PERIPHERAL NERVE DISORDERS

Summary

The veteran served on active duty from January 1979 to August 1982. The veteran appealed the denial of service connection for bilateral upper and lower extremity radiculopathy, claimed as secondary to a cervical or thoracolumbar spine condition. During the appeal, the Department of Veterans Affairs Regional Office granted service connection for bilateral upper extremity radiculopathy. The Board of Veterans' Appeals (Board) allowed the appeal and granted service connection for the upper extremity claims. For the bilateral lower extremity radiculopathy claims, the Board reviewed the evidence. The veteran had not reported continuity of symptoms since service, and the first diagnosis of lumbar radiculopathy appeared in a September 2012 private treatment record, well after service. The Board noted that the veteran's lay contentions regarding the etiology of the neurological condition lacked probative value as it falls outside common lay knowledge. The Board found that the evidence persuasively weighed against a service connection, either directly or secondarily, for the lower extremity radiculopathy. Therefore, service connection for bilateral lower extremity radiculopathy was denied.

Rationale

AOJ granted service connection for bilateral upper extremity radiculopathy; Board allowed appeal and granted service connection

Full Decision Text

Citation Nr: A26026186
Decision Date: 03/24/26	Archive Date: 03/24/26

DOCKET NO. 210303-146468
DATE: March 24, 2026

ORDER

Entitlement to service connection for right upper radiculopathy as secondary to a cervical spine condition is granted.

Entitlement to service connection for left upper radiculopathy as secondary to a cervical spine condition is granted.

Entitlement to service connection for right lower radiculopathy as secondary to a thoracolumbar spine condition is denied.

Entitlement to service connection for left lower radiculopathy as secondary to a thoracolumbar spine condition is denied.

FINDINGS OF FACT

1. The evidence of record supports that the Veteran's right upper radiculopathy is related to service.

2. The evidence of record supports that the Veteran's left upper radiculopathy is related to service.

3. The Veteran's right lower radiculopathy is not secondary to any service-connected disability and is not otherwise related to an in-service injury or disease.

4. The Veteran's left lower radiculopathy is not secondary to any service-connected disability and is not otherwise related to an in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria for service connection for right upper radiculopathy are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for left upper radiculopathy are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for right lower radiculopathy due to service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

4. The criteria for service connection for left lower radiculopathy due to service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1979 to August 1982. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In the March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On August 19, 2022, the Veteran withdrew the hearing request.

Therefore, the Board may only consider the evidence of record at the time of the December 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801. 

Service connection

Service connection may be granted for a 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. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system,
; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. 

Service connection may also be established on a secondary basis for a disability that is due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection for a disability can be granted on a secondary basis if a Veteran has a (1) current disability; (2) a separate disability already subject to service connection; and (3) the first disability is proximately due to or the result of or is aggravated beyond its natural progress by the service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. Secondary service connection must be addressed in any decision when it has been reasonably raised by the record, i.e., in medical records or lay statements. Id. 

1. Entitlement to service connection for bilateral upper radiculopathy  

The Veteran is seeking entitlement to service connection for bilateral upper extremity radiculopathy. During the pendency of the appeal, the AOJ granted service connection for bilateral upper extremity radiculopathy in an April 2023 rating decision. As the benefit sought on appeal has already been granted, the Board will allow the appeal and grant service connection for these claims. 

2. Entitlement to service connection for bilateral lower radiculopathy  

The Veteran is seeking entitlement to service connection for bilateral lower extremity radiculopathy as secondary to a service-connected disability. For the reasons discussed below, the Board finds that entitlement to service connection for these claims is not warranted. 

First, the Board notes that the Veteran initially claimed lumbar radiculopathy for bilateral lower extremity as secondary to a thoracolumbar spine/back condition. See December 2019 VA Form 21-526EZ. However, the Veteran is not service connected for a thoracolumbar spine disability. As such, he does not have a separate disability already subject to service connection and does not meet the criteria for secondary service connection.  

Second, the Board has also considered whether service connection for bilateral lower extremity radiculopathy is warranted on a direct service connection basis. In the December 2020 rating decision, the AOJ favorably found that the Veteran's bilateral lower radiculopathy is a chronic disease which may be presumptively linked to service; other organic diseases of the nervous system can be service connected if diagnosed within a year; and the Veteran has sufficient service to meet the minimum requirements for presumptive service connection. The Board is bound by favorable findings by the AOJ. 38 C.F.R. § 3.104(c). 

Turning to the evidence of record, the Board finds that the Veteran has not reported continuity of bilateral lower extremity radiculopathy or any other neurological symptomatology since service or one year thereafter. 38 C.F.R. §§ 3.307, 3.309. The first diagnosis of lumbar radiculopathy is reflected in a September 2012 private treatment record, which is several years after service. 

The Board is cognizant of the Veteran's lay contentions that his bilateral lower radiculopathy is due to service or secondary to a service-connected disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428
 

Turning to the evidence of record, the Board finds that the Veteran has not reported continuity of bilateral lower extremity radiculopathy or any other neurological symptomatology since service or one year thereafter. 38 C.F.R. §§ 3.307, 3.309. The first diagnosis of lumbar radiculopathy is reflected in a September 2012 private treatment record, which is several years after service. 

The Board is cognizant of the Veteran's lay contentions that his bilateral lower radiculopathy is due to service or secondary to a service-connected disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428 (2011), as to the specific issue in this case, the etiology of a neurological condition, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, determining the diagnosis and etiology of the condition requires medical training and credentials. Thus, the Veteran's lay contentions lack probative value. Consequently, the Board need not remand this case for a VA examination and etiology opinion, as there exists no competent and probative evidence to support direct service connection and no reasonable likelihood that such would result in favorable findings. 

As such, the evidence of record persuasively weighs against finding that the Veteran's bilateral lower radiculopathy is related to service or secondary to a service-connected disability. Accordingly, the criteria for service connection on a direct or secondary basis are not met, and entitlement to service connection for bilateral lower extremity radiculopathy must be denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the evidence persuasively favors one side, the doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Khan, 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.