Citation Nr: 1312792 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 08-04 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to special monthly compensation (SMC) for loss of use of the upper extremities. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from December 2004 to April 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. This case was previously before the Board in August 2011, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. A right shoulder disability is not etiologically related to the Veteran's active service and right shoulder arthritis was not present within one year of her separation from such service. 2. The Veteran is able to perform acts of grasping and manipulation with both hands and so, does not have loss of use of either her right or left upper extremity. CONCLUSIONS OF LAW 1. A right shoulder disability was not incurred in or aggravated by active service and the incurrence or aggravation of right shoulder arthritis during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for SMC for loss of use of the upper extremities have not been met or approximated. 38 C.F.R. §§ 1114, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350, 4.63 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was mailed a letter in May 2006 advising her of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. In February 2009, the Veteran was mailed a letter providing her with appropriate notice with respect to the disability-rating and effective-date elements of her claims. Although the Veteran was not provided adequate notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development the claims were readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in response to her claims. The Veteran's service treatment records (STRs) are on file, VA Medical Center and private treatment notes have been obtained, and the Veteran has been afforded appropriate VA examinations. In the August 2011 remand, the Board directed that the Veteran be afforded a VA examination to determine the nature and etiology of any right shoulder disability and to determine whether she had loss of use of either or both of her upper extremities. The Veteran was scheduled for the directed examinations in May 2012 and again in August 2012. The Veteran received notice of both scheduled VA examinations; however, she canceled the May 2012 VA examination and failed to report for the August 2012 VA examination. In a September 2012 Supplemental Statement of the Case, both the cancellation and failure to report were noted and the Veteran was informed that the appeal would be decided based on the evidence of record. As the Veteran was provided two separate opportunities to report for a VA examination, yet still failed to do so without demonstrating good cause, the Board finds that the development conducted in this case adequately complies with the directives of the August 2011 remand and there is no bar to proceeding with a final decision at this time. Neither the Veteran nor her representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). The Court has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." For certain chronic diseases set forth in 38 C.F.R. § 3.309, to include arthritis, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (noting that "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases). SMC at the (k) rate is available when a veteran, as a result of service-connected disability, has lost the use of one hand. SMC at the (m) rate is available when a veteran, as a result of service-connected disability, has lost the use of both hands. 38 U.S.C.A. §§ 1114, 1134; 38 C.F.R. § 3.350. Loss of use of a hand, for the purpose of SMC, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the appropriate level with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand, whether the acts of grasping, manipulation, etc. could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Entitlement to Service Connection for a Right Shoulder Disability The Veteran has asserted that she has a right shoulder disability that is related to her active service. A review of the STRs shows that at her June 2004 enlistment examination, the Veteran reported that she had sustained a right shoulder injury while playing softball in 2002. She reported that she had undergone two surgical procedures on her right shoulder to correct the injury. Of record are the May 2002 and November 2002 operative reports documenting the two reported right shoulder surgeries. Also of record in the STRs is a June 2004 letter from the Veteran's private orthopedist, in which he reported that the Veteran had not experienced any right shoulder problems since her second shoulder surgery and that she had full range of right shoulder motion without restriction, normal right shoulder sensation, and good capillary refill. The Veteran's private orthopedist reported that the Veteran had fully recovered from her right shoulder surgery and that there were no concerns regarding her fitness for being accepted for active service. The Veteran's upper extremities were found to be clinically normal upon examination at the time of her enlistment physical and she was found to be fit for active service at that time. Further review of the Veteran's STRs shows that she began seeking treatment for pain, numbness, and tingling in her right arm in April 2005. The Veteran received various diagnoses throughout her service in an attempt to account for these symptoms. Eventually, after numerous tests, to include a May 2005 X-ray which revealed a normal right shoulder, and consultation with private medical examiners, the Veteran was diagnosed with thoracic outlet syndrome and carpal tunnel syndrome. The Veteran was not diagnosed with any other right shoulder disability while she was in active service. In March 2006, the Veteran was afforded a separation examination. At that time, the Veteran reported "yes" on the Report of Medical History to the question of whether she experienced painful shoulder, elbow, or wrist; to the question of whether she experienced numbness or tingling in the upper extremities; and to the question of whether she had impaired use of the arms, legs, hands, or feet. The Veteran elaborated upon her responses and noted that she experienced decreased range of motion in her right shoulder, numbness and tingling in both arms, and numbness in both arms after repetitive use. The examiner noted the Veteran's diagnosis of bilateral upper extremity thoracic outlet syndrome at the time of her separation, but did not otherwise note the presence of any disabling conditions of her right shoulder. In September 2006, the Veteran was afforded a VA examination. At that time, the Veteran reported that she had injured her shoulder playing softball prior to active service and had undergone two surgical procedures for repair and had made a complete recovery. She reported that she had full range of right shoulder motion before entering active service. The Veteran reported that during active service she began to experience numbness and achiness in her upper extremities following use. She reported that she was diagnosed with thoracic outlet syndrome during active service. She did not indicate that she was diagnosed with a disability of her right shoulder during active service. She reported that she has continued to have decreased range of motion in her right shoulder since her separation from active service. The examiner found the Veteran to have decreased range of right shoulder motion upon examination; however, the examiner noted that the limitation of motion was due to weakness and not due to pain, incoordination, fatigue, or repetition. X-rays taken of the right shoulder at that time were negative. The examiner diagnosed bilateral thoracic outlet syndrome by history, but noted that the Veteran's symptoms were not consistent with any pathology that could be confirmed by any diagnostic test. Of record is a March 2007 independent medical examination report by Dr. R.H. In his report, Dr. R.H. provided extensive detail regarding his review of the Veteran's medical history, to specifically include her active service medical history discussed above. Dr. R.H. also performed a physical examination of the Veteran. Based on his review of the record and his examination of the Veteran, Dr. R.H. diagnosed bilateral upper extremity thoracic outlet syndrome and bilateral carpal tunnel syndrome. Dr. R.H. did not diagnose a separate disability of the Veteran's right shoulder. In October 2007, the Veteran was afforded another VA examination. At that time, the Veteran reported that she had been diagnosed with a right shoulder disability and that the disability had been present for two years. She reported that she was not in receipt of treatment for a right shoulder disability and denied any limitation due to the condition. Right shoulder range of motion was mildly limited upon examination. X-rays taken of the Veteran's right shoulder at that time were negative. The examiner diagnosed right shoulder disability status post reconstruction with residual scar. The examiner did not diagnose a right shoulder disability that had its onset during the Veteran's active service at that time. The Board notes that the Veteran is currently in receipt of service-connected compensation for both bilateral thoracic outlet syndrome and bilateral carpal tunnel syndrome. Other than the scar which was a product of the Veteran's pre-service right shoulder injury and subsequent surgeries, there is no evidence that the Veteran has a right shoulder disability manifested by symptoms that are separate and distinct from those which were used to support the grant of service connection for bilateral thoracic outlet syndrome and bilateral carpal tunnel syndrome. Using the same symptoms to support the grant of service connection for more than one disability would be in violation of 38 C.F.R. § 4.14 (2012). Additionally, while the Veteran might sincerely believe that she has a separate right shoulder disability that is related to her active service and lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue of whether the Veteran has a right shoulder disability that is related to her active service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Further, there is no evidence of record indicating that the Veteran has ever been diagnosed with right shoulder arthritis, let alone diagnosed within one year of her separation from active service. Therefore, presumptive service connection is not applicable in this case. In sum, the Veteran was diagnosed with several disabilities affecting her right upper extremity while she was in active service and she is currently in receipt of service-connected compensation benefits for those disabilities. Other than a surgical scar resulting from a pre-service right shoulder surgery, the Veteran does not have a right shoulder disability that is manifested by symptoms that are separate and distinct from those used to support the grant of entitlement to service connection for bilateral thoracic outlet syndrome and bilateral carpal tunnel syndrome. The Veteran has not been diagnosed with right shoulder arthritis. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a right shoulder disability is not warranted. Entitlement to SMC for Loss of Use of One or Both Upper Extremities The Veteran has asserted that she has loss of use of the upper extremities as a result of her service-connected disabilities. In September 2006, the Veteran was afforded a VA examination. Upon physical examination at that time, the Veteran was found to have mild weakness of the muscles in her hands, thenar and hyperthenar muscles. The Veteran's grip strength was found to be weak on both sides. There is no indication from the examination report that the Veteran was unable to perform acts of grasping and manipulation as a result of the mild muscle weakness or weak grip strength. In March 2007, the Veteran underwent a physical evaluation by a private provider. Upon physical examination at that time, the Veteran was found to have very poor grip strength in both hands. However, the examiner did not indicate that the Veteran was unable to perform acts of grasping and manipulation as a result of the weak grip strength. Further, the examiner did not provide an assessment with regards to muscle weakness in either arm. In October 2007, the Veteran was afforded another VA examination. At that time, the examiner performed a thorough examination of the Veteran's ability to perform acts of grasping and manipulation. In this regard, the Veteran was able to tie her shoelaces without difficulty, she was able to fasten buttons without difficulty, and she was able to pick up a piece of paper and tear it without difficulty. On examination of hand dexterity, the right and left hand fingers were able to approximate the proximal transverse crease of the palm. The right thumb was able to touch all of the right fingers and the left thumb was able to touch all of the left fingers. The Veteran's right and left hand strength was noted to be moderately reduced. Both Phalen's sign and Tinel's sign were positive, bilaterally, indicative of nerve irritation and carpal tunnel syndrome in both upper extremities. A review of the record shows that there are no private or VA Medical Center treatment notes to review. Additionally, the Veteran has reported that she does not receive treatment for her disabilities. The Board finds that the Veteran does not have loss of use of either hand. In this regard, while the Veteran has been noted to have reduced muscle strength in both arms and poor grip strength in both hands, there is no indication from the record that she is unable to perform acts of grasping and manipulation as a result of such. In fact, at the time of her October 2007 VA examination, the Veteran was noted to be able to tie her shoes, manipulate buttons, and pick up and tear paper. She was also able to touch her thumbs to the opposing fingers without problems. Therefore, the Board finds that the evidence simply does not show loss of use of either hand. Additionally, as discussed above, the Veteran was scheduled for several VA examinations at the direction of the August 2011 Board remand to determine whether she had loss of use in either hand. As noted, the Veteran did not report for the directed examination. Therefore, clinical findings which could have been obtained at such an examination are not available for review and the Board must make a decision based on the evidence currently of record. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for loss of use of either or both upper extremities is not warranted. ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to SMC for loss of use of the upper extremities is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs