Citation Nr: 0814450 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-21 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a left hand disorder, including as secondary to service-connected right shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The veteran served on active duty from July 1966 to July 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The veteran appeared at a Travel Board hearing in October 2005 before the undersigned Veterans Law Judge. The case was remanded in January 2006. In September 2007, the Board denied entitlement to service connection for a cervical spine disorder, and entitlement to an increased rating for his right shoulder disorder. The Board remanded the issue of entitlement to service connection for a left hand disorder. The RO completed the directed development as directed, continued to deny the claim, and returned the case to the Board for further appellate review. FINDING OF FACT The preponderance of the probative evidence indicates that a left hand disorder is not related to an in-service disease or injury, or a service-connected right shoulder disorder. CONCLUSION OF LAW The veteran's left hand disorder is not proximately due to, the result of, or aggravated by, his service-connected right shoulder disorder. 38 U.S.C.A. § 5103, 5103A, 5107(b) (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. A November 2002 letter informed the veteran of VA's duty to assist him and of the evidence needed to support a claim for service connection. A July 2004 letter provided notice of the information and evidence needed to substantiate and complete a claim for service connection on a secondary basis, to include notice of what part of that evidence is to be provided by the claimant, notice of what part VA will attempt to obtain, and the need for the veteran to submit all pertinent evidence in his possession. The claim was readjudicated in a November 2007 supplemental statement of the case. The RO's failure to provide the veteran notice of how disability ratings and effective dates are determined in the event service connection is granted is not prejudicial in light of the decision reached below. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). VA has also fulfilled its duty to assist the veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. In sum, there is no evidence of any VA error in notifying or assisting the veteran that reasonably affects the fairness of this adjudication. The Board has reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The veteran's preinduction physical examination report noted a pre-existing left third metacarpophalangeal joint fracture, which had been treated with pinning. The Board further notes that the basis of the veteran's claim does not, however, involve a claim of in-service aggravation of that injury. Rather, the appellant bases his claim on neuropathy secondary to right shoulder and cervical disorders. Transcript, p. 5. Thus, the Board will not discuss service connection due to aggravation of a pre-existing disorder. (Parenthetically, the Board notes that there is no competent evidence of in- service aggravation.) Governing Law and Regulation Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As discussed below, while Wallin elements one and two are present, element three is not. Thus, the Board finds the evidence of record preponderates against the claim. Analysis As noted above, there is no claim of in-service involvement for the left hand. Indeed, service medical records are negative for any entries related to complaints, findings, or treatment for, the left hand. The June 1968 Report Of Medical Examination For Separation notes the upper extremities were assessed as normal. Further, the veteran noted at the hearing that his left hand symptomatology started eight or ten years prior to the hearing, Transcript, p. 8, i.e., between about 1995 and 1997, almost 30 years after his separation from active service. A November 1968 rating decision granted service connection for a right shoulder disorder. Service connection for the right shoulder remains in effect. Following an October 2006 VA examination the examiner diagnosed cervical degenerative disc disease with loss of motion and atrophy of the intrinsic head muscles of the left hand; as well as weakness of the intrinsic left hand muscles due to presumed cervical radiculopathy. The examiner observed that he could not provide an accurate opinion of etiology, as he did not have access to the claims file. The claims file was later provided and the examiner provided an addendum in October 2007. After reviewing the claims file the examiner noted the absence of any evidence in service neck complaints, symptomatology, or treatment. He noted that no such complaints were reported until many, many years post service. He opined the veteran's degenerative disc disease was age- related, and was not due to the right shoulder disorder or any other incident related to his active service. Prior to denying the veteran's claim, the Board remanded the claim again so that the examiner could address the etiology of any neurological involvement. Following another review of the claims file, the examiner noted in an October 2007 addendum that there was no change in his diagnosis of the left hand disorder, and that it was secondary to the cervical degenerative disc disease. He also opined that the veteran's left hand disorder was not caused or aggravated by the service-connected right shoulder disorder, as they are unconnected. The examiner reiterated his opinion that the veteran's left hand disorder is in all likelihood caused by his age-related cervical degenerative disc disease. Specifically, the left hand weakness is due to damage of the nerve roots that innervate the muscles of the left hand. The examiner determined that there was no evidence of cervical radiculopathy or left hand weakness during the veteran's active service. The examiner's opinion is consistent with the probative evidence of record. VA outpatient treatment records note the veteran's treatment for his disorders, but there are no entries, opinions, or comments from qualified medical care providers to the effect that they are causally linked to his active service or his service-connected right shoulder disorder. The Board notes the examiner's comment that it was possible the veteran may have had posterior neck pain secondary to degenerative changes that may have just been starting during the veteran's active service, but that opinion does not support the veteran's claim, as it is tentative. The Board reads the comment as in effect noting that "nothing" is impossible. Such language does not rise to the level of probable. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions expressed in terms of "may" also implies "may" or "may not"' and are speculative). In light of the fact that the preponderance of the probative medical evidence shows the left hand disorder is not causally linked to the service-connected right shoulder disorder, Wallin element three is absent. Of course, Wallin element two is missing as concerns the cervical disorder, as the appellant is not service connected for a cervical disorder. Thus, the preponderance of the evidence is against the claim. 38 C.F.R. § 3.310; Allen. Hence, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for a left hand disorder, including secondary to a right shoulder disorder, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs