Citation Nr: 0833809 Decision Date: 10/01/08 Archive Date: 10/07/08 DOCKET NO. 05-10 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a ganglion cyst of the right wrist. 2. Entitlement to service connection for a bilateral shoulder disability to include as secondary to a service- connected spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran served on active duty from May 1993 to December 1995 and from February 1997 to December 2001, with additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which reopened and denied service connection for bilateral shoulder pain and denied service connection for a right wrist ganglion cyst. In October 2007, the veteran testified before the undersigned at a personal hearing. In February 2008 the Board reopened the claim and remanded for additional development. The issue of entitlement to service connection for a bilateral shoulder disability is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The competent and probative medical evidence of record preponderates against a finding that the veteran's ganglion cyst of the right wrist either had its onset in service, preexisted service and was permanently worsened therein, or is proximately due to or the result of any service-connected disability. CONCLUSION OF LAW A ganglion cyst of the right wrist was not incurred in or aggravated by active service; nor is it secondary to a service-connected ganglion cyst of the left wrist. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 FR 23,353 (Apr. 30, 2008). Here, the RO sent correspondence in January 2004, March 2006, and February 2008; a rating decision in July 2004; and a statement of the case in January 2005. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. Although it does not appear that the veteran received notice of the regulation pertaining to service connection on a secondary basis prior to the final adjudication in May 2008, this lack of notice did not affect the essential fairness of the adjudication. Based on the veteran's testimony in October 2007 that included a discussion that the use of her right wrist was overcompensating for her service-connected left wrist, the Board requested a medical examination and opinion to include on a secondary basis. Thus, any defect was cured by actual knowledge on the part of the veteran. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in a supplemental statement of the case issued in May 2008. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination and opinion in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The veteran seeks service connection for a ganglion cyst of the right wrist. She contends that she had a right ganglion cyst in service that is due to service and was exacerbated by push-ups and sit-ups. The veteran also contends that she overcompensates with her right wrist due to her service- connected ganglion cyst of the left wrist disability. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). With chronic disease shown as such in service, or within a pertinent presumption period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology after discharge is required only where the condition noted during service or in the presumption period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). During the current appeal, the regulation pertinent to secondary service connection by aggravation was amended. Prior to October 10, 2006, when aggravation of a non-service- connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). 38 C.F.R. § 3.310 (2005). Effective October 10, 2006, a new paragraph was added to 38 C.F.R. § 3.310, clarifying the process by which such ratings are established. Specifically, when service connection is granted on a secondary basis, the rating specialist will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity from the current level. 38 C.F.R. § 3.310 (2007). Service connection may also be granted if the evidence shows that the condition was observed during service and continuity of symptomatology was demonstrated thereafter, and if the evidence includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); 38 C.F.R. § 3.303(b). To prevail on the issue of service connection, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). When a disability is not initially manifested during service or within an applicable presumption period, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred or aggravated during the veteran's service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). After careful review of the entire evidence of record, the Board finds that service connection for a ganglion cyst of the right wrist is not warranted. Service medical records are negative for complaints, findings, or diagnosis of a ganglion cyst of the right wrist. At an enlistment examination in March 1993, the veteran's upper extremities were clinically evaluated as normal. In the medical history accompanying the examination, she reported having had a cyst. Upon further exploration it was discovered that she had been told in the past she had an ovarian cyst with no special follow-up indicated. At an enlistment examination in December 1996, the veteran denied having or having had a growth or cyst. On examination, the clinical evaluation for her upper extremities was normal. In September 1998, the veteran was seen for left wrist pain of several days duration and a ganglion cyst was assessed. In the veteran's claim received in October 2003, she reported that she did not have a separation physical examination. Thus, the Board finds that a chronic ganglion cyst of the right wrist is not shown in service. While a ganglion cyst of the left wrist was shown, no ganglion cyst of the right wrist was shown during the veteran's active service. The report of an April 2002 Army Reserve examination shows a diagnosis of bilateral ganglia on extensor surface of wrists with left greater than right and periodically symptomatic. VA outpatient treatment records in March 2003 show ganglion cysts were noted on the back of both wrists. In April 2003, the veteran stated that they had been present for 5 to 6 years. VA medical records dated in May 2003 reflect that wrist ganglia had recurred. That medical evidence does not provide a link between a ganglion cyst of the right wrist and service or to the service-connected ganglion cyst of the left wrist. At a VA examination in April 2004, the veteran reported having ganglion cysts since 1998. On examination, it was noted that the veteran was right handed. Examination revealed a small ganglion cyst on the right wrist. The pertinent diagnosis was ganglion cyst of the right wrist. A medical opinion was not provided as whether the ganglion cyst of the right wrist disability was related to service or to a service-connected disability. A private x-ray in May 2004 shows a normal right wrist. A private medical physician wrote in October 2007 that the veteran had a ganglion cyst on her right wrist that was exacerbated by work and an ergonomic set-up would be of assistance. That medical evidence does not provide a link between a ganglion cyst of the right wrist and service or to the service-connected ganglion cyst of the left wrist. The veteran testified in October 2007 that her wrist trouble started in her first period of service because of the lifting she did and it was exacerbated during her second period by having to do push-ups and sit-ups. She testified that she went to the doctor in service for treatment. She further testified that she was overcompensating with her right wrist because of a similar problem with a ganglion on her left wrist which is service-connected. At a VA examination in March 2008, the veteran described her right wrist symptoms and related that her right wrist condition began approximately 10 years earlier at the same time as her left wrist condition. The diagnosis was a small ganglion of the right wrist with a history of being drained. After review of the claims file, an examination, and the veteran's history, the examiner opined that the ganglion of the right wrist based on objective evidence was less as likely as not incurred in or was aggravated as a result of her military service. The examiner further opined that the ganglion of the right wrist based on objective evidence was less likely as not due to or the result of her service- connected left wrist condition. The Board acknowledges the veteran's statements to the effect that her ganglion cyst of the right wrist is causally related to active service. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). As a layperson, however the veteran is not competent to provide an opinion requiring medical knowledge, such as a diagnosis, or an opinion relating to medical causation and etiology that requires a clinical examination by a medical professional. Routen v. Brown, 10 Vet. App. 183 (1997) (layperson is generally not capable of opinion on matter requiring medical knowledge); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In addition, although the veteran claims she sought treatment in service for a ganglion cyst of the right wrist, the service medical records do not reflect that treatment. Service medical records reflect complaints of left wrist pain and a diagnosis of a left wrist ganglion cyst in September 1998, but do not reflect complaints of right wrist pain or any similar diagnosis for the right wrist. Thus, the statements of the veteran are not competent medical evidence as to a nexus between her current ganglion cyst of the right wrist and her service or her service-connected ganglion cyst of the left wrist. The Board finds that the March 2008 VA medical report and opinion is of the greatest probative and persuasive value, in light of the VA examiner's having reviewed the entire claims folder, to include service medical records and post-service treatment records, and having conducted an examination of the veteran. Owens v. Brown, 7 Vet. App. 429 (1995) (the opinion of a physician that is based on a review of the entire record is of greater probative value than an opinion based solely upon the veteran's reported history). It appears that the VA examiner's opinion was based upon review of the claims file, the examination findings, and the application of sound medical judgment. The examiner concluded that based on objective evidence the ganglion of the right wrist was less as likely as not incurred in or was aggravated as a result of her military service, or due to or the result of her service- connected left wrist condition. In conclusion, having reviewed the complete record, the Board finds that the preponderance of the competent and probative evidence is against the appellant's claim of entitlement to service connection for a ganglion cyst of the right wrist. Although a ganglion cyst of the right wrist has been diagnosed, there is no probative, competent medical evidence of record linking the disability to service or to the service-connected ganglion of the left wrist. No probative, competent medical evidence exists of a relationship between a ganglion cyst of the right wrist and any continuity of symptomatology asserted by the appellant. McManaway v. West, 13 Vet. App. 60 (1999) (where there is assertion of continuity of symptomatology since service, medical evidence is required to establish a nexus between the continuous symptomatology and the current claimed condition); Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488 (1997). Accordingly, the Board finds that the competent and probative medical evidence of record preponderates against finding that a ganglion cyst of the right wrist is a result of service, an incident in service, or a service-connected disability. Thus, service connection is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a ganglion cyst of the right wrist is denied. REMAND Before addressing the merits of the claim for service connection for a bilateral shoulder disability to include as secondary to a service-connected cervical spine disability, the Board finds that additional development concerning that claim is required. The veteran's service medical records show complaints of shoulder pain which at times seem intertwined with complaints of upper back and neck pain. In April 1994 she had complaints of upper back pain and mild bilateral trapezius tenderness. In May 1994 when seen for complaints of upper back and neck pain, it was noted that the pain spread into the area between the shoulder blades. She complained of pain and pulling with scapula retraction and protraction. The assessment was mechanical neck and upper back pain. At a physical therapy consultation in November 1995, the veteran related that she had constant back pain since approximately February 1994 which had worsened. The main area of pain was between her shoulder blades, but her whole back hurt. Shoulder elevation was without pain or restriction. In April 1997, the veteran had complaints of back and shoulder pain for approximately five weeks. The impression was overuse. The veteran testified in October 2007 that after a neck injury approximately in 1998 she felt pain in her neck and shoulders. Service medical records show that in October 1998 she had complaints of upper back pain after falling out of a chair. An April 2004 VA examination report notes a history of neck pain as opposed to a problem with her shoulder joints. The veteran complained of mid-back pain that traveled to her scapula and into her shoulder blades. Examination of the shoulders was within normal limits without decreased range of motion. The examiner opined that she did not have shoulder pain, but had discomfort at the base of the neck. During a May 2005 VA examination of the neck and low back, she complained of constant and chronic neck pain that radiated to her shoulders. The diagnosis was cervical strain and a diagnosis of a shoulder disability was not provided. The Board previously remanded this issue to provide a medical examination and obtain a medical opinion regarding etiology of claimed bilateral shoulder pain to include as secondary to her service-connected cervical spine disability. The veteran was provided a VA medical examination in March 2008. Although the VA examiner concluded that the veteran's bilateral scapular pain was in the same general location as was reported in his review of the claims file and was as likely as not incurred during her military service, he was unable to find an objective etiology or diagnosis of the bilateral scapular pain. Thus, the medical evidence does not render plausible a claim that the complaints of pain in the bilateral shoulder constitute a medical disability for which service connection can be granted. The VA examiner opined that the veteran's mild scoliosis was less likely than not the etiology of the pain. However, the examiner did not address whether the bilateral scapular pain was due to or is the result of her service-connected cervical spine disability, or whether any thoracic spine disability causing shoulder pain might be service-connected. The veteran contends that the VA examiner did not provide an opinion as requested in the remand instructions and that the examiner's lack of a medical opinion is not a medical opinion. Thus, this case must be returned for further development. A remand for an etiological opinion and rationale is needed to address whether any current bilateral shoulder pain is due to an identified disability related to service or to a service-connected disability. Compliance by the Board or the RO with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA examination with a qualified physician who has not previously examined her, to provide an opinion as to the likely etiology of her bilateral shoulder pain. The examiner should review the claims folder and the examination report should reflect that review. The examiner should attempt to reconcile the opinion with all other opinions of record, if necessary. The rationale for all opinions must be provided. The reviewer should specifically provide the following opinions: a) Is there any bilateral shoulder disability currently present? b) If any shoulder disability is diagnosed, is it at least as likely as not that the shoulder disability was incurred in or aggravated by service? c) If any shoulder disability is diagnosed, is it at least as likely as not that the shoulder disability is due to or the result of the service-connected cervical and lumbosacral spine disabilities? d) If any shoulder disability is diagnosed, is it at least as likely as not that the shoulder disability is aggravated by the service- connected cervical and lumbosacral spine disabilities? e) If any shoulder pain is found to be a symptom of another disability, such as a thoracic or cervical spine disability, the examiner should so state. If any shoulder pain is due to a thoracic spine disability, the examiner should state whether it is at least as likely as not that any thoracic spine disability was incurred in or aggravated during the veteran's service. 2. Then, readjudicate the claim. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs