagnosis of cervical degenerative disc disease/degenerative joint disease, with left upper extremity radiculopathy and foraminal stenosis. A November 2020 VA examiner notes that there is no radiculopathy and a November 2021 VA examiner notes that the Veteran denies any pain the left arm from his neck and essentially states that there is no evidence of cervical radiculopathy/neuritis of his upper extremities. A June 2022 VA examination revealed median nerve incomplete paralysis. Incomplete paralysis of the ulnar nerve was shown on that examination as well, but the examiner attributed that nerve to the Veteran's service-connected left cubital tunnel. Finally, a June 2023 VA examiner noted the Veteran did not have radiculopathy. Certainly not to be discounted is Veteran's report of pain running down his left arm. See April 2020 VA Form 21-4138. Based on the aforementioned, the Board finds that the record is at least in equipoise as to the whether the Veteran has a current disability of cervical radiculopathy. Accordingly, the benefit of the doubt shall be given to the Veteran and the Board finds that the Veteran does have a current disability of cervical radiculopathy. Thus, element one of service connection is met. Regarding element two, the Veteran reported radicular pain during active service and there is documentation of an indication of a diagnosis of cervical radiculopathy during active service located in the service treatment records (STRs). See April 2020 VA Form 21-4138; October 2007, January 2008, and July 2009 STRs. Moreover, the Veteran is service connected for cervical spondylosis. Thus, element two of service connection is met. The only probative and competent opinion of record is from the October 2020 examiner who opined that the Veteran's radiculopathy was found on examination, which was due to further deterioration of the spine secondary to mechanical stress causing the Veteran's cervical degenerative disc disease and stenosis and indicating that the cervical radiculopathy is proximately related to the Veteran's service-connected cervical disability. See 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 at the discretion of the fact finder."). Moreover, the Board finds that the Veteran is competent to report that his in-service radicular pain has not resolved and is currently symptomatic. Finally, the other opinions of record are of no probative value as these opinions do not account for the Veteran's conceded current cervical radiculopathy. Accordingly, the Board finds that the third element is met and service connection for a cervical radiculopathy/neuritis, left elbow and wrist is established. 38 C.F.R. §§ 3.303(a); 3.310(a). The Veteran's appeal is GRANTED. JIMMY L. BARDIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.