Citation Nr: 1038435 Decision Date: 10/13/10 Archive Date: 10/22/10 DOCKET NO. 06-13 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a chronic disability of the left hand, wrist, and elbow, manifested by pain, numbness, and loss of strength, to include as secondary to service- connected post-operative residuals of a left shoulder dislocation. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to a disability evaluation in excess of 30 percent for post-operative residuals of a left shoulder dislocation. REPRESENTATION Appellant represented by: Gregory D. Keenum, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from June 1968 to January 1970, to include active duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from July 2005 and July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran appeared at a Travel Board Hearing in March 2010. A transcript is associated with the claims folder. The issue of entitlement to a disability evaluation in excess of 30 percent for post-operative residuals of a left shoulder dislocation is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record indicates that the Veteran has pain, numbness, and loss of grip strength in his left wrist, hand, and elbow; there is no chronic disability in the wrist, elbow, or hand, with competent medical assessments documenting no neuropathy or other disability. 2. The Veteran has a diagnosis of PTSD as a consequence of hi service in Vietnam; the record shows that the Veteran served in proximity to combat during the Vietnam War as a member of the U.S. Navy Construction Battalions. The Veteran's diagnosis of PTSD is based on his fear of hostile enemy action, and it is consistent with the type, place, and circumstances of his service. CONCLUSIONS OF LAW 1. Service connection for a chronic disability of the left hand, wrist, and elbow, manifested by pain, numbness, and loss of strength, to include as secondary to service-connected post- operative residuals of a left shoulder dislocation, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010). 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with a claim. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) and, inform the claimant about the information and evidence the claimant is expected to provide. Although no longer required, in this case it was requested that the claimant provide any evidence in his possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Additionally, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) mandate notification of all five elements of a service connection claim. Those five elements include (1) Veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. This notice must also inform the Veteran on how VA determines that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Id. The Board is satisfied that the mandates of the VCAA have been met in this case. There is no issue as to providing an appropriate application form or completeness of the application. In VCAA letters to the Veteran, he was informed about the information and evidence not of record that is necessary to substantiate his service connection claims; the information and evidence that VA will seek to provide; and the information and evidence the claimant is expected to provide. It is also pertinent to note that the Veteran is represented by a private attorney, and that individual is presumed to have knowledge of what is required to substantiate a claim for service connection. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim for service connection for a disorder of the wrist, elbow, and hand, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records, including VA examination reports and reports of neurological testing. There is no indication of any additional relevant evidence that has not been obtained. With respect to the clinical examinations, the Board finds that the Veteran was provided a thorough VA neurology examination that addressed the existence of a current disability. This evaluation is adequate for rating purposes; there is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the claim for service connection for PTSD is granted, there is no need to discuss VCAA notice with respect to that specific claim. Legal Criteria-Service Connection Applicable law provides that service connection will be granted if it is shown that the veteran experiences a disability resulting from an injury or disease contracted in line of duty, or for aggravation of a preexisting injury or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease 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 injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury 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); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a Veteran's nonservice- connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310. Furthermore, for certain chronic diseases, such as organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a year following discharge from service. 38 C.F.R. § 3.307, 3.309 Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the Veteran was engaged in combat with the enemy. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). Where the record does not establish that the claimant engaged in combat with the enemy, the assertions of in-service stressors, standing alone, cannot as a matter of law provide evidence to establish an event claimed as a stressor occurred. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the claimant must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997). Analysis-Hand, Wrist, and Elbow/Upper Extremity Disorder The Veteran claims that he has a disorder in his left hand, wrist, and elbow, manifested by pain, numbness, and loss of strength, and that this condition is a result of his service- connected left shoulder disorder. Essentially, the Veteran claims that he has neurological difficulties in the lower portion of his left upper extremity, and that this is a result of the surgery he had to repair the service-connected left shoulder condition. The Veteran has complained of numbness and loss of grip strength on several occasions, and he has been examined by VA multiple times for the purposes of evaluating his claimed condition. The earliest examination, dated in May 2005, was orthopedic in nature; however, the entirety of the Veteran's upper extremity complaints were noted, and the examiner stated that pain was present in the left hand as a result of the service-connected left shoulder condition. Despite the positive correlation between left hand pain and the service-connected shoulder, a May 2006 VA examiner determined that there was no chronic diagnosis of pain, subjective weakness, or numbness in the left upper extremity. Essentially, this examiner stated that the manifestations were symptoms, and that there was no underlying chronic disability associated with the Veteran's complaints. In February 2008, the Veteran was given a comprehensive VA neurological examination by a physician's assistant (PA). Although this healthcare provider is not a physician, he is nonetheless competent to diagnose neurological abnormalities, and to refer the Veteran for specialty treatment. Indeed, this examiner reiterated previous findings of pain in the upper extremity, and noted that the Veteran complained of weakness in his grip strength. The PA recommended that an electromyograph (EMG) study be conducted, and such a test was performed later in the month. The results of the EMG were essentially normal, in that no "definite electrophysiological evidence of a median neuropathy at the wrist" was noted, with the low amplitudes of the median sensory nerve found to be of an uncertain clinical significance. No ulnar neuropathy was found, and the examiner concluded that "the normal sural sensory nerve action potential amplitudes are electrophysiological evidence against the diagnosis of an underlying polyneuropathy." In April 2008, the results of the EMG were reviewed by the same PA who conducted the February 2008 examination. This examiner listed the EMG findings, and stated that the data supported a finding that the nerve conduction was normal from the periphery to the spinal cord. The examiner opined that the loss of grip strength in the left hand was not clear, but "could be related to unilateral disuse." Essentially, the Board must conclude that the Veteran does not experience a chronic disability in the left hand, wrist, and elbow. He complains of pain, numbness, and a loss of grip strength, and there is no doubt that he experiences some sort of symptoms. The competent medical evidence of record, however, which includes thorough neurological testing, has determined that there is no chronic disability in the distal portion of the left upper extremity. In all cases of service connection, it is first and foremost a requirement that a current chronic disability be present. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (without a current disability, a claim for entitlement to service connection cannot be sustained). In this case, the Veteran has pain, numbness, and loss of strength in the wrist, elbow, and hand. The Board does not deny that these symptoms are present, and they are essentially tantamount to a consistent pain in and around the left hand and lower arm. Pain alone, however, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). As the Veteran lacks a discernible chronic disability of the left arm and hand, the claim for service connection cannot be granted. The Veteran's lay statements, both to healthcare providers and to VA adjudicators, essentially assert that he is in pain, has numbness, and has some loss of strength in his hand, wrist, and elbow. This is undisputed by the Board. The Veteran does not, however, attest to having been diagnosed as having a chronic neurological (or other) disability, and the evidence of record does not suggest that such a diagnosis exists. As the Veteran has not alleged having a chronic disorder, and as there is no finding in the record which would document a diagnosis, the preponderance of the evidence is against the claim for service connection. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis-PTSD The Veteran claims that his service in Vietnam has caused him to develop PTSD. Essentially, he asserts to having been in combat situations while serving with the U.S. Navy Construction Battalions (CBs or Seabees), and that exposure to combat trauma caused a chronic psychiatric condition. The Veteran does have a diagnosis of PTSD from a VA psychiatrist. Indeed, a consultation dated in March 2006 assesses the Veteran with PTSD, and intrusive thoughts of combat in Vietnam (nighttime bomb and mortar attacks) were listed as being responsible for the condition. Major depression (in partial remission) was also listed as a psychiatric diagnosis. The VA psychiatrist conducted a thorough interview of the Veteran, and noted the Veteran's service in Vietnam as responsible for his PTSD (including exposure to small arms fire and exposure to combat casualties). Service personnel records indicate that the Veteran was a builder in the Navy, and that he served in Vietnam as a Seabee. The DD Form 214 shows that the Veteran received the Vietnam Service Medal (VSM), with three Bronze Service Stars and a Fleet Marine Force (FMF) Combat Insignia. The FMF Combat Insignia on the VSM was given to Navy personnel who served with Marines engaged in active combat with enemy forces, and it is thus proves that the Veteran was in close proximity to combat operations during his service. Recent amendments to 38 C.F.R. § 3.304(f) state that if a Veteran is diagnosed with PTSD by a VA psychiatrist or psychologist, and if that diagnosis is based on stressors which involve the "fear of hostile military or terrorist activity," that the Veteran's lay testimony alone may corroborate the existence of the stressors, if the claimed stressors are consistent with the places, types, and circumstances of the Veteran's service. In this instance, the Veteran was a Seabee who was attached to a Marine Unit engaged in active combat with Viet Cong and/or North Vietnamese Army forces. It is reasonable to believe that his duty as a Navy Seabee would expose him to small arms and other attacks while in the performance of his duties in the Republic of Vietnam. As such, although the Board does not concede that the Veteran served in combat (it is not necessary at this point), he was clearly in very close proximity to combat operations. Thus, his description of stressors is deemed corroborated. Thus, the Veteran has a diagnosis of PTSD based on his service in Vietnam, and his fear of hostile enemy action, as the basis of his PTSD diagnosis, is consistent with the place, type, and circumstances of his service. The requirements for service connection for PTSD have been met, and the claim will be granted. See 38 C.F.R. § 3.304(f). ORDER Entitlement to service connection for a chronic disability of the left hand, wrist, and elbow, manifested by pain, numbness, and loss of strength, to include as secondary to service-connected post-operative residuals of a left shoulder dislocation, is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMAND The Veteran is currently in receipt of a 30 percent disability evaluation for residuals of a left shoulder dislocation, which required surgical correction. He asserts that his disability has grown in severity, and that the current rating does not adequately contemplate his symptoms. The Veteran has been examined on numerous occasions, and the most recent examination, dated in February 2008, is relatively current. The Veteran has, however, posited a contention against the credibility of the February 2008 examiner, and has also submitted lay testimony which indicates that his condition is more severe than what was assessed in 2008. Specifically, the Veteran's spouse has alleged that the examiner who conducted the February 2008 examination moved the Veteran's arm against his will, and that the forced movement caused the Veteran to be in great pain (which was not documented). Essentially, it is her contention that the results of the 2008 examination do not accurately reflect the Veteran's true range of motion, and that the Board should not consider them in evaluating the current status of his left shoulder. The Board notes that there is a neurological examination of record, also dated in 2008, the results of which are uncontested by the Veteran. Following this submission of the Veteran's spouse, a friend of the Veteran also submitted a letter in which that individual attested to having helped the Veteran with household chores due to a limited range of motion in the left arm. This letter is dated in January 2010, and it states that the Veteran cannot raise his arm to a "useful elevated position." Though not specifically stated, it is implicit in the recent date of the letter, and in assertion that the Veteran has recently become "more dependent on others" (since his wife's disablement), that there is some level of an increase in severity in the last two years. This, coupled with the Veteran's March 2010 hearing testimony (where he asserted being unable to function in certain remedial tasks such as tying his shoes or buckling his belt), shows that Veteran maintains that his condition is more severe than when most recently evaluated by VA. The Board is concerned with the results of the 2008 VA examination, in that it does not wish to use results which do not accurately reflect the nature of the disability picture (in claims for an increase, the current state of the disability picture is of utmost importance). Although the report of the 2008 examination does not, on its face, indicate any impropriety on the examiner's part, the letter of the Veteran's spouse (who witnessed the examination) does raise some concerns as to the results. Given this, and given that the post-2008 evidence of record seems to suggest a worsening in severity, the Board will dispatch the claim to the RO so that a new, comprehensive VA examination addressing severity can be afforded. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A are fully satisfied. 2. Schedule the Veteran for a VA examination, with an examiner other than the one who conducted the February 2008 examination, for the purposes of determining the current severity of the service-connected left shoulder disability. All necessary tests should be conducted, and range of motion findings, including noting where pain begins, should be included. The examiner should refer to previous orthopedic and neurological examinations of record, and should determine if further assessment is required in either area. 3. Following the directed development, the RO must conduct a de novo review of the claim on the merits. Should the claim be denied, issue an appropriate statement of the case to the Veteran and his representative and return the claim to the Board for final adjudication. The appellant has the right to submit additional evidence and argument on the matter or 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 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. 2010). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs