Citation Nr: 0937395 Decision Date: 10/01/09 Archive Date: 10/14/09 DOCKET NO. 07-32 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a bilateral shoulder disability, claimed as secondary to service- connected cervical spine disability. 2. Entitlement to service connection for bilateral carpal/cubital tunnel syndrome, claimed as secondary to service-connected cervical spine disability. 3. Entitlement to service connection for an ulnar nerve condition of both elbows, claimed as secondary to service- connected cervical spine disability. 4. Entitlement to an earlier effective date for the grant of a 30 percent rating for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from January to December 1986 and from April to December 2002. He also served on active duty training (ACDUTRA) with the Rhode Island National Guard. These matters come before the Board of Veterans' Appeals (Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In December 2002, the RO denied the Veteran's claim for service connection for a bilateral shoulder condition, which he had claimed as pain in both shoulders. In April 2004, the Veteran filed a claim for service connection for bursitis of both shoulders. In January 2005, the RO denied this claim, which it characterized as a petition to reopen the Veteran's previously denied claim for service connection for bilateral shoulder condition. In November 2005, the Veteran filed a request to reopen his claim with attached medical evidence. However, as indicated in the Board's decision below granting service connection for a bilateral should condition based on nerve-related symptomatology, the Board finds that this communication with attached medical evidence was a new claim for service connection for a bilateral shoulder disability on a new factual basis. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). While the RO treated this communication as a petition to reopen a previously denied claim (which, in a September 2006 decision it granted and then denied the underlying claim), the Board will treat the November 2005 communication as a claim for service connection and will analyze this claim on a de novo basis. In January 2005, the RO denied the Veteran's claims for service connection for carpal tunnel syndrome in bilateral wrists and ulnar nerve condition in the bilateral elbows. Within a year of this decision, the Veteran submitted the above-noted November 2005 request to reopen his claims. As indicated in the Board's decision granting service connection below, the evidence was in fact new and material as to the claims for service connection for bilateral carpal tunnel syndrome and ulnar nerve condition in the bilateral elbows, and was received prior to the expiration of the appeal period for the January 2005 denial of the claim. See Muehl v. West, 13 Vet. App. 159, 161-62 (1999) (RO's receipt of 38 C.F.R. § 3.156(b)-compliant evidence abates the finality of a prior decision on a claim and tolls the time for filing an appeal until a new decision has been issued). Therefore, the Board considers the Veteran's appeal with regard to these issues to be from the RO's January 2005 denial of the claims for service connection for carpal tunnel syndrome in bilateral wrists (since recharacterized as bilateral carpal/cubital tunnel syndrome) and ulnar nerve condition in the bilateral elbows. In May 2009, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record. After the hearing, the Board held the record open for 60 days, during which the Veteran submitted the July 2009 letter from Dr. Adams discussed below. As the Board is granting the service connection claims to which this letter relates, remand for initial RO consideration of this evidence is unnecessary. See 38 C.F.R. § 20.1304(c) (2008). FINDINGS OF FACT 1. In May 2009, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his appeal with regard to entitlement to an earlier effective date for service. 2. The Veteran's bilateral shoulder disability, carpal/cubital tunnel syndrome, and bilateral elbow ulnar nerve condition are each the result of his service-connected cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant (or his or her authorized representative) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2008). 2. The criteria for service connection for bilateral shoulder disability, carpal/cubital tunnel syndrome, and bilateral elbow ulnar nerve condition, secondary to a cervical spine disability, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2006 & 2008). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). However, as the Board is granting each of the claims for service connection, and the Veteran has withdrawn the appeal with regard to an earlier effective date, further VCAA notice or assistance is not required. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Effective Date 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.A. § 7105 (West 2002). 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. § 20.204 (2008). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran testified at his May 2009 hearing that he wanted to withdraw his appeal with regard to entitlement to an earlier effective date for the grant of a 30 percent rating for a cervical spine disability; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 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 military service. 38 U.S.C.A. § 1110, 1131. Service connection is also warranted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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 veteran. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). In this case, the Veteran claims that he has multiple disabilities as the result of his cervical spine disability, for which he was granted service connection in September 1990 based on an injury he sustained in a parachute jump during ACDUTRA. There are conflicting medical opinions as to this asserted relationship. In a September 2005 treatment note, Dr. Shalvoy, after noting his examination findings, diagnosed cervical disc disease and bilateral rotator cuff tendinosis, and concluded that the Veteran's "problem is centered around the neck injury which has caused nerve compression at C5 and 6 causing neck symptoms radiating into the hands, and bilateral shoulder problems." He explained that the C5-6 nerves had been affected causing weakness in the rotator cuff and subsequent tendonitis with impingement. He added that treatment should concentrate on the neck pathology, as this would address all three symptoms, and that these are causally related to the in-service parachute jump injury. In an October 2005 treatment note, Dr. Palumbo diagnosed bilateral impingement syndrome, bilateral cubital tunnel syndrome, bilateral carpal tunnel syndrome, possible mild cervical radiculopathy, and double crush syndrome (a combination of radiculopathy and carpal tunnel syndrome) of both upper extremities. In a November 2005 treatment note, Dr. Palumbo concluded that, despite mostly normal findings on neurophysiologic testing (an October 2005 electrodiagnostic examination) there were "multiple contributors to his symptomatology," and that the cervical spine disability "is a significant contributor to his problem." In an October 2005 letter, Dr. Adams noted the Veteran's in- service parachute accident, symptoms including neck pain and neuropathy radiating to the shoulders and down the arms, two MRIs that revealed rotator cuff tendinopathy, subacromial bursitis, and cervical spine multi-level disc protrusion and stenosis. She concluded that the Veteran's "symptoms are most likely caused by his extensive neck pathology and the shoulder findings are not the complete cause of his shoulder discomfort." In a July 2009 letter, Dr. Adams elaborated that the combination of nerve impingement at the cervical spine level and tendinopathy at the shoulder level compound the compression of his brachial plexus which causes radicular signals that radiate from his shoulder down to his hands, and these radicular symptoms normally present as carpal tunnel, tennis elbow, or a combination of both. Each of these private opinions reflects that the physicians were well informed regarding the Veteran's in-service injury and post-service symptomatology and explained in detail the reasons for their conclusions. Therefore, these opinions are entitled to substantial probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In contrast, in September 2007, a VA physician performed a peripheral nerves examination on the Veteran and, after examining the Veteran and diagnosing multiple cervical spine disabilities and bilateral carpal tunnel syndrome, opined that the carpal tunnel syndrome was not related to the history of neck injury or the cervical spine disability. The VA physician did not explain the reasons for her conclusion, and therefore, her statement is of limited probative value. Id. Moreover, a different VA physician who performed a September 2007 joints examination concluded that, the VA peripheral nerves examiner's findings showed a herniated disc which indicated that there was radiculitis secondary to the cervical spine disability and that the "resulting radiculopathy and weakness in the left hand is caused by or as a result of the original neck injury sustained in the service." The weight of the medical evidence is therefore in favor of a finding that the Veteran's cervical spine disability has resulted in multiple secondary disabilities. The only negative nexus opinion, that of the September 2007 VA peripheral nerves examiner, applied only to carpal tunnel syndrome and, unlike the multiple positive private and VA opinions, did not contain an explanation of the reasons for the conclusion reached. The only remaining question is the precise nature of the disabilities caused by the service-connected cervical spine disability. The disabilities attributed by Drs. Shalvoy, Palumbo, and Adams to the Veteran's cervical spine disability included bilateral impingement syndrome causing shoulder and hand disabilities, bilateral cubital tunnel syndrome, bilateral carpal tunnel syndrome, possible mild cervical radiculopathy, double crush syndrome, and carpal tunnel syndrome and tennis elbow. "Cubital" refers to the elbow, the ulna, or the forearm. See DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at 401. Cubital tunnel syndrome "is the effect of pressure on the ulnar nerve, one of the main nerves of the hand. It can result in a variety of problems, including pain, swelling, weakness or clumsiness of the hand and tingling or numbness of the ring and small fingers. It also often results in elbow pain on the side of the arm next to the chest." See Ehand.com, the Electronic Textbook of Hand Surgery, at http://www.eatonhand.com/hw/hw007.htm. With reasonable doubt resolved in favor of the Veteran, the opinions of the private and VA physicians reflect that each of the disabilities for which service connection has been claimed, a bilateral shoulder disability, carpal/cubital tunnel syndrome, and an ulnar condition of both elbows, are related to his service-connected cervical spine disability. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-56. Service connection for each of these disabilities, secondary to a cervical spine disability, is therefore warranted. The extent to which the symptoms of these disabilities overlap, and the extent to which separate ratings are warranted for each of them, is left to the agency of original jurisdiction charged with assigning these ratings in the first instance. See Esteban v. Brown, 6 Vet. App. 259 (1994). ORDER The appeal as to the claim for an earlier effective date for a 30 percent rating for a cervical spine disability is dismissed. Entitlement to service connection for a bilateral shoulder disability is granted. Entitlement to service connection for carpal/cubital tunnel syndrome is granted. Entitlement to service connection for an ulnar condition of both elbows is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs