Citation Nr: 1001990 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 03-14 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Service connection for carpal tunnel syndrome of the right upper extremity, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury. 2. Service connection for carpal tunnel syndrome of the left upper extremity, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury. 3. Service connection for degenerative joint disease of the right knee, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury. 4. Service connection for degenerative joint disease of the left knee, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury. 5. Service connection for degenerative joint disease of the right shoulder, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury. 6. Service connection for degenerative joint disease of the left shoulder, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury. 7. Service connection for a stomach disorder, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury. 8. Service connection for a mental disorder (including depression, insomnia, anger, and memory loss), to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active service from February 1961 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2002 of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In September 2007, the Board denied, on direct and presumptive bases, the Veteran's service connection claims for orthopedic and stomach disorders. See 38 C.F.R. §§ 3.303, 3.307, 3.309. However, in that decision, the Board remanded this matter for additional development with regard to the Veteran's assertions that his disorders are secondary to a service-connected spine disorder. See 38 C.F.R. § 3.310. The Board also remanded this matter for a medical examination for the service connection claim for a mental disorder. FINDINGS OF FACT 1. The preponderance of the medical evidence of record indicates that the Veteran's carpal tunnel syndrome of the right upper extremity is not related to the Veteran's service-connected spine disorder. 2. The preponderance of the medical evidence of record indicates that the Veteran's carpal tunnel syndrome of the left upper extremity is not related to the Veteran's service- connected spine disorder. 3. The preponderance of the medical evidence of record indicates that the Veteran's degenerative joint disease of the right knee is not related to the Veteran's service- connected spine disorder. 4. The preponderance of the medical evidence of record indicates that the Veteran's degenerative joint disease of the left knee is not related to the Veteran's service- connected spine disorder. 5. The preponderance of the medical evidence of record indicates that the Veteran's degenerative joint disease of the right shoulder is not related to the Veteran's service- connected spine disorder. 6. The preponderance of the medical evidence of record indicates that the Veteran's degenerative joint disease of the left shoulder is not related to the Veteran's service- connected spine disorder. 7. The preponderance of the medical evidence of record indicates that the Veteran's stomach disorder is not related to the Veteran's service-connected spine disorder. 8. On May 8, 2008, prior to the promulgation of a decision in the appeal, the Veteran indicated that he did not desire to seek service connection for a mental disorder. CONCLUSIONS OF LAW 1. Carpal tunnel syndrome in the right upper extremity is not related to a service-connected disorder. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2009). 2. Carpal tunnel syndrome in the left upper extremity is not related to a service-connected disorder. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2009). 3. Degenerative joint disease in the right knee is not related to a service-connected disorder. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2009). 4. Degenerative joint disease in the left knee is not related to a service-connected disorder. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2009). 5. Degenerative joint disease in the right shoulder is not related to a service-connected disorder. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2009). 6. Degenerative joint disease in the left shoulder is not related to a service-connected disorder. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2009). 7. A stomach disorder is not related to a service-connected disorder. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2009). 8. The criteria for withdrawal of an appeal for service connection for a mental disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the interest of clarity, the Board will initially discuss whether the claims decided here have been properly developed for appellate purposes. The Board will then address the merits of the claims, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the claimant has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claims, and whether the claims have been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id. VA satisfied VCAA notification requirements here in letters to the Veteran dated in January 2002, March 2006, October 2007, and September 2008. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. In these letters, VA informed the Veteran of the elements of his claims, and of the evidence necessary to substantiate the claims. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA advised the Veteran of the respective duties of the VA and of the Veteran in obtaining evidence needed to substantiate his claims. VA requested from the Veteran relevant evidence, or information regarding evidence which VA should obtain. Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 73 Fed. Reg. 23353 (the requirement of requesting that the claimant provide any evidence in his/her possession that pertains to the claim was eliminated by the Secretary [effective May 30, 2008] during the course of this appeal, and this change eliminates the fourth element of notice as required under Pelegrini). And VA provided a VCAA notification letter to the Veteran prior to the July 2002 rating decision that denied his claims. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2007) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). The Board notes deficiencies with VCAA notification, however. VA did not notify the Veteran regarding disability ratings in general, or of effective dates for the award of VA benefits, prior to the rating decision on appeal. See Mayfield and Dingess/Hartman, both supra. And VA did not notify the Veteran regarding requirements in claims for secondary service connection prior to the rating decision on appeal. See 38 C.F.R. § 3.310. Nevertheless, the Board finds that proceeding with a final decision is appropriate here. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. Following full notification, the Veteran's claims were readjudicated in the October 2009 Supplemental Statement of the Case (SSOC) of record. This readjudication complies with the remedial actions outlined in Mayfield. See Mayfield, 444 F.3d 1328. Based on this background, the Board finds VA's untimely notice in this matter to be harmless error. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. VA afforded the Veteran the opportunity to appear before one or more hearings to voice his contentions. VA obtained medical records relevant to this appeal. And VA provided the Veteran with VA compensation examination for his claims. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the Veteran in this appeal. Therefore, the Veteran has not been prejudiced as a result of the Board deciding his claims here. II. The Merits of the Claims for Service Connection In February 2001, the Veteran claimed service connection for several disorders - right and left carpal tunnel syndrome, right and left degenerative joint disease of the knee, right and left degenerative joint disease of the shoulder, and Gastro Esophageal Reflux Disease (a stomach disorder). He contends that these disorders relate to his service-connected thoracic spine disorder. In the July 2002 rating decision on appeal, the RO denied each of these claims. As indicated above, the Board addressed the orthopedic and stomach service connection claims in September 2007, denying each on direct and presumptive bases. See 38 C.F.R. §§ 3.303, 3.307, 3.309. But the Board remanded these claims for additional development with regard to the Veteran's claims under the secondary service connection theory of entitlement. See 38 C.F.R. § 3.310. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2009). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2009). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2009). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). The record clearly demonstrates that the Veteran has a current spine disorder. He has been service connected for a disorder of the thoracic spine since August 1964. The first element is therefore established under 38 C.F.R. § 3.310. But, for each of the claims on appeal, the second element is not established here - though the record demonstrates that the Veteran currently has his claimed disorders, the medical evidence preponderates against his claim that these disorders relate to his service-connected spine disorder. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim). The Veteran underwent VA compensation examination in December 2006. In the examination report of record, the VA examiner diagnosed the Veteran with the current disorders of carpal tunnel syndrome, bilateral degenerative joint disease of the knees and shoulders, and a stomach disorder diagnosed as Gastro Esophageal Reflux Disorder (GERD). And VA treatment records support the Veteran's claims to having these disorders. But none of this medical evidence relates any of these several disorders to the service-connected spine disorder. Rather, the December 2006 VA examiner found no relationship. After examining the Veteran and reviewing the record - to include the volumes of VA treatment records - this examiner found the Veteran's carpal tunnel syndrome caused by repetitive duties in his post-service civilian employment in a saw mill, found the arthritic disorders of the knees and shoulders a result of the normal aging process, and found the stomach disorder caused by multiple medications unrelated to the service-connected spine disorder. As no medical evidence of record disputes these opinions, the Board finds that the evidence of record preponderates against the Veteran's claims for secondary service connection. As such, service connection on a secondary basis is unwarranted here for disorders of the upper extremities, knees, shoulders, and stomach. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has closely reviewed and considered the Veteran's statements in this matter, and the lay statements of record. While these statements may be viewed as evidence, the Board must also note that laypersons without medical expertise or training are not competent to offer medical evidence on matters involving diagnosis and etiology. Therefore, the statements alone are insufficient to prove the Veteran's claims. Ultimately, a lay statement, however sincerely communicated, cannot form a factual basis for granting a claim requiring medical determinations. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Lastly, with regard to the issue of service connection for a mental disorder, the record indicates that the Veteran does not wish to pursue service connection for a mental disorder. Pursuant to the Board's September 2007 remand, the Veteran attended a VA compensation examination for a psychiatric disorder in May 2008. In the report of record, it is indicated that the Veteran denied claiming service connection for a psychiatric disorder. Moreover, the report indicates that the Veteran informed the VA examiner that he did not have a psychiatric disorder. The examiner indicated that these statements were later confirmed by the Veteran's spouse. 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 (2009). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In this matter, the Board finds that the Veteran has withdrawn from appellate consideration a service connection claim for a mental disorder. He indicated this clearly during his May 2008 VA examination. Accordingly, the Board does not have jurisdiction to review that issue. (CONTINUED ON NEXT PAGE) ORDER 1. Service connection for carpal tunnel syndrome of the right upper extremity, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury, is denied. 2. Service connection for carpal tunnel syndrome of the left upper extremity, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury, is denied. 3. Service connection for degenerative joint disease of the right knee, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury, is denied. 4. Service connection for degenerative joint disease of the left knee, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury, is denied. 5. Service connection for degenerative joint disease of the right shoulder, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury, is denied. 6. Service connection for degenerative joint disease of the left shoulder, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury, is denied. 7. Service connection for a stomach disorder, to include as secondary to compression fracture of T-10, T-11, T-12 with secondary nerve root injury, is denied. 8. The appeal of the claim for service connection for a mental disorder is dismissed. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs