Citation Nr: 1305458 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 07-33 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a disability manifested by numbness, pain, and tingling of the left upper extremity, to include as secondary to a service-connected left shoulder rotator cuff tear with tendonitis and/or cervical spine arthritis. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARINGS ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1965. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the benefit sought on appeal. In May 2008, the Veteran presented testimony at a personal hearing conducted in New York, New York before Veterans Law Judge (VLJ) Dennis F. Chiappetta. In a September 2008 decision, the Board remanded the claim for further development. After the development was completed, the Veteran requested another hearing in connection with his claim. The Board remanded to afford the Veteran another hearing in September 2010. In November 2011, the Veteran presented testimony at a second personal hearing before VLJ Laura H. Eskenazi. Transcripts of both personal hearings are in the Veteran's claims folder. The law requires that a VLJ who conducts a hearing on appeal must participate in any decision made on that appeal, and that the matter will be decided by a three member panel of VLJs. See 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012). The United States Court of Appeals for Veterans Claims (Court) held that a veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). During the November 2011 hearing, the Veteran testified that he was waiving his right to have a hearing before a third VLJ. Therefore, an additional hearing is not needed. In this case, only one VLJ is issuing a decision on the claim, as the decision below is a full grant of the benefit sought on appeal, and accordingly no prejudice results to the Veteran. In March 2009, the Veteran filed a claim for an increased rating for his service-connected headaches. In September 2011, the Veteran filed claims for increased ratings for his service-connected left shoulder rotator cuff tear with tendonitis, right shoulder injury to include rotator cuff tear with degenerative disc disease, and cervical spine arthritis (hereinafter left shoulder, right shoulder, and cervical spine disorder). These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT A disability manifested by numbness, pain, and tingling of the left upper extremity has been shown to be etiologically related to an in-service injury wherein a car fell on the Veteran. CONCLUSION OF LAW A disability manifested by numbness, pain, and tingling of the left upper extremity was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012). In light of the favorable disposition of the claim on appeal, the Board finds that a discussion as to whether these duties were met is unnecessary as no prejudice will result to the Veteran. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. In order to establish direct service connection, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for a disability manifested by numbness, pain, and tingling of the left upper extremity. The Veteran contends that he has had weakness in his left arm and hand since a jack slipped when he was performing maintenance on a car during service, which caused the car to fall on him. The service treatment records confirm that in January 1965, a car jack slipped and a car fell on the Veteran. The Veteran complained of a spasm of his left trapezius muscle and tenderness of the left deltoid. There was no evidence of bony injury and an x-ray of the left shoulder girdle revealed no fracture. Following treatment, he reported marked relief from pain in his left shoulder and sterno-clavicular joint in February 1965. A March 1965 line of duty determination provided a diagnosis of contusion of the left shoulder. There were no significant abnormalities reported on his October 1965 separation examination and no left arm or hand weakness/numbness/tingling was reported on the accompanying report of medical history. Thus, although there is evidence that a car fell on the Veteran during service, there is no objective evidence in the service treatment records that he had a left hand disability or numbness of the left upper extremity at the time of his separation from service. The first documented post-service medical evidence that relates the Veteran's in-service injury to a current disability dates in 1986. In an April 1986 letter, Dr. A.S. Saigh indicated that he was the family physician of the Veteran since May 1966. Dr. Saigh stated that the Veteran had complained of cervical spine neuralgia at the C4-C6 level over the years. (The Board notes that neuralgia is defined as "pain extending along the course of one or more nerves." Dorland's Illustrated Medical Dictionary 1251 (30th edition 2003). Many varieties of neuralgia are distinguished according to the part affected. Dorland's at 1251.) A spinal x-ray showed discogenic disease at C5-C6. Dr. Saigh opined that the Veteran's vertebral column complaints stemmed from the injury he sustained during service when a car fell on him. Despite the prolonged period without evidence relevant to the Veteran's claim, the Board finds Dr. Saigh's letter highly probative. The Board finds it significant that Dr. Saigh had treated the Veteran since the year after his separation from service, which indicates that Dr. Saigh was familiar with the Veteran's medical history over the previous 20 years. Thus, it appears that the Veteran has experienced neuralgia stemming from his cervical spine since shortly after his separation from service. The Board recognizes that there is evidence that the Veteran's complaints of left arm discomfort that he experienced in the 1980s were related to coronary artery disease (CAD). However, other evidence dated in the early 1990s reflected that the left arm numbness the Veteran was experiencing was related to his in-service injury. For example, a December 1993 letter from Dr. D.L. Putnam indicated that the Veteran was under his care for CAD. Dr. Putnam noted that the Veteran complained of left shoulder and left arm pain with some numbness in his left arm, which had been present intermittently since he sustained an injury during service. Dr. Putnam opined that this discomfort was not secondary to the Veteran's cardiac problem and may actually be related to the injury sustained during service. Thus, there is probative evidence from the Veteran's cardiologist that related his left arm discomfort to his in-service injury. Additionally, there is medical evidence supporting that the Veteran's left arm/hand numbness was neurological. A December 1993 VA EMG (electromyography) showed evidence of left carpal tunnel syndrome without evidence of radiculopathy. During a March 1996 VA examination, the Veteran complained of numbness in the left hand. There was a finding of a light diminution of pain sensation of the lateral aspect of the left hand. Among the diagnoses was impingement of the nerve on the left shoulder. As reflected above, there is medical evidence that the Veteran had a neurological disability of his left shoulder, arm, and hand in the 1990s. Moreover, the Board observes that the Veteran is competent to report that he experienced numbness and pain in his left shoulder, arm, and hand since the in-service injury. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Moreover, the Board has no reason to doubt the credibility of his reports. In fact, the Veteran's reports are consistent with Dr. Saigh's April 1986 letter wherein he noted that the Veteran had complained of cervical spine neuralgia at the C4-C6 level since at least 1966. In summary, the evidence indicates that the Veteran has experienced numbness and pain in his left shoulder, arm, and hand since service. There is also more recent medical evidence that the Veteran's left arm and hand numbness was caused by the in-service injury. An August 2005 private medical record from Dr. G.R. Cooley indicated that the Veteran had numbness in his first and second fingers in the dorsum of the left hand. The Veteran reported that his second and third fingers were tight and that he could not make a fist. The impression was bilateral rotator cuff tears and cervical marked degenerative arthritis with almost auto fusion. Dr. Cooley opined that it was at least as likely as not that all of the Veteran's conditions were definitely caused by his time in service. After a March 2010 VA peripheral nerve examination, the examiner opined that it is less likely as not that the left arm and hand numbness are related to the service-connected right shoulder injury in 1965. However, the examiner also stated that the disability is a result of the in-service injury to the cervical spine and shoulder, which supports direct service connection. The opinions provided by Dr. Cooley and the VA examiner were given after an examination of the Veteran. Further, the March 2010 VA examiner based the opinion on a review of the Veteran's pertinent medical history. Thus, the Board finds these opinions highly probative. Most recently in a November 2011 letter, Dr. Forrest stated that in his best judgment it is extremely likely that the Veteran's cervical radiculopathy, cervical arthritis, and rotator cuff tears were related to his in-service injury, and that it is much more likely than not that the course of the Veteran's disability is related to his injury related to his service. Dr. Forrest's opinion provides further support to the above opinions linking the current disabilities to the in-service injury. After considering the forgoing, the Board concludes that the evidence indicates that the Veteran's disability manifested by numbness, pain, and tingling of the left upper extremity is directly related to his in-service injury. The Board notes that there is also evidence that the Veteran's disability manifested by numbness, pain, and tingling of the left upper extremity is caused by his service-connected cervical spine and bilateral shoulder disabilities. However, further discussion of secondary service connection is not necessary as the evidence supports a grant of service connection on a direct basis. Accordingly, service connection is granted. ORDER Entitlement to service connection for a disability manifested by numbness, pain, and tingling of the left upper extremity is granted. ____________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs