PERIPHERAL NERVE PARALYSIS

S. BUSH · 2026 · Case ID: A26031295

GRANTED

Summary

The veteran, who served in the U.S. Navy from November 2001 to October 2006, appealed the severance of service connection for bilateral upper extremity radiculopathy and the discontinuance of Dependents Educational Assistance (DEA) under Chapter 35. The Agency of Original Jurisdiction (AOJ) severed these benefits in August 2020, proposing the action in August 2019. The veteran submitted a Notice of Disagreement and elected a Hearing Review docket, later withdrawing the hearing request. The Board reviewed evidence available at the time of the AOJ's August 2020 decision. The veteran argued that the severance was improper because the original April 2019 grant of service connection for bilateral radiculopathies, based on secondary connection to cervical strain, was not clearly and unmistakably erroneous. VA's basis for severance was a June 2019 VA examiner's opinion finding insufficient evidence for radiculopathy without abnormal EMG and MRI findings, contradicting an earlier January 2019 VA examiner who found radiculopathy based on decreased sensation to light touch. The Board found that reasonable minds could differ on whether the original grant was CUE, as the January 2019 examiner's findings were not clearly and unmistakably erroneous. Therefore, service connection for both upper extremity radiculopathies was restored effective November 1, 2020. Similarly, the discontinuance of DEA was found improper because the restoration of service connection for the radiculopathies, which resulted in a 100 percent combined evaluation, meant the veteran still met the criteria for permanent total disability. Thus, DEA benefits were also restored effective November 1, 2020.

Rationale

VA proposed severance based on June 2019 examiner finding insufficient objective evidence.; January 2019 examiner found radiculopathy based on decreased sensation to light touch.; Board found reasonable minds could differ on CUE, thus VA did not meet burden to sever.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

201016-115132

Full Decision Text

Citation Nr: A26031295
Decision Date: 04/06/26 Archive Date: 04/06/26

DOCKET NO. 201016-115132
DATE: April 6, 2026

ORDER

The severance of service connection for right upper extremity radiculopathy effective as of November 1, 2020 was improper; service connection is restored effective as of November 1, 2020.

The severance of service connection for left upper extremity radiculopathy effective as of November 1, 2020 was improper; service connection is restored effective as of November 1, 2020.

The discontinuance of Dependents Educational Assistance (DEA) under 38 U.S.C. Chapter 35 effective as of November 1, 2020 was improper; the benefit is restored effective as of November 1, 2020.

FINDINGS OF FACT

1. The Department of Veterans Affairs (VA) has not met its burden to establish that the award of service connection for right upper extremity radiculopathy was clearly and unmistakably erroneous.

2. VA has not met its burden to establish that the award of service connection for left upper extremity radiculopathy was clearly and unmistakably erroneous.

3. VA has not met its burden to establish that the award of DEA under 38 U.S.C. Chapter 35 was clearly and unmistakably erroneous.

CONCLUSIONS OF LAW

1. The severance of service connection for right upper extremity radiculopathy was not proper; restoration is warranted. 38 U.S.C. § 5112(b)(6); 38 C.F.R. § 3.105(d).

2. The severance of service connection for left upper extremity radiculopathy was not proper; restoration is warranted. 38 U.S.C. § 5112(b)(6); 38 C.F.R. § 3.105(d).

3. The discontinuance of DEA under 38 U.S.C. Chapter 35 was not proper; restoration is warranted. 38 U.S.C. § 5112(b)(6), 5113; 38 C.F.R. § 3.105(e).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from November 2001 to October 2006.

In August 2020, the Agency of Original Jurisdiction (AOJ) severed service connection for both right upper extremity radiculopathy and left upper extremity radiculopathy; and discontinued DEA under 38 U.S.C. Chapter 35. In October 2020, the Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement), VA Form 10182, and elected the Hearing Review docket. On June 14, 2024, the Veteran withdrew his request for a Board of Veterans' Appeals (Board) hearing. See June 14, 2024 Notification Letter, p. 3. Given the Veteran's election of the Hearing Review docket and withdrawal of his Board hearing request, the Board may only consider the evidence of record at the time of the August 2020 AOJ decision, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal. 38 C.F.R. §§ 20.302(b), 20.704(e). If evidence was submitted either (1) during the period after the AOJ issued the August 2020 AOJ decision, and prior to the hearing withdrawal, or (2) more than 90 days following the hearing withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

1. The severance of service connection for right upper extremity radiculopathy effective as of November 1, 2020 was improper; service connection is restored effective as of November 1, 2020.

2. The severance of service connection for left upper extremity radiculopathy effective as of November 1, 2020 was improper; service connection is restored effective as of November 1, 2020.

The Veteran asserts that the severance of service connection for both right upper extremity radiculopathy and left upper extremity radiculopathy was not proper, as the April 2019 rating decision that granted service connection for both upper extremity radiculopathies was not based on a clear and unmistakable error. See October 2020 VA Form 10182. For the reasons outlined below, the Board agrees.

Service connection will be severed only where evidence establishes that that the award is clearly and unmistakably erroneous, with the burden of proof being on the Government
extremity radiculopathy effective as of November 1, 2020 was improper; service connection is restored effective as of November 1, 2020.

Service connection will be severed only where evidence establishes that that the award is clearly and unmistakably erroneous, with the burden of proof being on the Government. When?severance?of service connection is considered warranted, a rating proposing severance?will be prepared setting forth all material facts and reasons. The claimant will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38?C.F.R. §?3.105(d).

To establish that a grant of service connection was the product of clear and unmistakable error (CUE), VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. Allen v. Nicholson, 21?Vet. App.?54, 58?(2007); Stallworth v. Nicholson, 20?Vet. App.?482, 488 (2006). A clear and unmistakable error is one about which reasonable minds could not differ.?38?C.F.R. §?20.1403(a).

In determining whether service connection will be severed, VA must consider evidence that was generated after the original decision was made. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 38 U.S.C. § 5109A or 38 U.S.C. § 7111. Stallworth, 20 Vet. App. at 482 (a severance decision focuses-not on whether the original decision was clearly erroneous-but on whether the current evidence establishes that [service connection] is clearly erroneous).

In most respects, the CUE standard for?severing?service connection under §?3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38?C.F.R. §?3.105(a). Section 3.105(d) places at least as high a burden of proof on VA when it seeks to?sever?service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. Baughman v. Derwinski, 1?Vet. App.?563, 566?(1991).

Here, VA followed the proper due process procedural steps for severing service connection for both right upper extremity radiculopathy and left upper extremity radiculopathy. In August 2019, the AOJ proposed to sever service connection for both upper extremity radiculopathies. The Veteran was notified of this contemplated action and furnished detailed reasons for the proposed severance on August 21, 2019. He was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The August 2019 letter informed the Veteran that he had the opportunity for a predetermination hearing if the request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The Veteran submitted both additional evidence and a timely request for a pre-determination hearing, which was held on June 25, 2020.

In August 2020, the AOJ severed service connection for both right upper extremity radiculopathy and left upper extremity radiculopathy, effective November 1, 2020. Notice of this decision and his appeal rights were sent to the Veteran on August 13, 2020. The November 1, 2020, effective date of
Veteran that he had the opportunity for a predetermination hearing if the request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The Veteran submitted both additional evidence and a timely request for a pre-determination hearing, which was held on June 25, 2020.

In August 2020, the AOJ severed service connection for both right upper extremity radiculopathy and left upper extremity radiculopathy, effective November 1, 2020. Notice of this decision and his appeal rights were sent to the Veteran on August 13, 2020. The November 1, 2020, effective date of severance is greater than the last day of the month in which a 60-day period from the date of the August 2020 notice expired. Therefore, all due process requirements were met in the severance action. 38 C.F.R. § 3.105(d).

Thus, the remaining question is whether VA has met its burden of establishing that the award of service connection for both right upper extremity radiculopathy and left upper extremity radiculopathy was clearly and unmistakably erroneous.

In April 2019, VA granted service connection for both right upper extremity radiculopathy and left upper extremity radiculopathy under a theory of secondary service connection based on a January 2019 VA examiner's opinion that related both of the Veteran's upper extremity radiculopathies to his service-connected cervical strain. See April 12, 2019 Rating Decision - Narrative.

The August 2019 proposal to sever service connection for both upper extremity radiculopathies was based on VA's finding that the Veteran did not have a diagnosis of either upper extremity radiculopathy, as "exam dated January 22, 2019, and medical opinion dated June 10, 2019 ... your VA examiner opined that your bilateral upper extremity radiculopathy is not at least as likely as not proximately due to or the result of cervical strain" and "[i]t was further stated that a diagnosis of cervical radiculopathy cannot be made due to insufficient evidence." See August 19, 2019 Rating Decision - Narrative. In August 2020, the AOJ severed service connection for both upper extremity radiculopathies.

Service connection may be granted for a disability which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995).

Despite its non-binding nature, VA's Adjudication Procedures Manual (M21-1) contains guidance relevant to the adjudication of this matter. See Overton v. Wilkie, 30 Vet. App. 257 (2018); Healey v. McDonough, 33 Vet. App. 312 (2021); Wilson v. McDonough, 35 Vet. App. 75 (2021). The relevant M21-1 provision is as follows: "[e]lectromyography (EMG) results are required for evaluations of peripheral nerve disabilities unless there is a previous EMG test of record or the record contains sufficient clinical evidence to determine the extent of paralysis in the peripheral nerve;" "EMG studies are usually rarely required to diagnose specific peripheral nerve conditions in the appropriate clinical setting and, if EMG studies are not in the medical record and reflect the Veteran's current condition, repeat studies are not indicated;" "ultimately it is the role of the rating activity to determine if the examination was sufficient to confirm the question and extent of peripheral nerve involvement;" and "other clinical findings that may be sufficient to document a peripheral nerve disability include: sensation to light touch testing, deep tendon reflex testing, certain signs for the median nerve, trophic changes, gait testing, muscle strength testing, and the presence of muscle atrophy." See M21-1, V.iii.12.A.2.h.

The report of a September 2018 non-VA evaluation from J.C., D.O., states that "[the Veteran] has been my patient for several years;" "[he] has degenerative disc disease in the cervical spine as evidenced by MRI demonstrating a disc bulge at C5/C6;" and "[h]e reports chronic neck pain, achy, 7/10, worse with range of motion activity, occasional radicular symptoms to the arms." See January 14, 2019 Medical Treatment Record.

The report of a January
nerve, trophic changes, gait testing, muscle strength testing, and the presence of muscle atrophy." See M21-1, V.iii.12.A.2.h.

The report of a January 2019 VA cervical spine examination states that the Veteran reported "since [service separation], he has had chronic pain to the neck ever since, sharp pain, then dull constant ache to the neck area, this radiates to the bilateral hands." He was diagnosed with a cervical strain. Sensation to light touch testing showed "decreased" sensory in both right and left hand/fingers (C6-8). The examiner concluded that the Veteran had both right and left upper extremity radiculopathy of the "C5/C6 nerve roots (upper radicular group)." See January 22, 2019 C&P Exam.

In a June 2019 addendum, a different VA examiner concluded that: "there is insufficient evidence that the Veteran has cervical radiculopathy" as "in the absence of abnormal EMG and corresponding cervical spine MRI, the symptoms the Veteran described to [the January 2019 VA examiner] are subjective without objective findings;" "for radiculopathy in a given dermatome (area), there has to be a clearly defined nerve involvement, abnormal EMG, and corresponding abnormal MRI cervical spinal level;" and "without all of the above, a diagnosis of radiculopathy cannot be made." See June 10, 2019 C&P Exam.

In a July 2019 addendum, the above-noted June 2019 VA examiner concluded that: "the diagnostic, and clinical evidence does not support the aforementioned claims;" "there is clear evidence on imaging, EMG, and examination that would be contradictory to the claims;" "objective findings overrule any subjective complaints, especially in a situation like this, where the subjective complaints are quantifiable and verifiable by sophisticated tests, like the ones the Veteran has had." See July 15, 2019 C&P Exam.

A September 2019 statement from a VA staff physician states that: "this Veteran's bilateral radiculopathy, has the possibility and reason to believe is related to his military duty as he had an injury to his neck while serving in the military." See October 11, 2019 Medical Treatment Record.

The report of an October 2019 non-VA evaluation from J.C., D.O., states that: "[the Veteran] has been my patient for many years, and has suffered from chronic neck pain with bilateral cervical radiculopathy;" "he suffered a neck injury during military service in 2003, soon after which symptoms began;" "he reports having no imaging at that time;" and "this is consistent with the probability that the neck injury caused radicular pain in bilateral upper extremities and is related to his military service." See October 11, 2019 Medical Treatment Record.

At the June 2020 pre-determination hearing, the Veteran stated that: "[he has] radiculopathy;" "it is due to [his] neck condition;" "arms going numb and tingling" and "[he has] private treatment records to submit in support of [his] claim." See June 25, 2020 Hearing Testimony.

In a July 2020 addendum, the same VA examiner who provided both the June 2019 and July 2019 addendums, stated that: "[the] Veteran's civilian physician ... wrote a narrative on October 10, 2019;" "he simply reiterated what he was told by his patient, as it does not appear that he had factual medical information about the MRI or EMG;" "[i]t is not uncommon where physicians, who have a therapeutic relationship with a patient, to write an opinion in general terms, as seems to have been the case;" "[that] opinion carries little weight as it is not supported by medical evidence, just anecdotal information;" and "EMG and MRI are sensitive tests, and as previously stated, [the] Veteran's subjective complaints are not supported by objective findings." See July 1, 2020 C&P Exam.

As its basis for severance, VA found that: "[w]e received your private treatment records stating that you have radiculopathy due to your neck condition" and "however, the statements are not based on
medical information about the MRI or EMG;" "[i]t is not uncommon where physicians, who have a therapeutic relationship with a patient, to write an opinion in general terms, as seems to have been the case;" "[that] opinion carries little weight as it is not supported by medical evidence, just anecdotal information;" and "EMG and MRI are sensitive tests, and as previously stated, [the] Veteran's subjective complaints are not supported by objective findings." See July 1, 2020 C&P Exam.

As its basis for severance, VA found that: "[w]e received your private treatment records stating that you have radiculopathy due to your neck condition" and "however, the statements are not based on factual medical information from an MRI or an EMG." See August 5, 2020 Rating Decision - Narrative. This is not a claim of service connection to be evaluated as to whether the claim should be granted based upon a finding of an approximate balance of positive evidence; nor denied because the evidence is not in approximate balance between that favoring the claim and against the claim. In this matter, the standard to be employed is whether there is "clear and unmistakable evidence" of an error. Regarding the characteristics of clear and unmistakable evidence, the word "unmistakable" means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. Ed. 1988).

Although the VA examiner who provided the addendum opinions dated June 2019, July 2019, and June 2020 consistently stated that: "for radiculopathy in a given dermatome (area), there has to be a clearly defined nerve involvement, abnormal EMG, and corresponding abnormal MRI cervical spinal level;" and "without all of the above, a diagnosis of radiculopathy cannot be made," the January 2019 VA examiner found that the Veteran had both right and left upper extremity radiculopathy due to sensation to light touch testing that showed "decreased" sensory in both right and left hand/fingers (C6-8). The Board observes that the relevant M21-1 provision indicates that clinical findings, other than an EMG, that may be sufficient to document a peripheral nerve disability include sensation to light touch testing. As noted, the January 2019 VA examiner both conducted sensation to light touch testing that revealed "decreased" findings for both upper extremities, and diagnosed the Veteran with both right and left upper extremity radiculopathy. Thus, the evidence does not clearly and unmistakably show that the Veteran does not have a diagnosis of both right upper extremity radiculopathy and left upper extremity radiculopathy.

Here, reasonable minds could differ as to whether the rating decision that granted service connection for both right upper extremity radiculopathy and left upper extremity radiculopathy was both clearly and unmistakably erroneous. VA has therefore not met its burden of demonstrating CUE in the April 2019 rating decision that granted service connection for both upper extremity radiculopathies. Therefore, for reasons and bases outlined above, the severance of service connection for both right upper extremity radiculopathy and left upper extremity radiculopathy was improper; and the appeal to restore service connection is granted, effective from the date of severance on November 1, 2020.

3. The discontinuance of DEA under 38 U.S.C. Chapter 35 effective as of November 1, 2020 was improper; the benefit is restored effective as of November 1, 2020.

The Veteran asserts that the discontinuance of DEA under 38 U.S.C. Chapter 35 was not proper, as the April 2019 rating decision that granted DEA under 38 U.S.C. Chapter 35 was not based on a clear and unmistakable error. See October 2020 VA Form 10182. For the reasons outlined below, the Board agrees.

Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued
outlined below, the Board agrees.

Here, VA followed the proper due process procedural steps for discontinuing DEA under 38 U.S.C. Chapter 35. In August 2019, the AOJ proposed to discontinue DEA. The Veteran was notified of this contemplated action and furnished detailed reasons for the proposed discontinuance on August 21, 2019. He was given 60 days for the presentation of additional evidence to show that DEA should be maintained. The August 2019 letter informed the Veteran that he had the opportunity for a predetermination hearing if the request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The Veteran submitted both additional evidence and a timely request for a pre-determination hearing, which was held on June 25, 2020.

In August 2020, the AOJ discontinued DEA under 38 U.S.C. Chapter 35, effective as of November 1, 2020. Notice of this decision and his appeal rights were sent to the Veteran on August 13, 2020. The November 1, 2020, effective date of discontinuance is greater than the last day of the month in which a 60-day period from the date of the August 2020 notice expired. Therefore, all due process requirements were met in the discontinuance action. 38 C.F.R. § 3.105(e).

Thus, the remaining question is whether VA has met its burden of establishing that the award of DEA under 38 U.S.C. Chapter 35 was clearly and unmistakably erroneous.

In April 2019, VA granted DEA under 38 U.S.C. Chapter 35 effective as July 11, 2018 "as the evidence shows you currently have a total service-connected disability, permanent in nature." See April 12, 2019 Rating Decision - Narrative. The August 2019 proposal to discontinue DEA under 38 U.S.C. Chapter 35 was based on VA's finding that: "[i]t is proposed to discontinue eligibility to DEA due to error in evaluations of bilateral upper extremity radiculopathy and benefit criteria no longer being satisfied." See August 19, 2019 Rating Decision - Narrative. In August 2020, the AOJ discontinued DEA under 38 U.S.C. Chapter 35, effective as of November 1, 2020.

Basic eligibility for DEA exists if the Veteran: (1) was discharged from service under conditions other than dishonorable, or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or (if a serviceperson) (5) is on active duty as a member of the Armed Forces and (i) now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power; or (ii) has been determined by VA to have a total disability permanent in nature incurred or aggravated in the line of duty during active military, naval, air, or space service; is hospitalized or receiving outpatient medical care, services, or treatment for such disability; is likely to be discharged or released from such service for such disability; and the pursuit of a course of education by such individual's spouse or child for which benefits under 38 U.S.C. chapter 35 are sought occurred after December 22, 2006. 38 C.F.R. § 3.807(a).

As noted, the Board has restored service connection for both right and left upper extremity radiculopathy, effective as of November 1, 2020.
) has been determined by VA to have a total disability permanent in nature incurred or aggravated in the line of duty during active military, naval, air, or space service; is hospitalized or receiving outpatient medical care, services, or treatment for such disability; is likely to be discharged or released from such service for such disability; and the pursuit of a course of education by such individual's spouse or child for which benefits under 38 U.S.C. chapter 35 are sought occurred after December 22, 2006. 38 C.F.R. § 3.807(a).

As noted, the Board has restored service connection for both right and left upper extremity radiculopathy, effective as of November 1, 2020. Significantly, the restoration of service connection necessitates the restoration of the 20 percent rating for both right and left upper extremity radiculopathy, effective as of November 1, 2020, which also results in a 100 percent combined evaluation for compensation, effective as of November 1, 2020. See 38 C.F.R. § 4.25 Combined Ratings Table. This is not a claim of DEA under 38 U.S.C. Chapter 35 to be evaluated as to whether the claim should be granted based upon a finding of an approximate balance of positive evidence; nor denied because the evidence is not in approximate balance between that favoring the claim and against the claim. In this matter, the standard to be employed is whether there is "clear and unmistakable evidence" of an error. Regarding the characteristics of clear and unmistakable evidence, the word "unmistakable" means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. Ed. 1988).

Given the restoration of service connection for both right upper extremity radiculopathy and left upper extremity radiculopathy effective as of November 1, 2020, the evidence does not show clearly and unmistakably show that the Veteran does not have a permanent total service-connected disability, effective as of November 1, 2020.

Here, reasonable minds could differ as to whether the rating decision that granted DEA under 38 U.S.C. Chapter 35 was both clearly and unmistakably erroneous. VA has therefore not met its burden of demonstrating CUE in the April 2019 rating decision that granted DEA under 38 U.S.C. Chapter 35.

Therefore, for reasons and bases outlined above, the discontinuance of DEA under 38 U.S.C. Chapter 35 was improper; and the appeal to restore DEA under 38 U.S.C. Chapter 35 is granted, effective from the date of discontinuance on November 1, 2020.

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Cohen

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.

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