Citation Nr: 0626261 Decision Date: 08/23/06 Archive Date: 08/31/06 DOCKET NO. 03-14 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for syringomyelia secondary to bursitis/tendonitis of the right upper extremity. REPRESENTATION Appellant represented by: Eastern Paralyzed Veterans Association ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The veteran served on active duty from August 1985 to March 1988. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2002 rating decision of the Department of Veterans Affairs (VA) New York, New York Regional Office (RO). In November 2004, the Board remanded this case for additional development. The case has now been returned to the Board. FINDINGS OF FACT A syringomyelia was not demonstrated during the veteran's period of active service, nor is such a disorder shown to causally be related to the service-connected bursitis/tendonitis of the right upper extremity. CONCLUSION OF LAW Syringomyelia was not incurred in or aggravated by active service, nor is such a disorder proximately due to or the result of service-connected disorder. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., evidence of veteran status; existence of a current disability; evidence of a nexus between service and the disability; the degree of disability, and the effective date of any disability benefits. The veteran must also be notified to submit all evidence in his possession, what specific evidence he is to provide, and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in March 2002 and December 2004 correspondence, amongst other documents considered by the Board, generally fulfills the provisions of 38 U.S.C.A. § 5103(a), save for a failure to provide notice addressing the type of evidence necessary to establish a disability rating and an effective date for the disabilities on appeal. The claim was readjudicated in an August 2005 supplemental statement of the case. The failure to provide notice of the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal is harmless because the Board has determined that the preponderance of the evidence is against the claim for service connection. Hence, any questions regarding what rating or effective date would be assigned are moot. The record shows that the veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim, to include the opportunity to present pertinent evidence. Thus any error in the timing of the notice provided was harmless, the appellant was not prejudiced, and the Board may proceed to decide this appeal. Simply put, there is no evidence that any VA error in notifying the appellant that reasonably affects the fairness of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). VA has secured all available pertinent evidence and conducted all appropriate development. There is no pertinent evidence which is not currently part of the claims file. Hence, VA has fulfilled its duty to assist the appellant. Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as organic diseases of the nervous system may be presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability that is proximately due to or the result of or being aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (additional disability resulting from the aggravation of a nonservice- connected disorder by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a)). In order for service connection for a particular disability to be granted, a claimant must establish that he has such disability and that there is a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Background The veteran essentially alleges that his currently diagnosed syringomyelia was caused by his service connected bursitis/tendonitis of the right upper extremity; or in the converse that bursitis/tendonitis of the right upper extremity during service was symptomatic of the early onset of syringomyelia. The service medical records do not reveal any complaints, findings or diagnoses pertaining to syringomyelia. During service the veteran had numerous injuries involving his back, knees, shoulders, hands, knuckles, rheumatism, bursitis, and arthritis. VA clinical records in 1999 reveal diagnoses of syringomyelia, and complaints of pain in the arms and middle back. The report of a June 2002 VA examination reflects that the veteran had evidence of treatment in service for a right rotator cuff strain and right medial epicondylitis. He has a history of chronic pain and stiffness of multiple joints of the bilateral upper extremities. He was wheelchair bound since 1996 and needed help in activities of daily living. The diagnoses were cervical and thoracic syringomyelia; quadriparesis secondary to cervical and thoracic syringomyelia. The examiner opined that, it was at least as likely as not that the veteran's right shoulder and right elbow problems in service were secondary to early manifestations of syringomyelia which was eventually diagnosed in 1994, prior to subsequent traumas in 1996 and November 2000. There is a handwritten July 2002 notation attached to the June 2002 VA examination by a VA neurologist which states that, "I read the medical file. There is no connection between syringomyelia (a spinal cord ds.) and any bursitis or tendinitis." In August 2002, a VA neurologist in reviewing the case noted that syringomyelia was not secondary to bursitis, but that the converse could be true. It was not clear why the veteran developed syringomyelia but the examiner needed the veteran's history to ascertain the cause of the disorder. While syringomyelia could occur idiopathically, it usually followed spinal cord injury of some sort. In a December 2002 medical opinion Craig N. Bash, M.D., opined that the veteran began developing a syrinx in service and that it caused him to have weakness and biomechanical imbalance which in turn caused his initial pain and muscle/ligament weakness/bursitis which eventually progressed to bilateral shoulder, elbow, and hand pains and lower extremity neurological signs and symptoms. He noted this opinion was consistent with two other VA examiners including the examiner in the June 2002 VA examination. Dr. Bash opined that the opinion of the VA neurologist that there was no connection between syringomyelia and any bursitis or tendinitis did not conform to standard medical theory. In December 2002, the VA neurologist who previously reviewed the veteran's claims file noted that he reviewed the entire file and was now able to elaborate on his comments. He noted a softball injury suffered by the veteran in service to the elbow and shoulder did not cause syringomyelia. The immediate cause and effect of athletic trauma and manifestations of a joint distribution was convincing but not consistent with syringomyelia. In a December 2002 private medical report, Marc M. Levinson, M.D., noted the veteran was his patient. He stated that it had been clearly established in the medical literature that musculoskeletal problems as a result of syringomyelia can range from simple bursitis and tendinitis all the way up to Charcot's joint. In a second November 2003 medical opinion Dr. Bash noted that he carefully rereviewed the service medical records, post service medical records, the several medical opinions of file, as well as the medical literature. He noted that: This case was well within my area of expertise because I have performed and interpreted plain x-rays, CT scans, and MRI scans with and without CSF flow on patients with syringomyelia and I have been involved with the NIH clinical studies of patients with syrinx for several years. Dr. Bash noted that Dr. Levinson supported his theory. He further noted that the VA physician in the initial June 2002 VA examination opined that, it was at least as likely as not that the veteran's right shoulder and right elbow problems in service were secondary to early manifestations of syringomyelia. In December 2002, he reversed his earlier opinion agreeing with another VA physician that the syringomyelia was unrelated to service. In January 2004, the VA neurologist who previously reviewed the veteran's claims file in August and December 2002 opined that: The right shoulder injury has noting to do with the onset, diagnosis, progression, or lack of progression of syringomyelia. The shoulder problem was caused by trauma and is independent of syringomyelia. Pursuant to the Veterans Health Administrative Directive 2000-049 and 38 U.S.C.A. § 7109 (West 2002), a medical opinion was secured from a physician working for the Veterans Health Administration. That reviewer noted that the service medical records contained no records demonstrating any complaint referable to the nervous system including the spinal cord. Referring to statements from Drs. Bash and Levinson, the reviewer noted that the association of musculoskeletal symptoms to patients with syringomyelia did not encompass the medical issue in question. Rather, the reviewer found that the issue was whether symptoms presented on a single date in 1987 were the initial signs of a later discovered syrinx. The reviewer noted that the time interval between 1987 documented symptoms and the discovery of the syrinx greatly exceeded five years. The reviewer opined that in order for the conditions to even be considered remotely clinically related there needed to be a development of symptoms consistent with an abnormality within the spinal cord. Here, however, the veteran's records did not demonstrate progressive sensory or motor complaints prior to the subsequent discovery of a syrinx that occurred following post service trauma in 1996. The reviewer noted that the record revealed two well documented post service traumatic events. The first related to a fall in 1996, and the second to a 2000 motor vehicle accident. Each of these post service injuries was judged to have impacted the veteran's condition. Records pertaining to these post service events included references to sensory and motor symptoms and signs in the veteran's upper and lower extremities. All of these records referenced an initial fall in 1996 with subsequent development of progressive symptoms and an exacerbation of such subsequent to a later motor vehicle accident in 2000. The reviewer noted that the most common cause of progression of symptoms associated with syringomyelia was trauma on the spine documented as having occurred more than five years after the 1987 elbow and shoulder symptoms. The veteran's clinical course subsequent to the post service 1996 trauma was consistent with progressive syringomyelia in that he developed weakness, loss of sensation and bladder dysfunction associated with an abnormality of the spinal cord, the syrinx. In view of the foregoing the reviewer concluded that: 1. There is no association between the veteran patient's military service from August 1985 to March 1988 and the origination of syringomyelia. 2. There is no evidence of syringomyelia being clinically manifested during the one-year period immediately following the veteran's March 1988 discharge from active duty. 3. There is no evidence that currently existing syringomyelia is caused or worsened by right shoulder bursitis and, 4. It is more likely than not that current syringomyelia was caused by post service accidents. Analysis After reviewing the evidence of record, it is concluded that the preponderance of the evidence is against entitlement to service connection for syringomyelia, to include as secondary to bursitis/tendonitis of the right upper extremity. Service medical records are negative for treatment or diagnosis of syringomyelia. The veteran was diagnosed with syringomyelia in 1996, more than one year after separation from service. The medical evidence of record that supports the veteran's contention includes the December 2002 medical opinion from Dr. Levinson, stating that musculoskeletal problems as a result of syringomyelia can range from simple bursitis and tendinitis all the way up to Charcot's joint. The favorable evidence also includes Dr. Bash's December 2002 and November 2003 opinions that the veteran began developing his syrinx in service. On the other hand, the evidence against the veteran's claim includes July, August, and December 2002 reviews of the case by a VA neurologist noting that syringomyelia is not secondary to bursitis. Additionally, a January 2004 report from the same VA examiner noted that the service connected injury had nothing to do with the onset, diagnosis, progression, or lack of progression of syringomyelia. Finally, in March 2006 a Veterans Health Administration reviewer opined that there was no association between the veteran's military service and the origination of syringomyelia; no evidence of syringomyelia during the one- year period immediately following service; no evidence that syringomyelia was caused or worsened by right shoulder bursitis; and, it was more likely than not that syringomyelia was caused by post service accidents. As is true with any piece of evidence, the weight to be attached to medical opinions is within the province of the Board as adjudicators. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (Board favoring one medical opinion over another is not error). Further, the United States Court of Appeals for Veterans Claims has rejected the "treating physician rule," which holds that opinions of a claimant's treating physician are entitled to greater weight than opinions from medical experts who have not treated a claimant. Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993). After reviewing all of the foregoing, the Board finds that the evidence against the claim is of greater probative value and weight than that in favor of the claim. The VA examiners, after conducting an examination and extensively reviewing the service medical records, and case files opined that the veteran's cervical syringomyelia was not directly related to service or secondary to his right shoulder bursitis/tendonitis disability. Because these opinions were based on consideration of all of the evidence, and not just selected evidence, the Board finds the opinions of the VA examiner and the Veterans Health Administration reviewer are more persuasive than the opinions rendered by Drs. Bash and Levinson which fail to consider certain evidence that does not support their theories, and which failed to particularly address the impact of the post service injuries. Accordingly, the preponderance of the evidence is against the claim. Hence, the benefit of the doubt doctrine is not applicable. Service connection for syringomyelia to include secondary to bursitis/tendonitis of the right upper extremity is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for syringomyelia to include secondary to bursitis/tendonitis is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs