Case A26039279

MICHELLE L. KANE · 2026 · Case ID: A26039279

MIXED

Summary

The veteran, who served from September 1988 to October 1996, with multiple subsequent periods of service concluding in March 2016, appeals the denial of service connection for bilateral upper extremity peripheral neuropathy and seeks higher disability ratings for cervical spine degenerative arthritis with IVDS, lumbar spine IVDS with degenerative disc disease, and bilateral knee conditions, as well as a compensable rating for sinusitis. During a January 2025 hearing, the veteran withdrew the appeals for higher ratings for the cervical spine, lumbar spine, bilateral knees, and sinusitis. The Board dismissed these withdrawn issues. The veteran also sought service connection for chronic laryngeal papillomatosis. While this issue was not initially appealed, the Board found a waiver of the procedural defect due to testimony taken at the hearing and the lack of objection from the Veterans Law Judge. The Board found the evidence in equipoise regarding the laryngeal papillomatosis, resolving reasonable doubt in the veteran's favor and granting service connection. For bilateral upper extremity peripheral neuropathy, the Board denied service connection, concluding the evidence persuasively weighed against a current diagnosis of the condition, noting the veteran's lay contentions were not competent medical evidence and that neither VA nor private treatment records contained the diagnosis. The Board found the evidence weighed against a current disability, making the doctrine of reasonable doubt inapplicable.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200806-103670

Full Decision Text

Citation Nr: A26039279
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 200806-103670
DATE: April 28, 2026

ORDER

Entitlement to a disability rating in excess of 20 percent for degenerative arthritis, cervical spine with intervertebral disc syndrome (IVDS) is dismissed.

Entitlement to a disability rating in excess of 20 percent for intervertebral disc syndrome with L5-S1 degenerative disc disease of the lumbar spine is dismissed.

Entitlement to a disability rating in excess of 10 percent for left knee condition is dismissed.

Entitlement to a disability rating in excess of 10 percent for right knee condition is dismissed.

Entitlement to a compensable rating for sinusitis is dismissed.

Entitlement to service connection for chronic laryngeal papillomatosis is granted.

Entitlement to service connection for right upper extremity peripheral neuropathy is denied.

Entitlement to service connection for left upper extremity peripheral neuropathy is denied.

FINDINGS OF FACT

1. During the January 2025 Board hearing, the Veteran, with his representative, withdrew his appeals for higher disability ratings for a cervical spine disability, low back disability, bilateral knee disability, and sinusitis.

2. The probative evidence is at least at relative equipoise as to whether the Veteran's chronic laryngeal papillomatosis is related to benign laryngeal papillomas during his active service.

3. The evidence of record persuasively weighs against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral upper extremity peripheral neuropathy.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for a disability rating in excess of 20 percent for degenerative arthritis, cervical spine with IVDS have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for withdrawal of the appeal for a disability rating in excess of 20 percent for intervertebral disc syndrome with L5-S1 degenerative disc disease of the lumbar spine have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for withdrawal of the appeal for a disability rating in excess of 10 percent for left knee condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

4. The criteria for withdrawal of the appeal for a disability rating in excess of 10 percent for right knee condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

5. The criteria for withdrawal of the appeal for a compensable rating for sinusitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

6. The criteria for entitlement to service connection for chronic laryngeal papillomatosis have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303.

7. The criteria for service connection for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

8. The criteria for service connection for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1988 to October 1996, February 1997 to May 1997, June 1998 to January 1999, December 2001 to October 2002, March 2003 to September 2003, and May 2012 to March 2016.

The Appeals Modernization Act (AMA) applies to this matter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2020 rating decision and June 2020 statement of the case (SOC) by the Agency of Original Jurisdiction (AOJ).

In August 2020, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal) and elected the Hearing Lane docket. The Veteran testified before the undersigned Veterans Law Judge at
to May 1997, June 1998 to January 1999, December 2001 to October 2002, March 2003 to September 2003, and May 2012 to March 2016.

In August 2020, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal) and elected the Hearing Lane docket. The Veteran testified before the undersigned Veterans Law Judge at a January 2025 hearing. The transcript of the January 2025 hearing is of record. The Veteran submitted private medical records and a private opinion within the 90-day evidentiary window in April 2025.

The Board notes that the June 2020 SOC denied the issue of entitlement to service connection for laryngeal papilloma condition. In the August 2020 VA Form 10182, the Veteran did not appeal that issue. However, during the January 2025 Board hearing, the undersigned Veterans Law Judge took testimony related to the issue of entitlement to service connection for laryngeal papilloma condition.

In Hall v. McDonough, 34 Vet. App. 329 (2021), the Court found that determinations about the validity of a notice of disagreement are not jurisdictional in nature, but rather relate to claims processing rules as a type of procedural defect, that may be waived at the Board's discretion. Moreover, a procedural defect may be subject to waiver by the AOJ. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (explaining that substantive and procedural development was sufficient to amount to waiver of any objection to timeliness); see also Ferko v. McDonough, 37 Vet. App. 262 (2024).

Notwithstanding that the Veteran did not appeal the issue of entitlement to service connection for laryngeal papilloma condition, the Board finds that there has been a waiver of the procedural defect in this case. The Board finds this case is similar to Percy. At the Board hearing, the Veterans Law Judge took testimony on the issue and did not raise a procedural defect. It is reasonable to find that the Board hearing led the Veteran into thinking that the issue would be considered on the merits by the Board. Thus, the Board will waive any objections regarding the procedural defect.

Dismissal

1. Entitlement to higher disability ratings for a cervical spine disability, low back disability, bilateral knee disability, and sinusitis are dismissed.

The Veteran testified before the undersigned Veterans Law Judge in January 2025. During the Board hearing, prior to the promulgation of a decision, the Veteran, with his representative, explicitly, unambiguously, and with a full understanding of the consequences withdrew his appeal for higher disability ratings for a cervical spine disability, low back disability, bilateral knee disability, and sinusitis. The undersigned Veterans Law Judge clearly identified the withdrawn issues, and he affirmed that he was requesting a withdrawal as to the issues. In addition, the undersigned discussed the consequences of withdrawing an appeal, and he expressed that he fully understood those consequences. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018).

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination 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 promulgates a decision. 38 C.F.R. § 20.205. As no allegations of error of fact or law remain for appellate consideration, the Board does not have jurisdiction to review the issues of higher disability ratings for a cervical spine disability, low back disability, bilateral knee disability, and sinusitis and they are dismissed.

2. Entitlement to service connection for chronic laryngeal papillomatosis is granted.

Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir
knee disability, and sinusitis and they are dismissed.

2. Entitlement to service connection for chronic laryngeal papillomatosis is granted.

The Veteran seeks entitlement to service connection for chronic laryngeal papillomatosis. During the January 2025 Board hearing, the Veteran testified that he started getting papilloma in his larynx during service and he believes his chronic laryngeal papillomatosis are related to his in-service papillomas. He further testified that he gets treated between six months to a year to have the papillomas removed.

A March 2025 private treatment record, received April 2025, reflects that the Veteran has a current diagnosis of chronic laryngeal papillomatosis. The Veteran's service treatment records reflect that the Veteran was treated for larynx polyps multiple times during his active service, to include in April 2013 and February 2016. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim.

The Veteran was provided a VA examination in September 2016. The VA examiner reviewed the record, interviewed the Veteran, and conducted an in-person examination. The VA examiner noted that upon examination, there was no evidence of papilloma. The Board affords this examination no probative weight. The VA examiner did not address the Veteran's reports that he has polyps removed every six months to a year.

The Veteran submitted a March 2025 private opinion. The private physician noted that he has treated the Veteran since 2021 and has performed three surgical procedures to remove laryngeal papillomas from his vocal folds. The private physician noted that the Veteran's medical history and documentation indicate that he has been suffering from recurrent laryngeal papillomas since at least 2008 and experiences a recurrence of papillomas approximately every 6 to 8 months, requiring surgical removal.

After considering the evidence, the Board finds that the evidence is in equipoise and, resolving reasonable doubt in favor of the Veteran, service connection is warranted for chronic laryngeal papillomatosis. The Veteran's service treatment records reflect that the Veteran was treated for polyps on several occasions during his active service. Additionally, the Board finds that his testimony, the private physician opinion, and the other supporting lay statements are credible evidence of onset. Accordingly, the Board finds that service connection is warranted for chronic laryngeal papillomatosis, and the claim is granted.

3. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is denied.

The Veteran seeks entitlement to service connection for bilateral upper extremity peripheral neuropathy. During the January 2025 Board hearing, the Veteran testified that he believes he has bilateral upper extremity peripheral neuropathy related to injuries he received as a flight instructor during active service.

As noted above, service connection requires the existence of a current disability. The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The initial threshold question for the Board is whether the Veteran has a current disability, and if so, whether that disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis related to bilateral upper extremity peripheral neuropathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; Romanowsky, 26 Vet. App. at 294 (2013
App. 223, 225 (1992).

Prior to the June 2020 SOC on appeal, the Veteran received VA and private medical treatment. The medical treatment records do not reflect treatment or complaints related to bilateral upper extremity peripheral neuropathy. The Veteran was provided VA neck conditions examinations in October 2016 and September 2019. The VA examiners noted that the Veteran does not have bilateral upper extremity peripheral neuropathy.

The Board acknowledges the Veteran's contention that he has bilateral upper extremity peripheral neuropathy that is etiologically attributable to his active service. The Veteran, as a lay person, is not competent to diagnose a particular disability. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Diagnosing such a disability requires knowledge of particular disabilities and the appropriate diagnostic testing for those disabilities. The Veteran has not been shown to possess the medical expertise or knowledge to diagnose bilateral upper extremity peripheral neuropathy. Therefore, his contentions do not constitute competent evidence of a current service-connectable disability related to bilateral upper extremity peripheral neuropathy.

The Board notes that during the January 2025 Board hearing, the Veteran reported that he continues to have bilateral shoulder pain. The Veteran is currently service-connected for bilateral shoulder arthroscopy with posterior labral slap repair.

Additionally, the Veteran submitted private treatment records in April 2025. The private treatment records reflect that the Veteran complained of bilateral shoulder pain. He further reported bilateral upper extremity radiating pain, numbness, and tingling. The private physician noted a diagnosis of cervical spondylosis without radiculopathy or myelopathy. The private treatment records submitted in April 2025 do not contain a diagnosis of bilateral upper extremity peripheral neuropathy.

In view of the foregoing, the Board concludes that the evidence of record persuasively weighs against finding that the Veteran has had bilateral upper extremity peripheral neuropathy at any time during or proximate to the pendency of the claim. As noted above, in the absence of proof of a current disability, there can be no valid claim for entitlement to service connection. Brammer, 3 Vet. App. at 225. Because the evidence persuasively weighs against a finding that there is a current disability, the doctrine of reasonable doubt is not for application, and the claims are denied.

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board LeMoine, Brian

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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