Citation Nr: 1311246 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-21 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for residuals of a foreign body embedded in the left forearm, also characterized as a left arm degenerative changes. 2. Entitlement to service connection for residuals of a foreign body embedded in the left forearm, also characterized as left arm muscle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from September 1945 to January 1949. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in July 2011. A transcript of that proceeding has been associated with the claims file. This appeal was previously before the Board in August 2011 and August 2012, at which time it was remanded for further development, to include a VA examination and opinion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Although the Board regrets the additional delay that may be caused by this action, the issue of entitlement to service connection for residuals of a foreign body embedded in the left forearm, also characterized as left arm muscle disability is addressed in the REMAND portion of the decision below and is REMANDED again to the RO/AMC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT A left arm disability was not manifested in service, left arm degenerative changes were not manifested within the first postservice year; and the Veteran's current left arm degenerative changes are not shown to be related to his military service, to include any claimed residuals of a foreign body embedded in his left forearm. CONCLUSION OF LAW Service connection for residuals of a foreign body embedded in the left forearm also characterized as a left arm degenerative changes is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran was sent a letter in April 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, a June 2007 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file, to include the Veteran's Virtual VA electronic file, contains all of the Veteran's available post-service reports of VA treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Notably, an October 2011 memorandum associated with the claims file documents that there are no VA records from Muskogee VAMC prior to 2005 available for review. As noted, the Veteran was afforded the opportunity for a Board hearing in July 2011, and the transcript of the hearing is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a Board hearing fulfill two duties to comply with the above regulation. These duties consist of: (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, the VLJ specifically noted the issue as "entitlement to service connection for pieces of steel in the left arm and wrist". The VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The VLJ specifically asked the Veteran about the Veteran's claimed in-service injury related to his left arm. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the Board hearing focused on the element necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's Board hearing constitutes harmless error. 23 Vet. App. at 488. Additionally, pursuant to the August 2011 and August 2012 Board remands, the Veteran was afforded a VA examination in September 2011 and most recently in January 2013, an addendum opinion was obtained. The Board finds that the January 2013 VA addendum opinion is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board also finds that there was substantial compliance with the most recent August 2012 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to substantial compliance with a remand order. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to the internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Specifically in this case, the Board directed the AMC/RO to afford the Veteran a VA examination and opinion to ascertain the etiology of his current left arm disability. Upon remand, as noted, the Veteran underwent a VA examination in September 2011 most recently in January 2013 an addendum opinion was obtained. Thereafter, the AMC/RO readjudicated the matter in a February 2013 supplemental statement of the case, as directed by the Board. For the above reasons, the Board finds that there was substantial compliance with the most recent August 2012 remand directives. Accordingly, no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries, 22 Vet. App. at 104-05. B. Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Direct service connection requires competent and credible evidence of a current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the September 2011 VA examination report showed degenerative changes of the left wrist and forearm. A September 2011 VA X-ray of the left hand revealed osteopenia and a 3 millimeter metallic density in the soft tissue of the anterior forearm. The January 2013 VA addendum opinion again verifies a diagnosis of degenerative changes of the left hand. While the medical evidence does not show evidence of residual scarring or associated neurological problems; as noted, degenerative changes of the left hand are shown. Thus, the current disability requirement has been met in this case. As a chronic condition, arthritis would be entitled to presumptive service connection if the disease became manifest to a degree of 10 percent or more within one year of separation. 38 C.F.R. §§ 3.307, 3.309. The Board notes, however, there is no medical evidence of record during the relevant presumptive period. The January 1949 service separation examination found no significant abnormalities of the left upper extremity. The medical evidence of record is first dated in 2011, more than sixty years after the Veteran's separation from service. Therefore, a grant of service connection on a presumptive basis is not warranted here. The second requirement for direct service connection is competent and credible evidence of an in-service occurrence or aggravation of a disease or injury. Davidson, 581 F.3d 1313. The Veteran's service treatment records are silent for any complaints of or treatment for a left arm disorder. Again, the January 1949 separation examination found no significant abnormalities of the left upper extremity. However, the Veteran is competent to provide statements with regard to any injury he experienced while in service, treatment received, and symptoms experienced. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, the Veteran asserts that he was using a chisel and hammer to remove a boiler grit on the U.S.S. Chicago when a fragment from the chisel broke loose and struck him in the left forearm. The Veteran testified that he sought minimal medical treatment at the time (i.e., "at a trailer with a bunch of corpsman in it") and was told that the skin would simply grow around the fragment wound. The Board finds no reason to question the Veteran's credibility that a foreign body broke loose and struck him in the left forearm while on active duty. Furthermore, a September 2011 VA left hand X-ray revealed a 3 millimeter metallic density in the soft tissue of the anterior forearm "compatible with the given history of prior injury." The Board finds that the evidence is deemed to be medically consistent with the Veteran's claimed in-service injury. Therefore, the in-service occurrence requirement is deemed to have been met. The third and final requirement for direct service connection is medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Davidson, 581 F.3d 1313. In this regard, the Board notes that the only medical opinion that adequately addresses this issue is against a finding that the Veteran's current left arm disorder is related to service. The January 2013 VA examiner essentially noted that based on a review of the Veteran's claims file, as well as pertinent medical literature, it was less likely than not that the Veteran's current left arm disorder was caused by or aggravated by any claimed injury or subsequent residuals. The examiner noted that the September 2011 VA X-ray revealed osteoarthritis in the right hand greater than the left hand; and bilateral wrist osteopenia. He indicated that osteoarthritis is a joint condition and that the Veteran's metallic foreign body is in the soft tissue, not the joint, and there was no evidence of bone destruction associated with the foreign body. The examiner stated that the Veteran's currently diagnosed osteopenia is a condition of decreased mineralization of the bone that is associated with aging, metabolic conditions, and Vitamin D deficiency. Based on these facts, the examiner found that the osteopenia was less likely as not associated with the soft tissue metallic foreign body; and more likely a result of natural aging. The Veteran himself believes that his left arm degenerative changes are due to service. However, as a lay person he is generally not credible to address the cause of his disability. To the extent that the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) can be interpreted to enable a lay person to speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg, the question of causation here involves a more complex relationship that the Veteran is not competent to address. Alternately, the final requirement of service connection can be satisfied through a showing of continuity of symptomatology. 38 C.F.R. § 3.303(b). The Court has held that a lay person is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). As noted, the medical evidence of record shows complaints of left arm pain dating back to 2011, over sixty years after separation. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). However, the absence of contemporaneous medical evidence does not in itself preclude a grant of service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Indeed, a veteran's own statements that his/her lay-observable symptomatology has been continuous can overcome an absence of medical evidence showing such continuity. In this case, the Veteran is competent to report his history of left arm pain. However, the Veteran has not indicated that he has had continuous left arm symptoms since service, in fact it was noted during the July 2011 Board hearing that his left arm had only recently become symptomatic. See page 3 of the hearing transcript. Furthermore, as noted, the separation examination showed normal findings and indicated no subjective complaints. Moreover, he did not file a claim for a left arm disability until 2007, over fifty years after separation. Consequently, a finding of service connection based on a showing of continuity of symptomatology is not warranted. Considering all of the evidence of record, the Board finds that the preponderance of the evidence does not support service connection for a left arm disability. See 38 U.S.C.A. § 5107(b) (2012). The Veteran's claim is denied. ORDER Service connection for residuals of a foreign body embedded in the left forearm, also characterized as a left arm degenerative changes is denied. REMAND Unfortunately, a remand regarding the Veteran's left arm muscle pain is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this issue, and that the Veteran is afforded every possible consideration. The Veteran has not been afforded a VA examination in conjunction with his claim for service connection for a left arm disability other than a VA joints examination in September 2011; with addendum opinion provided in January 2013. As noted, there is evidence of a foreign body embedded in his left upper extremity, and the Veteran's own reports of left upper extremity pain. In light of the Veteran's contentions and the nature of the injury, the Board finds that a VA muscle examination should be conducted to determine whether there is any residual muscle impairment related to the foreign body. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for his left arm disability. After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. In addition, obtain all relevant ongoing VA treatment records dating since January 2013 from the VA Medical Center in Muskogee, Oklahoma. 2. Thereafter, schedule the Veteran for a VA muscles examination. The claims folder must be reviewed in conjunction with the examination. The examiner is to determine the nature of any current muscle pain disability. If it is determined that nerve damage exists, schedule the Veteran for a VA nerve examination. For any diagnosed disability, the examiner is to opine whether it is at least as likely as not (a 50 percent or greater probability) that such disability is related to any incident of the Veteran's military service, to include the foreign body embedded within the Veteran's left upper extremity. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. 4. After the above action has been completed, readjudicate the claim. If the claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs