PERIPHERAL NERVE DISORDERS

MELANIE J. MANN · 2026 · Case ID: A26040002

MIXED

Summary

The veteran, who served in the U.S. Army from September 1998 to December 2000, appeals the denial of service connection for right lower extremity radiculopathy and the remand of his claim for bilateral hearing loss. The veteran sought service connection for right lower extremity radiculopathy as secondary to a non-service-connected back condition. The Board denied this claim, finding that the veteran failed to present competent evidence of a current diagnosis of right lower extremity radiculopathy. While the veteran asserted a connection to his back condition, the Board noted he is a layperson and lacked the medical expertise to make such a determination. The Board also found that the primary disability, a back condition, was not service-connected. The Board did not address left lower extremity radiculopathy as it was not properly before them. The claim for bilateral hearing loss was remanded because the VA failed to provide adequate notice of a scheduled examination and did not attempt to reschedule it after the veteran was marked as a no-show. The Board found this to be a pre-decisional duty to assist error. The case was remanded for a new VA examination to determine the nature and etiology of the bilateral hearing loss, including whether it is related to in-service noise exposure.

Rationale

No competent evidence of current right lower extremity radiculopathy diagnosis; Lay assertions not sufficient for medical determination; Primary disability (back condition) not service-connected

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250512-543272

Full Decision Text

Citation Nr: A26040002
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 250512-543272
DATE: April 29, 2026

ORDER

Entitlement to service connection for right lower extremity radiculopathy is denied.

REMANDED

Entitlement to service connection for bilateral hearing loss is remanded.

FINDING OF FACT

A current diagnosis of right lower extremity radiculopathy is not shown.

CONCLUSION OF LAW

The criteria for entitlement to service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from September 1998 to December 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2025 rating decision and a January 2025 higher-level review rating decision issued by a Department of Veterans Affairs (VA) Regional Office.

In the May 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, for the issue of entitlement to service connection for right lower extremity radiculopathy, the Board may only consider the evidence of record at the time of the April 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. For the issue of entitlement to service connection for bilateral hearing loss, the Board may only consider the evidence of record at the time of the March 2024 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. For the issue of entitlement to service connection for right lower extremity radiculopathy, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of entitlement to service connection for bilateral hearing loss, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii).

The Board notes that although the Veteran sought to appeal the issue of entitlement to service connection for left lower extremity radiculopathy from a January 2025 higher-level review rating decision the in the May 2025 VA Form 10182, the issue of entitlement to service connection for left lower extremity radiculopathy is not addressed in any January 2025 rating decisions in the claims file. Moreover, there is no rating decision issued within the year prior to the May 2025 VA Form 10182 that addressed the issue of entitlement to service connection for left lower extremity radiculopathy. Consequently, the Board will not address the issue of entitlement to service connection for left lower extremity radiculopathy any further.

Additionally, the Board notes that the Veteran submitted a VA Form 20-10206 Freedom of Information or Privacy Act Request in March 2026. However, as the Veteran requested information specifically pertaining to a rating reduction, which is not part of the current appeal, the Board finds that proceeding with adjudication of this appeal prior to the completion of the VA Form 20-10206 request will not cause any negative impact to the Veteran or this appeal.

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or
2026. However, as the Veteran requested information specifically pertaining to a rating reduction, which is not part of the current appeal, the Board finds that proceeding with adjudication of this appeal prior to the completion of the VA Form 20-10206 request will not cause any negative impact to the Veteran or this appeal.

Service Connection

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, No. 2022-1239 (Fed. Cir. March 8, 2023) (invalidating the requirement of "proximate cause" and instead holding that "but for" causation or aggravation is enough to show entitlement to secondary service connection).

The Federal Circuit recently held that requiring "proximate cause" in secondary service connection appeals is a stricter standard than the "but-for cause" standard in 38 U.S.C. § 1110, and is, therefore unlawful. Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection). In other words, the but-for causation standard is not limited to a single cause and effect, but rather contemplates multi-causal links, including action and inaction. The "but-for" causation standard is broader than the proximate cause evidentiary standard.

The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App.?428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34.

The requirement that a current disability exists is satisfied if the Veteran had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). See also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency).

In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit essentially found that pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis.

A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly
a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis.

A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

Entitlement to service connection for right lower extremity radiculopathy is denied.

The Veteran is seeking service connection for right lower extremity radiculopathy. Specifically, he his seeking service connection as secondary to his non-service-connected back condition.

The Board finds that the threshold element of the claim for service connection, i.e., a current disability, has not been met. In this regard, the Veteran has not presented competent evidence showing he currently has right lower extremity radiculopathy. That is, there is no competent evidence of a right lower extremity radiculopathy diagnosis from the date of this claim and during the pendency of the appeal.

A careful review of the private and VA medical records revealed no complaints, treatment, or diagnosis of right lower extremity radiculopathy. The Board notes that while there is an October 2021 VA medical record notes that the Veteran sought treatment for bilateral leg numbness with pain the radiated down the leg after he fell off a ladder in August of the same year, this treatment was received approximately two years prior to the date VA received the claim on appeal and there is no evidence in the claims file that the Veteran continued to receive treatment for this condition at any time during the period on appeal.

While the Board acknowledges the Veteran's lay assertions and his belief that he has right lower extremity radiculopathy that is related to his back condition, he is a lay person, and under the facts of this case, is not shown to possess the necessary medical knowledge and expertise to make such determination. See Jandreau, supra.

The Board concludes that the Veteran has not presented competent evidence showing that that he has a current diagnosis of right lower extremity radiculopathy during the pendency of the appeal. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim).

Additionally, the claimed primary disability of a back condition is not service connected.

Direct service connection has not been argued or raised by the record. The Veteran has not asserted that his right lower extremity radiculopathy is due to any event, injury, or disease during active service (other than as related to his back condition). Therefore, a direct theory will not be further addressed at this time.

Because the evidence is persuasively against the claim for service connection, the benefit-of-the-doubt rule does not apply, and the appeal is denied.

REASONS FOR REMAND

Entitlement to service connection for bilateral hearing loss is remanded.

The Veteran is seeking service connection for bilateral hearing loss. Specifically, he asserts that it is related in-service exposure to hazardous noise.

In a March 2024 rating decision, the AOJ favorably found that the Veteran had a qualifying event, injury, or disease that had its onset during his service. His service treatment record includes an audiogram dated September 25, 1998, which showed mild hearing loss and that he was routinely exposed to hazardous noise. The Board is bound by the AOJ's favorable findings under the Appeals Modernization Act (AMA). 38 C.F.R. § 3.104(c).

Thus, the only remaining inquiries are whether the Veteran has a current bilateral hearing loss disability and, if so, whether the Veteran's current bilateral hearing loss had its onset during service or is etiologically related to the hazardous noise he was exposed to during service.

A review of the claims file indicates that a VA contract examination scheduling request was made on October 11, 2023. This scheduling request appears to be an internal VA request form. The file does not contain
September 25, 1998, which showed mild hearing loss and that he was routinely exposed to hazardous noise. The Board is bound by the AOJ's favorable findings under the Appeals Modernization Act (AMA). 38 C.F.R. § 3.104(c).

A review of the claims file indicates that a VA contract examination scheduling request was made on October 11, 2023. This scheduling request appears to be an internal VA request form. The file does not contain any written correspondence of phone calls from the contractor or the AOJ notifying the Veteran of the date, time, and place of this scheduled examination. Rather, the next notation regarding the examination is December 18, 2023, reflecting that the examination did not take place and that the Veteran was a "No Show."

Upon review, the Board finds that the AOJ committed a pre-decisional duty to assist error in adjudicating the Veteran's claim without attempting to reschedule the VA contract examination. 38 C.F.R. § 20.802(a). The record does not show that the Veteran received adequate notice of the scheduled examination for his claimed bilateral hearing loss. Nor does the record reflect that the AOJ developed the record as to good cause for failure to report or made any attempts to reschedule the examination. Corrective action via remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. 3.159.

The matter is REMANDED for the following action:

Reschedule the Veteran for a VA examination with a qualified clinician to determine the nature and etiology of his claimed bilateral hearing loss. The AOJ must document all efforts to schedule the examination and associate such documentation with the claims file. The actual scheduled examination information must be sent to the Veteran and his representative.

After reviewing the claims file and conducting the examination, the examiner is asked to address the following:

(a) Identify whether the Veteran has bilateral hearing loss for VA purposes under 38 C.F.R. § 4.85.

(b) If the Veteran is found to have bilateral hearing loss for VA purposes under 38 C.F.R. § 4.85, the examiner is asked to opine as to whether the Veteran's current hearing loss had its onset in active service or is otherwise etiologically related to his service, to include as to due to conceded in-service exposure to hazardous noise.

A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made.

Melanie J. Mann

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Fairlie, E.

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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