Citation Nr: 1316308 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 05-40 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for left side nerve damage below the arm. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran had active service from October 1959 to September 1963, with subsequent service in the United States Naval Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Columbia, South Carolina. In February 2007, the Veteran testified at a personal hearing before a Decision Review Officer at the Montgomery RO. In October 2009, the Veteran testified at a personal hearing over which the undersigned presided while at the RO. Transcripts from each hearing have been associated with the claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the foregoing hearings, the issue on appeal were clarified and an inquiry was conducted as to the etiology and continuity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. This matter was previously before the Board in December 2009 and March 2012 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran did not exhibit left side nerve damage below the arm in service or within one year of separation from service, and any such disability is not etiologically related to any injury or disease that was incurred during the Veteran's active service. CONCLUSION OF LAW Left side nerve damage below the arm was not incurred in or aggravated by active service and may not be presumed to have been caused or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in October 2004, February 2010, and March 2012 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, private medical treatment, and Social Security Administration records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. He underwent VA examinations in connection with this claim in November 2008 and April 2012. The Board finds that the April 2012 VA examination report is adequate for the purpose of determining the claim decided herein. That examination report indicates review of the claims file. During the examination, the examiner elicited from the Veteran his history of complaints and symptoms, and provided clinical findings detailing the examination results and clinical diagnoses. The examiner also provided an etiology opinion and explained the reasons and bases for this opinion. For these reasons, the Board concludes that the April 2012 VA examination report in this case provides an adequate basis for a decision on the Veteran's claim. The Board acknowledges the contention made in a November 2012 informal hearing presentation that the April 2012 examination "is inadequate as it was not provided by an orthopedist," even though it does provide an opinion and rationale. The Board notes, however, that a medical opinion need not be by a specialist to be competent medical evidence. See Cox v. Nicholson, 20 Vet. App. 563, 568 - 570 (2007) (rejecting argument that a medical opinion by a nurse practitioner is not competent medical evidence, and rejecting argument that VA cannot rely upon a medical opinion that does not explicitly state the qualifications of the examiner). The Board notes that no specific allegations have been made with respect to the competence or qualifications of the nurse practitioner who authored the April 2012 opinion. In light of the above, the Board finds that the nurse practitioner in this case is competent to conduct the requested examination and provide an etiology opinion. The Board therefore finds that the examiner's qualifications do not render this opinion inadequate for purposes of deciding this claim. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Active military, naval, or air service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21-24) (West 2002); 38 C.F.R. § 3.6 (2012). Service connection may thus be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101, 106, 1110, 1131. In the case at hand, even though the record reflects that the Veteran had periods of active duty for training and inactive duty training following his September 1963 release from active duty, the Veteran has clearly and consistently contended throughout this appeal that his current left side nerve damage occurred as a result of an injury or injuries that occurred during his active duty service. The Veteran's service treatment records do not contain any evidence indicating that he sought treatment for symptoms associated with the claimed disability during his Reserve service. In the absence of medical or lay indications of a relationship between the Veteran's current left side nerve damage and a disease or injury suffered during his Reserve service, the Board need not further discuss the regulations pertaining to active duty for training and inactive duty training. Turning to the Veteran's active duty service, his service treatment records reflect that he suffered a left hand contusion in the line of duty while securing an aircraft on the flight deck in February 1960. The Veteran caught his hand in the tie-down, and the wheel ran over his hand. On examination, there was marked swelling of the dorsum of the left hand with lacerations in the web of the thumb, dorsum of the proximal fourth phalanx, and medial side of the proximal phalanx of the third digit. Color was noted to be good. The Veteran was placed on bed rest for elevation of the hand, administration of codeine, and observation of color. The Veteran was discharged to duty almost two weeks later. A January 1961 service treatment record reflects that the Veteran sought treatment for a sore left forearm. An October 1961 service treatment record reflects that the Veteran was treated for a small infection of the third digit of the left hand. A February 1962 record notes that the Veteran "dislocated left ring finger 2 yrs ago [and] now has permanent deformity." A March 1962 operation report notes that the lacerations that the Veteran had suffered in the February 1960 accident "healed well and the patient now complains of abnormal flex position of the distal phalanx of the 4th finger, which [interferes] with use of his hand." The Veteran underwent arthrodesis of the left distal interphalangeal joint of the fourth finger in March 1962 and a refusion operation in May 1962. Following satisfactory results, the Veteran was allowed to use his hand in order to obtain better function of all of his fingers. Examination subsequently revealed satisfactory use of his hand with good grasp. He was discharged to full duty in July 1962. Aside from a left index finger scar, the Veteran's upper left extremity was found to be clinically normal on examination at the time of his October 1959 enlistment and September 1963 release from active duty. His upper left extremity was found to be clinically normal on annual examination in December 1974 and September 1975. He expressly denied any history of, or current, painful or "trick" shoulder or elbow or neuritis on medical history reports dated in October 1959, December 1974, and September 1975. His service treatment records do not reflect that he ever complained of, or sought treatment for, left side nerve damage below the arm during service. In terms of a current disability, a May 2004 private electromyograph (EMG) nerve conduction study report notes impressions of moderate carpal tunnel syndrome on the left and signs of nerve root irritation at C5 and 6 level on the left secondary to cervical spondylosis. The Veteran underwent VA examinations in connection with this claim in November 2008 and April 2012. According to a November 2008 VA joints examination report, the Veteran reported that he has had difficulty with his left hand ever since it was caught in a tie down ring in 1960. He reported that he has been diagnosed with carpal tunnel syndrome. He reported that he has sharp pain and numbness and, on occasion, has problems with lifting, squeezing, and using the hand. Following review of the claims file and interview and examination of the Veteran, a November 2008 VA joints examination report opines that the Veteran's left side nerve damage below the arm is less likely as not caused by or a result of the injuries the Veteran received while in service. In justifying this opinion, the examiner noted that there were no documented injuries or conditions during service that relate to left side nerve damage below the arm. The Veteran also underwent a VA peripheral nerves conditions examination in April 2012. The resulting examination report reflects review of the Veteran's claims file, as well as interview and examination of the Veteran. Based on the above, the examiner found left handed carpal tunnel syndrome and a nerve root condition secondary to cervical spondylosis. In offering an etiology opinion, the examiner noted that the Veteran's service treatment records reflect that he suffered a left hand contusion while securing an aircraft on the flight desk and that a wheel ran over his hand in 1960. As a result of the injury, the Veteran had to have a fusion of the fourth interphalanageal joint and now has a left fourth finger deformity. The examiner noted that the damage that the Veteran had incurred in this injury was to the left fourth finger, and she also noted that a January 1961 clinical note reflects a complaint of a sore and bruised left forearm. She opined, however, that these in-service complaints have no relationship with the Veteran's nerve conduction to the left hand and the cervical spine. She explained that the Veteran has left hand carpal tunnel syndrome and a nerve root condition secondary to cervical spondylosis and that neither is related to the in-service injury to the left fourth finger. In reviewing this opinion, the Board notes that the examiner did check the box on the examination report form under the direct service connection heading indicating that "[t]he claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. Provide rationale in section c." The examiner also, however, checked the box under the secondary service connection heading indicating that "[t]he claimed condition is less likely than no (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition. Provide rationale in section c." The examiner only provided a rationale in "section c" of the secondary service connection section. The Board has considered whether the examiner's response to the direct service connection etiology question constitutes favorable nexus evidence, or at least warrants a remand for clarification. The Board finds, however, that a grant is not justified and that a remand is not necessary, as the examiner's rationale makes it abundantly clear that there is no link between the currently-diagnosed disabilities and the Veteran's active service. The VA examiner clearly describes the nature of the in-service injuries, making specific reference to reports of treatment the Veteran received for his left hand and forearm while in service, and asserts that the in-service injuries would not have led to the current disabilities. The examiner also expressly asserts a link between a nerve root condition and the Veteran's cervical spondylosis. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In the case at hand, the Board finds that the April 2012 VA examination report is highly probative to the question of whether the Veteran has current left side nerve damage that is linked to his military service. As noted above, the VA examiner who conducted this examination possesses the necessary education, training, and medical expertise to provide the requested opinion. See Cox, supra. This opinion is based in part on the examiner's personal examination and interview of the Veteran. The examination report also contains detailed descriptions of the findings on examination and of the Veteran's pertinent medical history. The report also reflects that the examiner reviewed the Veteran's claims folder, which contained his service treatment records and post-service medical evidence. The VA examination report provides clear diagnoses and persuasive rationale for the etiology opinion, specifically describing the nature of the current disability and the findings that justify the negative nexus opinion. The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Briefly, the Board also notes that, because service connection is not in effect for cervical spondylosis, service connection for nerve root impairment as secondary to cervical spondylosis is precluded as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The only contrary opinion of record comes from the Veteran himself, who believes there is a link between his current left side nerve pain and his active service. The Veteran testified at his October 2009 Board hearing that he believed that his left side nerve problems may be related to multiple injuries suffered in service. In addition to the hand injury that is described above, the Veteran testified that he injured his neck in 1961 when he accidentally ran into the wing of a jet plane and landed on his back. The Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters. A layperson may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 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). However, as a layperson, the Veteran is not competent to assert a causal link between any current left side nerve problems and an in-service accident, especially considering the fact that the Veteran has multiple nonservice-connected disabilities, some of which have been competently linked to his current left side nerve problems. Furthermore, the Board finds that the Veteran has not provided competent evidence of continuity of symptomatology to justify a grant pursuant to Walker. The Board notes that, while the Veteran has reported that he has had left hand and arm problems ever since service, he does not competently demonstrate that his current left side nerve problems are the same as those that he had in service. He testified at his October 2009 Board hearing, for example, that he has had neuromuscular problems related to neck and back injuries and diabetes and thus cannot establish a continuity of carpal tunnel syndrome or nerve root impairment since service. In summary, the Board finds that a preponderance of the evidence is against finding a link between the Veteran's left side nerve damage below the arm and his military service. In the absence of competent evidence of such disability within one year of separation from service, presumptive service connection for this disability must be denied as well. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for left side nerve damage below the arm is not warranted. ORDER Entitlement to service connection for left side nerve damage below the arm is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs