Citation Nr: 1001920 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 08-13 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for disability exhibited by right chest pain. 2. Entitlement to an initial compensable rating for left shoulder sprain. 3. Entitlement to an initial compensable rating for right shoulder sprain. 4. Entitlement to an initial compensable rating for right hand sprain. ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from November 1981 to April 1982, and from October 1986 to October 2005. This matter comes to the Board of Veterans' Appeals (Board) from an April 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for left shoulder sprain, right shoulder sprain, right hand sprain, and hypertension, assigning separate noncompensable ratings, and denied service connection for right chest pain. A notice of disagreement was filed in April 2006 and a statement of the case was issued in April 2008. The Veteran filed a substantive appeal in April 2008, indicating that she only intended to continue the appeal with regard to the noncompensable ratings assigned to left shoulder sprain, right shoulder sprain, right hand sprain, and the denial of service connection. The issues of entitlement to initial compensable ratings for left shoulder sprain, right shoulder sprain, and right hand sprain are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any further action is required on her part. FINDING OF FACT A chronic disability manifested by right chest pain is not currently shown CONCLUSION OF LAW A chronic disability manifested by right chest pain was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 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 United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the Veteran in a VCAA letter issued in December 2005. The letter predated the April 2006 rating decision. See id. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate her claim, as well as what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004). The December 2005 letter clearly advised the Veteran of the evidence necessary to substantiate her claim of service connection for right chest pain. In August 2006, the Veteran was provided with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Despite initial inadequate notice provided to the Veteran, the Board finds no prejudice to her in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In any event, since the Board concludes below that the preponderance of the evidence is against entitlement to service connection for right chest pain, any questions as to the appropriate disability rating and effective date to be assigned are rendered moot. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notices. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's service treatment records and post-service medical records from William Beaumont Army Hospital, Melissa C. Verde, D.P.M., and Family Physicians of Casselberry. The Veteran completed a VA Form 21-4142 pertaining to Khurshid Ahmed, M.D. who has treated the Veteran from 2006 to the present pertaining to the hands and chest. VA attempted to obtain such records in May 2008; however, there was no response. There is otherwise no indication of relevant, outstanding records which would support the Veteran's claim of service connection for right chest pain. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The evidence of record contains a VA examination report dated in March 2006. The examination report is thorough and contains sufficient information to decide the service connection issue on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue of entitlement to service connection for chest pain. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Service treatment records reflect that in October 2004, the Veteran sought treatment at a private orthopaedic and sports medicine center. A four year history of right shoulder pain was reflected, but her main complaint was due to pain in the anterior chest wall that goes toward the shoulder. Examination of the right upper extremity showed circulation and sensation to be intact. There was full range of motion of the right shoulder. There was no impingement. There was no tenderness over the biceps tendon. There was serratus anterior and chest wall tenderness and pain with certain movements of the shoulder. The impression was a normal shoulder exam and the pain was coming from the anterior chest wall. It was recommended that she undergo a computerized tomography scan (CT) of the chest. In November 2004, the Veteran sought treatment for right shoulder and chest pain. On examination, the right shoulder exhibited full range of motion but there was pain with above shoulder level motion. There was some tenderness to palpation of the supraspinatous muscle. There was also pain with palpation in the lower 1/3 of the coastal cartilages of the right chest. The assessment was atypical chest pain, and she was referred to radiology. In November 2004, the Veteran underwent two views and CT of the chest with contrast. Chest two views showed no active disease in the chest, and CT of the chest was negative. In May 2005, the Veteran underwent an examination for retirement purposes. She complained of pain in the chest area/right shoulder for the past year. The examiner noted that her right shoulder/upper chest muscle was painful when sneezing, coughing and various shoulder movements. A chest x-ray was within normal limits. In March 2006, the Veteran underwent a VA examination. Her cardiovascular examination was normal. A chest x-ray reflected no acute abnormalities. An April 2008 examination conducted by Family Physicians of Casselberry reflects that examination of the chest wall revealed no deformities or breast masses. A neurologic examination was normal. Although the examiner noted a medical problem of chest discomfort, atypical, there were no specific findings made at the time of the examination. Initially, as detailed, service connection is in effect for right shoulder sprain, and any symptomatology associated with such disability has been considered in assigning the disability rating. While acknowledging the Veteran's complaints of right chest pain in service and subsequent to service, as detailed there have been no objective findings of a chronic disability due to such pain. The Veteran has undergone several chest x-ray examinations which have been normal, and while examiners have acknowledged and identified pain, there has been no malady associated with such pain. The Board notes that pain alone, without a diagnosed or identifiable underlying malady, does not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Without a diagnosed chronic disability associated with right chest pain, there can be no valid claim of service connection. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for right chest pain must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Service connection for disability exhibited by right chest pain is denied. REMAND In March 2006, the Veteran underwent a VA examination to assess the nature and severity of her right and left shoulder, and right hand disabilities. In her April 2006 notice of disagreement, the Veteran stated that she experiences pain and stiffness in her hand while working as an administrative assistant, and experiences swelling after exercising. With regard to the shoulders, she stated that she continues to experience pain and has problems sleeping. In March 2008, the Veteran was scheduled to attend another VA examination at the Bay Pines VA Medical Center (VAMC) to assess the nature and severity of her shoulder and hand disabilities; however, the Veteran cancelled the examination and refused to undergo an examination at the location. It was noted that the Veteran was employed at the Orlando VAMC, and could not be scheduled to attend an examination at the Orlando VAMC or Tampa VAMC. In the Veteran's April 2008 substantive appeal, she stated that she was not told that she would have to be seen at the Bay Pines VAMC, she was told that she would scheduled for a VA examination at the closest location. She requested the closest location due to the price of gas. There were no attempts made to reschedule the Veteran for a VA examination. An April 2008 private medical record reflects a diagnosis of tenosynovitis, hand/wrist. Service connection is in effect for a disability the RO has characterized as "right hand sprain;" however, in a November 2008 rating decision, the RO denied entitlement to service connection for left hand/fingers condition and right hand/fingers condition, claimed as bilateral hand/finger disability. In light of the fact that the most recent VA examination was conducted in March 2006, and in light of the Veteran's continued complaints related to the shoulders and right hand, the Board has determined that the Veteran should be afforded another VA examination to assess the nature and severity of her service-connected disabilities, to include distinguishing the symptomatology associated with the service-connected right hand disability. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). In order to more accurately reflect the current level of the veteran's disabilities, the Board believes that an examination and opinion is necessary. Such examination should be scheduled at the closest VA facility located to the Veteran; however, if the Veteran's employment with a VAMC presents a conflict of interest, the examination should be scheduled at the second closest location. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA orthopedic examination to ascertain the nature and severity of her right shoulder and left shoulder disabilities. Such examination should be scheduled at the VAMC located closest to the Veteran, and in the event that the Veteran's employment with the VAMC presents a conflict of interest, the examination should be scheduled at the second closest location. The claims file should be made available to the examiner for review in connection with the examination. Any medically indicated special tests, including x-rays, should be accomplished, and all special test and clinical findings should be clearly reported. Range of motion testing should be accomplished and the examiner should report, in degrees, the point at which pain is demonstrated. To the extent possible the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner should specifically comment on any right chest pain or symptomatology associated with the right shoulder disability. The examiner should also provide an opinion concerning the impact of the service-connected right and left shoulder disabilities on the Veteran's ability to work, and provide supporting rationale for this opinion. 2. Schedule the Veteran for an appropriate VA orthopedic examination to ascertain the nature and severity of her right hand disability. Such examination should be scheduled at the VAMC located closest to the Veteran, and in the event that the Veteran's employment with the VAMC presents a conflict of interest, the examination should be scheduled at the second closest location. The claims file should be made available to the examiner for review in connection with the examination. Any medically indicated special tests, including x-rays, should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should identify all disabilities associated with the right hand. Range of motion testing should be accomplished and the examiner should report, in degrees, the point at which pain is demonstrated. To the extent possible the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner should attempt to distinguish any and all symptomatology related to the service-connected right hand sprain, from any symptomatology related to a nonservice-connected disability of the right hand or fingers. The examiner should also provide an opinion concerning the impact of the service-connected right hand disability on the Veteran's ability to work, and provide supporting rationale for this opinion. 3. After completion of the above, the RO should review the expanded record and readjudicate the claims for higher initial ratings. If any benefit sought is not granted in full, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. No action is required of the Veteran until she is notified by the RO. The Veteran has the right to submit additional evidence and argument on the 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs