Citation Nr: 0811874 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-39 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a neurologic disorder manifested by numbness of the right funny bone/elbow. 2. Entitlement to service connection for arthritis. 3. Entitlement to service connection for degenerative joint disease of the arms, legs, hands, wrists, feet, and hips, secondary to service-connected mechanical low back pain. REPRESENTATION Appellant represented by: Gregory D. Keenum, Attorney at Law ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The appellant served on active duty from October 1982 to October 1985. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Jackson, Mississippi, VA Regional Office (RO). The Board notes that, by rating decision dated in October 2006, service connection for fibromyalgia and depression was granted, and a total disability based on individual unemployability was established. This represents a full grant of the benefits sought in regard to those issues. The Board notes that by letter dated in July 2007, the appellant and the appellant's attorney were notified of a scheduled hearing in August 2007. The appellant failed to appear for the hearing. Good cause having not been shown for her failure to appear for the hearing, the hearing request is considered withdrawn. FINDINGS OF FACT 1. The competent evidence establishes no chronic neurologic disability manifested by numbness of the right funny bone/elbow. 2. The competent evidence establishes that the appellant does not have arthritis or degenerative joint disease of the arms, legs, hands, wrists, feet, and hips. 3. Degenerative joint disease of the arms, legs, hands, wrists, feet, and hips, claimed as secondary to service- connected mechanical low back pain is not proximately due to or the result of service-connected disease or injury. CONCLUSIONS OF LAW 1. A chronic neurologic disability manifested by numbness of right funny bone/elbow was not incurred or aggravated in active service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. Arthritis/degenerative joint disease, to include of the arms, legs, hands, wrists, feet, and hips, was not incurred or aggravated in service and arthritis may not be presumed to have been incurred during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. Arthritis/degenerative joint disease, to include of the arms, legs, hands, wrists, feet, and hips, is not proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in July 2004 and October 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claims. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; (3) informed the claimant about the information and evidence that the claimant is expected to provide; and (4) requested that the claimant provide any evidence in his possession that pertains to the claims, or something to the effect that the claimant should "give us everything you've got pertaining to your claim." See Pelegrini II. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case or supplemental statement of the case can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the statement of the case or supplemental statement of the case. See Mayfield v. Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims, and found that the error was harmless, as the Board has done in this case). A VCAA notice letter was also sent in June 2006. If any notice deficiency is present, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the appellant over the course of this appeal, the claimant clearly has actual knowledge of the evidence she is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See also Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. The Board also finds that a VA examination is not necessary to determine whether a chronic neurologic disability manifested by a numb funny bone/elbow is related to his period of honorable service, as the standards of the Court's recent decision in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. Under McLendon, VA must provide a medical examination in a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Id at 81. In this case, although the claimant was treated for complaints to include numbness of the right elbow in service, there is competent evidence of record establishing that a chronic neurologic disability of the right funny bone/elbow was not manifest in service and that the appellant does not currently have a chronic neurologic disability manifested by numbness of the right funny bone/elbow. In light of these findings, the prongs of McLendon have not been met. Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA or the Court. The appellant was also sent a letter regarding the appropriate disability rating or effective date to be assigned in June 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Criteria Service connection means the facts demonstrate that a disease or injury, which results in current disability, was incurred or aggravated in active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may also be granted for arthritis when it is manifested to a compensable degree within one year following discharge from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may 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) (2007). Except as provided in 38 C.F.R. § 3.300(c), disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2007). This includes an increase in disability. When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Essentially, the appellant asserts that arthritis is related service, based upon a theory of either direct service connection or secondary service connection, and that she has a neurologic disorder manifested by numbness of the right funny bone/elbow related to service. The Board finds that service connection is not warranted for arthritis/degenerative joint disease of the arms, legs, hands, wrists, feet, and hips under either theory of entitlement and that service connection is not warranted for a neurologic disorder of the right funny bone/elbow. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1131 (West 2002); see Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). On VA examination in August 2006, the examiner stated that the appellant did not meet the criteria for a diagnosis of degenerative joint disease of the hands, wrists, feet, or hips. While a November 2001 VA treatment record notes the appellant's complaints of arthritis, the record reflects no diagnostic testing and range of motion findings pertained to the neck and back. The Board has accorded more probative value to the August 2006 VA opinion to the effect that the appellant does not have arthritis or degenerative joint disease of the arms, legs, hands, wrists, feet, and hips to be more probative. Significantly, x-ray examinations in August 2006 of the hips, wrist, hands and feet were normal. While pain on motion of the wrists and some swelling in the proximal interphalangeal and distal interphalangeal joints of her right hand, it was noted to function well as a unit and there was no limitation of motion of her left hand was noted. Painless range of motion of the hips was noted, and while some pes bursa tenderness of the bilateral knees was noted, range of motion of the knees was 0 to 140 degrees, bilaterally. In addition, no swelling and no abnormality of the feet was noted. The Board notes that the appellant is service-connected for fibromyalgia and mechanical low back pain. The Board finds that the August 2006 opinion to be the most probative evidence in this case. The examiner reviewed the claims file, the report is remarkably detailed, and a complete rationale was provided for the opinions. Thus, absent competent evidence of disease or injury productive of disability, service connection is not warranted. In regard to the funny bone/elbow, the Board notes that while service medical records reflect complaints in association with numbness, pain, and weakness of the right arm, neurologic evaluation in August 1985 showed that the distribution of the weakness and numbness was not anatomic, rather highly suggestive of functional etiology. The Board notes that a February 2004 VA treatment record reflects a diagnosis of conversion disorder. In addition, while the August 1985 separation examination reflects complaints of right elbow pain, examination showed the upper extremities was normal, and neurologic examination was normal. In addition, post-service records are negative for a diagnosis of a chronic neurologic disability manifested by numbness of the right elbow or funny bone. A February 1998 VA examination report notes a normal neurologic examination. In August 2000, no joint swelling, tenderness, or erythema was noted, and the examiner referenced the normal 1998 nerve conduction studies. While an August 2003 private record notes some possible motor impersistence in the right arm and a subjective decreased light touch on the right arm, pertinent neurologic complaints were noted to be essentially related to seizure activity, and the assessments included possible previous left hemisphere cerebrovascular accident and possible complex partial seizure disorder. Regardless, the record is absent a diagnosis of a chronic neurologic disability of the right funny bone/elbow. A September 2004 VA treatment notes an intact neurologic examination and on VA examination in August 2006, normal range of motion of the elbows was noted. The Board notes that the appellant is competent to report her symptoms, to include pain, weakness, and numbness. In this case, however, the Board has accorded more probative value to the competent evidence, to include the contemporaneous service medical records and the VA opinions . Absent competent evidence of disease or injury productive of disability service connection is not warranted. See Sanchez- Benitez v. West, 259 F.3d 1356 (Fed. Cir. 2001). At this time, there is no competent diagnosis of arthritis/degenerative joint disease, to include of the arms, legs, hands, wrists, feet, and hips, and no diagnosis of a chronic neurologic disability manifested by numbness of the right funny bone/elbow. Absent a current disability, service connection on a direct or secondary basis is not warranted. The preponderance of the evidence is against the claims and there is no doubt to be resolved. Consequently, the benefits sought on appeal are denied. ORDER Service connection for a chronic neurologic disability manifested by numbness of the right funny bone/elbow is denied. Service connection for arthritis is denied. Service connection for degenerative joint disease of the arms, legs, hands, wrists, feet, and hips, secondary to service-connected mechanical low back pain is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs