Citation Nr: 1205067 Decision Date: 02/09/12 Archive Date: 02/23/12 DOCKET NO. 04-22 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a bilateral knee disability. 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for a right upper extremity disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from June 1978 to July 1986. The DD Form 214 also shows two years and nine months of prior service. This matter came before the Board of Veterans Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge at the RO in March 2009. A transcript of his hearing has been associated with the file. In February 2010 the Board denied a compensable evaluation for sinusitis and compensation under 38 U.S.C.A. § 1151for low back and neck disabilities. The issues of entitlement to service connection for a neck disability, a knee disability, and headaches; as well as the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a right upper extremity disability were REMANDED for additional development. The appeal has been returned to the Board for consideration of those issues. The issues of entitlement to service connection for a neck disability and headaches 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. FINDINGS OF FACT 1. A bilateral knee disability was not manifest in service and is unrelated to service; arthritis of the knees was not manifest within one year of separation from service. 2. The Veteran does not have additional right upper extremity disability which is due to VA treatment in which the proximate cause was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgery; or due to an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. A bilateral knee disability was not incurred in or aggravated during service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). 2. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a right upper extremity disability as the result of VA treatment in February 1999 have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2010); 38 C.F.R. 3.361 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in November 2002 discussed the evidence necessary to support a claim of entitlement to service connection. The evidence of record was discussed. The Veteran was told that VA could help him obtain pertinent records. A May 2005 letter discussed the evidence necessary to support claims of entitlement to service connection, claims based on 38 U.S.C.A. § 1151, and claims for increase. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. A June 2005 letter also contained information pertaining to benefits under § 1151. In February 2009 the Veteran was informed of the manner in which VA determines disability ratings and effective dates. The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, the Board notes that the Veteran's service treatment records, which were not associated with the claims file when it was last before the Board, were located and placed in the record. VA and private treatment records are also associated with the record. Additionally, a VA examination was carried out with respect to the Veteran's claim for compensation under 38 U.S.C.A. § 1151. The Board finds that the examination was adequate in that it was conducted by a neutral, skilled provider who reviewed the record, interviewed the Veteran, and performed an appropriate physical examination prior to providing her conclusions. The examiner provided an addendum in which she recited her review of the record and included a discussion of related medical principles. The Veteran has not identified any additional evidence or information which could be obtained to substantiate his claim. The Board is also unaware of any such outstanding evidence or information. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to his claim of entitlement to service connection for a bilateral knee disability. However, the Board finds that a VA examination is not necessary in order to render a decision. There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination 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 Secretary to make a decision on the claim. Id. at 81. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. The Veteran's service treatment records are devoid of any complaints or treatment suggesting a knee disability. Further, the Board finds that there is otherwise no credible evidence of any in-service disease or injury, or credible evidence of a continuity of symptomatology since service, and no competent evidence otherwise showing that the claimed disability was incurred in service. Accordingly, a VA examination is not warranted. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Service treatment records are negative for any diagnosis, complaint, or abnormal finding pertaining to the Veteran's knees. These records show that the Veteran was in motor vehicle accidents in June 1981 and June 1982. In neither instance did he report injuries to his knees or any symptoms referable to his knees. On report of medical history in August 1975 and March 1977, the Veteran denied trick or locked knee. He declined a separation physical examination. A VA treatment record dated in September 2001 indicates that the Veteran was referred to prosthetics for knee supports. A VA X-ray report dated in March 2002 indicates a negative study of the Veteran's knees. The Veteran underwent physical therapy in May 2002 for his knees. The report of an October 2004 M RI of the knees reflects an impression of mild degenerative change within the medial joint compartments with no acute intra-articular derangement. An undated statement by the Veteran's brother indicates that the Veteran did not complain about his knees until after he was in a motor vehicle accident in the early 1980's. In his June 2005 substantive appeal the Veteran related his belief that his claimed knee disability was related to a motor vehicle accident in service. A VA X-ray report dated in March 2006 indicates an impression of normal knees. An April 2007 VA problem list reflects arthralgia of the knees. In September 2008 the Veteran was fitted for bilateral knee supports. An October 2008 VA X-ray study revealed no osseous abnormality. At his March 2009 hearing, the Veteran testified that he was in a motor vehicle accident in service. However, he related his claimed knee disability to running and to cold exposure. Having carefully reviewed the record, the Board concludes that service connection is not warranted for the claimed bilateral knee disability. In that regard the Board notes that medical histories provided by the Veteran during service show his denial of knee problems. Moreover, there is a remarkable lack of credible evidence of pathology for many years following service. The earliest post-service treatment for any complaints referable to the Veteran's knees dates to September 2001 when he was referred for knee supports. A subsequent March 2002 X-ray study was negative; in fact, the earliest evidence of a diagnosis referable to the Veteran's knees dates to an October 2004 MRI report showing mild degenerative changes. In sum, the most credible evidence regarding the most likely date of onset of the claimed disability consists of treatment records reflecting onset of symptomatology years after service discharge. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board is not relying merely on a general absence of complaints in service. Rather, the Veteran was seen for complaints following both accidents and failed to report any injuries to his knees, and, in fact, he also specifically denied complaints referable to his knees while providing his medical history on two occasions during service. Accordingly, the Board finds that the Veteran's current statements and those of his brother are unreliable and not credible with respect to the question of onset of his claimed knee disability. The grant of service connection requires competent and credible evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains records of medical treatment related to the Veteran's knees, it does not contain reliable evidence which relates this claimed disability to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative and credible than the Veteran's more recent statements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Absent reliable lay or medical evidence relating this claimed disability to service, the Board concludes that the claim of entitlement to service connection for a cervical spine disability must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2011). § 1151 Initially, the Board notes that 38 U.S.C.A. § 1151 was amended by Pub. L. No. 104-204. The Veteran's claim was filed after October 1, 1997. Under the applicable law, when a Veteran suffers additional disability as the result of VA surgical treatment, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2008). For claims filed on or after October 1, 1997, the appellant must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151 (West 2002). The Veteran underwent tonsillectomy at the Durham VA Medical Center (VAMC) facility in February 1999. A May 1999 VA record notes that an individual from the Fayetteville VAMC had called regarding the Veteran, stating that he had suffered an ulnar nerve compression injury during surgery. The report of a July 1999 EMG notes the Veteran's report of numbness in the right fourth and fifth fingers since his earlier surgery. The provider noted that the right ulnar motor responses showed focal slowing around the elbows and that right ulnar sensory response was unobtainable. The assessment was mild bilateral ulnar mononeuropathies, focal to or near the elbows. He concluded that he did not see significant evidence in support of the Veteran's claim that the tonsillectomy procedure itself caused the ulnar neuropathy. He pointed out that the Veteran never complained of any neuropathic pain on two occasions post-operatively and that objective data from the neurological testing demonstrated bilateral motor neuropathy even though the complaint was only with his right hand. In February 2001 the Veteran reported right hand weakness and resting hand tremor. Right hand grip strength was decreased. In May 2003 a VA otolaryngologist reviewed the Veteran's history. He noted that the surgery was unremarkable, lasting approximately 10 minutes. He related that the Veteran's right arm was tucked by his side and that the left was on an arm board, according to a nursing note. He indicated that the Veteran underwent further surgery one week later for a post-tonsillectomy bleed, which lasted 25 minutes and during which his right arm was secured by his side and his left positioned on an arm board. He acknowledged that while ulnar neuropathies had been documented in the otolaryngology literature, it was related to patient positioning in longer surgeries and that the Veteran demonstrated bilateral motor neuropathies despite the fact that his arms were positioned appropriately and in two different positions. In May 2006 the Veteran underwent right ulnar nerve decompression. His pain did not improve post-surgically. A VA staff surgeon reviewed the Veteran's records in January 2007. He noted that the surgery was generally short, and even if the ulnar nerve was compressed at the time of the surgery it would not have caused only neuropraxia which is a limited condition and almost always resolves. He pointed out that the Veteran had bilateral ulnar neuropathy which would not fit with his claim of significant disability on the right related to his tonsillectomy. In August 2011 a VA examiner concluded that the Veteran's ulnar neuropathy was at least as likely as not caused by or a result of the surgical procedure performed in February 1999. She noted that the record documented injury to the right ulnar nerve, to include the examination conducted three months following the Veteran's surgery. However, in an October 2011 addendum, she indicated that here was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance in furnishing the care that would cause or increase the risk of him developing right ulnar neuropathy. The Veteran essentially argues that he has a disability of the right upper extremity as the result of treatment rendered by VA in 1999. While the Board has considered the Veteran's arguments, and notes that he is certainly competent to report symptomatology and when it occurred, it finds that the question of whether he has additional disability in which the proximate cause was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgery; or due to an event not reasonably foreseeable is a complex medical issue that is beyond the realm of a layman's competence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Here, a VA provider has reviewed the record and concluded that the current ulnar neuropathy was related to the surgical procedure performed in 1999; however, she also concluded that there was no indication of carelessness, negligence, lack of proper skill, error in judgment, or similar instance in furnishing the care that would cause or increase the risk of the Veteran developing right ulnar neuropathy. She pointed out that it was well documented in the medical literature that there was increased risk of developing post-operative neuropathies independent of the hospital care or surgical treatment received. In assigning high probative value to this opinion, the Board notes that the physician had the claims file for review, and specifically discussed evidence contained in the claims file to include the Veteran's history. There is no indication that the VA physician was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. Rather, she carefully reviewed the claims file and recited the pertinent evidence for her report. The Board thus finds the VA physician's opinion to be of greater probative value than the Veteran's unsupported statements. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Having carefully considered the evidence pertaining to the Veteran's claim, the Board concludes that the legal requirements are not met for compensation under 38 U.S.C.A. § 1151. Simply put, the greater weight of probative evidence is against finding that he suffered additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the residuals were not reasonably foreseeable. For these reasons, the Board concludes that compensation under 38 U.S.C.A. § 1151 for additional disability is not warranted. Accordingly, the claim is denied. ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to compensation under 38 U.S.C.A. § 1151 for a right upper extremity disability is denied. REMAND At the time of the Board's previous remand, the Veteran's service treatment records were not associated with the file. The Board noted that the pertinent rating decision, the statement of the case, and the appeal certification form dated in August 2007 reflected that the service treatment records were associated with the claims file at the time those documents were issued. While the appeal was in remand status, the service treatment records were associated with the file. The service treatment records reflect that the Veteran complained of neck pain in May 1981. He had full range of motion. The provider indicated that the complaints were musculoskeletal. The Veteran was involved in two motor vehicle accidents during service. In June 1981 he was seen in an Army emergency room following an automobile accident. A skull series was normal. That assessment was mild head injury. The Veteran was subsequently seen with reports of neck pain. The provider noted that objectively, there was no evidence of fracture. The assessment was muscular strain. In June 1982 the Veteran was seen in the emergency room following an auto accident in which the area of his left eye was injured. A scleral hematoma was noted, and the Veteran was prescribed an eye patch. The Veteran maintains that his claimed neck and headache disabilities are related to the motor vehicle accidents in service. Here, the Board finds that the standards set forth in McLendon have been satisfied: there is evidence of current a current cervical spine disability and headaches, and the record establishes in-service events during which injuries to the neck and head occurred, but there is insufficient evidence to decide these issues at present. Therefore, a VA medical examination to obtain a nexus opinion is warranted. In light of the above discussion, the Board has determined that additional development of the record is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed neck and headache disabilities. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report. All indicated studies should be performed. Following review of the claims file and examination of the Veteran, the examiner should identify all currently present neck disabilities and indicate whether there is a current headache disability. With respect to any currently present disability, the examiner should provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that such disability is related to any disease or injury in service. The complete rationale for all opinions expressed should be provided in the examination report, to include reference to pertinent evidence where appropriate. 2. Upon completion of the above examination, the ALJ should review the examination report for specific compliance with the Board's directives. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs