Citation Nr: 1301957 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 07-13 410A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for numbness of the right hand, including as secondary to service-connected degenerative joint disease of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which, in pertinent part, denied service connection for the disability on appeal characterized as peripheral neuropathy of the hands. In September 2011, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. When the case was before the Board in September 2011, the issue on appeal was characterized as entitlement to service connection for numbness of the bilateral hands. In March 2012, service connection for cervical radiculopathy of the left upper extremity was awarded with an initial 20 percent evaluation assigned effective January 17, 2007. The grant of service connection constitutes a complete grant of the benefits on appeal with respect to the left hand, and the issue currently before the Board is limited to consideration of service connection for numbness of the right hand. FINDING OF FACT The Veteran does not have a chronic disability of the right hand manifested by numbness and paresthesia. CONCLUSION OF LAW A chronic disability of the right hand manifested by numbness and paresthesia was not incurred or aggravated by active duty service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for a chronic disability manifested by numbness of the right hand, to include as due to service-connected degenerative joint disease of the cervical spine. To establish service connection on a secondary basis, the evidence must show that a disability is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (2012); see also Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a direct basis generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection on either a direct or secondary basis first requires competent evidence showing the existence of a present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza, 7 Vet. App. at 498. After review of the evidence of record, the Board finds that the record is against a finding that there is a current chronic disease or disability manifested by numbness of the right hand. Service treatment records are negative for complaints or treatment pertaining to numbness or other neurological impairment of the right hand. The Veteran's upper extremities were normal upon examination for separation in March 1970 and he denied a history of neurological abnormalities on the accompanying report of medical history. The post-service evidence demonstrates that while the Veteran has made complaints of right hand numbness, there are no objective medical findings of a chronic neurological disability of the right upper extremity. The Veteran first complained of hand numbness in August 1995, while receiving treatment at the Albuquerque VA Medical Center (VAMC). The examining physician noted that the Veteran's complaints did not fit any nerve distribution patterns. A similar conclusion was made a month later in September 1995, when the Veteran again reported experiencing right wrist and hand numbness. His doctor noted a vague history of paresthesias for the last 12 years, but examination of the Veteran's right upper extremity was normal. The Veteran continued to make occasional complaints of hand numbness while undergoing private and VA treatment through the years, but no neurological deficits were found during clinical examinations, to include an Agent Orange registry examination performed at the VAMC in June 2004. The Veteran's right upper extremity was also normal upon VA examinations in September 2007, June 2009, and most recently in March 2012. Furthermore, the March 2012 VA examiner specifically found that while the Veteran complained of paresthesia in both hands, there was only objective evidence of a neurological disability in the left hand. In July 2005, the Veteran was provided a second Agent Orange registry examination at the Albuquerque VAMC. Although a diagnosis of neuropathy secondary to neuroforamin narrowing was provided, the Board notes that the examining nurse practitioner (NP) did not specify whether the neuropathy was identified in the lower extremities, the upper extremities, or both. In addition, the examining NP referenced a January 2005 lumbar MRI and May 2005 cervical X-ray following her diagnosis, but only the radiograph of the lumbar spine actually demonstrated neuroforamin narrowing. The NP also noted that a previous examination performed on July 10, 2004 (which the Board has interpreted as referring to the Veteran's earlier Agent Orange registry examination on June 10, 2004) supported the diagnosis of neuropathy, but as discussed above, the June 2004 examination showed normal neurological findings. Therefore, the Board finds that the July 2004 diagnosis of neuropathy secondary to neuroforamin narrowing does not support the Veteran's current claim pertaining to the right hand. The Veteran has maintained throughout the claims period that he experiences a neurological disability of the right hand manifested by numbness and paresthesia. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, 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. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Board finds that the Veteran is not competent to diagnose the presence of a disability of his right hand. He is competent to identify and explain the symptoms that he observes and experiences, such as the presence of right hand numbness, but the specific disability on appeal requires more than simple observation of symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The symptoms experienced by the Veteran may be the result of multiple etiologies and require specialized medical training and expertise to properly identify and classify them. They are therefore not capable of lay observation and diagnosis. See Jandreau 1376-1377 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). In any event, the Board finds that the Veteran's lay statements describing the claimed disability are clearly outweighed by the medical evidence of record, including the conclusion of the March 2012 VA examiner. The Veteran's right hand and upper extremity have been examined numerous times throughout the claims period, and the objective findings are clearly against the presence of a current disability. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection for a disability manifested by numbness of the right hand, to include as secondary to a service-connected cervical spine disability. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, notice fulfilling the requirements was furnished to the Veteran in August 2005 and March 2006 letters. The claim was readjudicated in the March 2012 supplemental statement of the case (SSOC). Therefore, any timing deficiency has been remedied. Mayfield, 444 F.3d at 1333. VA has also met the duty to assist. VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided a proper VA examination and medical opinion in March 2012 in response to his claim. The Board also finds that VA has complied with the September 2011 remand orders of the Board. In response to the Board's remand, the Veteran was contacted in an October 2011 letter and asked to identify all health care providers who had treated the claimed disability on appeal. The Veteran was also asked to specify whether the July 10, 2004 examination referenced by the July 2005 Agent Orange registry examiner was performed at a VA facility or by a private physician. Although no response to the October 2011 letter was received, review of the record indicates that the Veteran underwent a previous Agent Orange registry examination at the VAMC on June 10, 2004. Therefore, it appears the notation of an examination performed on July 10, 2004 was a typographical error and the examining NP was referring to the examination performed on June 10, 2004. The Veteran was also provided a VA examination in March 2012 in response to the Board's remand and the case was then readjudicated in the March 2012 SSOC. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for numbness of the right hand, including as secondary to service-connected degenerative joint disease of the cervical spine, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs