Citation Nr: 1316328	
Decision Date: 05/17/13    Archive Date: 05/29/13

DOCKET NO.  09-42 253A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for radiculopathy and peripheral neuropathy of the right upper extremity, to include as secondary to spinal disabilities and a traumatic brain injury (TBI).

2.  Entitlement to service connection for radiculopathy and peripheral neuropathy of the left upper extremity, to include as secondary to spinal disabilities and a TBI.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from October 2003 to November 2008.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO).  In his November 2009 VA Form 9, substantive appeal, the Veteran requested a Travel Board hearing.  Such a hearing was scheduled for February 16, 2012; the Veteran failed to report.  An interim May 2011 RO rating decision granted service connection for posttraumatic stress disorder (PTSD), residuals of cervical strain, residuals of thoracic/lumbar strain, tinnitus, and residuals of right knee strain.  As such decision represents a full grant of the benefits sought on appeal with regard to those issues, these matters are no longer before the Board.

This case was previously before the Board in July 2012 when these two issues remaining on appeal were remanded for additional development.  The July 2012 Board decision granted service connection for headaches, claimed as residuals of a TBI.  The Board remanded the additional issues of entitlement to service connection for other residuals of a TBI; during the processing of the remand a February 2013 RO rating decision granted service connection for TBI.  As these decisions represent a full grant of the benefits sought on appeal with regard to service connection for TBI and its residuals, these issues are no longer before the Board.

Following the grant of service connection for TBI and its residuals, the Appeals Management Center issued a supplemental statement of the case (SSOC) addressing the upper extremity service connection issues remaining on appeal but also addressing an additional increased rating issue that is not properly in appellate status.  Specifically, the February 2013 SSOC adds the issue of "Entitlement to an evaluation in excess of 40 percent for traumatic brain injury (TBI)."  The February 2013 grant of service connection for TBI has not been followed by any notice of disagreement to initiate an appeal of the initial assignment of a disability rating, and such an issue has not been otherwise made part of this appeal currently before the Board.  The Board finds that there is no increased rating issue currently on appeal before the Board.  If the Veteran desires to initiate an appeal concerning the initial rating assigned for his TBI in February 2013, he may submit a notice of disagreement with that determination within a year of the February 2013 rating decision.


FINDINGS OF FACT

1.  Any radiating pain in the upper extremities associated with the Veteran's service-connected spine disabilities is service connected, and encompassed by the ratings assigned for such disabilities.

2.  The Veteran is not shown to have (or at any time during the pendency of his claim to have had) radiculopathy or peripheral neuropathy of the right upper extremity separate and distinct from the radiating pain from his spine disability.

3.  The Veteran is not shown to have (or at any time during the pendency of this claim to have had) radiculopathy or peripheral neuropathy of the left upper extremity separate and distinct from the radiating pain from his spine disability.


CONCLUSIONS OF LAW

1.  Service connection for radiculopathy and peripheral neuropathy of the right upper extremity is not warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012).

2.  Service connection for radiculopathy and peripheral neuropathy of the left upper extremity is not warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: 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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication.  A notification letter sent in February 2009 explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  This letter also informed the Veteran of disability rating and effective date criteria.  He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate.

Copies of the Veteran's service treatment records (STRs) are associated with his claims file.  The Veteran's pertinent available postservice treatment records have been secured.  He was afforded a VA examination with medical opinion addressing the instant matter in January 2011 (with an August 2012 addendum).  As discussed below, the Board finds that the January 2011 VA examination report (following the August 2012 clarifying addendum) is adequate for the purposes of this decision.  The Board finds there has been compliance with the instructions of the July 2012 Board remand regarding the matters at hand (directing that an addendum to the January 2011 VA examination report be prepared to clarify responses to the pertinent diagnostic and etiological questions at issue); the August 2012 VA examiner's addendum adequately addresses the pertinent questions.  The Veteran has submitted evidence and has not identified any additional pertinent evidence that remains outstanding.  Accordingly, the Board finds that VA's duty to assist is met and will address the merits of the claim.

Legal Criteria, Factual Background, and Analysis

Initially, the Board notes all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic database storage), with an emphasis on the evidence relevant to this appeal, has been reviewed.  Although the Board has 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 Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.  Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  In the absence of proof of a current disability, there is no valid claim of service connection.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury.  Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of a current disability (for which secondary service connection is sought); (2) evidence of a service connected disability; and (3) competent evidence that the current disability was either (a) caused or (b) aggravated by the service connected disability.  38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995)(en banc).  Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision.  The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted.  In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after aggravation occurred.  As the Veteran's claim was not pending prior to the effective date of the revised 38 C.F.R. § 3.310, the revised version of the regulation is for application in this case.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

A layperson is generally not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997).  Lay evidence may be competent evidence to establish incurrence.  See Davidson v. Shinseki, 381 F.3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, competent medical evidence is necessary when the determinative question is one requiring medical knowledge.  Id.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson.  38 C.F.R. § 3.159(a)(2).

The Board finds that service connection is not warranted for radiculopathy or peripheral neuropathy of either upper extremity in this case because, after significant development of the medical evidence on this question, the probative medical evidence indicates that the Veteran has not had radiculopathy or peripheral neuropathy of either upper extremity during the pendency of this claim (aside from radiating pain which is contemplated in the ratings assigned for the service-connected spine disabilities).  Moreover, the Board finds that there is no diagnosis of any other manner of upper extremity neurological disability manifesting in the claimed symptoms during the pendency of this claim; there is no diagnosed upper extremity disability for which service connection is sought in this case.

Currently, the Veteran has established the following as service-connected disabilities: posttraumatic stress disorder (PTSD), TBI, residuals of cervical strain, residuals of thoracic/lumbar strain, residuals of right knee strain, tinnitus, and headache disorder.
The Veteran's service treatment records clearly document that the Veteran reported symptoms pertinent to this appeal during active duty service.  In this regard, the Board notes that the Veteran's September 2008 service separation examination report includes his description that his "fingers and toes occasionally go numb after running and during running...."  No diagnosis of a chronic disability of the upper extremities was found by medical professionals in connection with these complaints; the September 2008 separation examination report indicates no pertinent medical diagnosis and specifically shows that the Veteran's upper extremities were examined and found to be clinically normal at that time.

VA treatment records document the Veteran's post-service complaints of upper extremity symptoms.  For instance, a December 2010 VA treatment report shows complaint of "numbness and tingling in bilateral arms R>L with certain positions and movements."  A February 2011 VA treatment report shows that the Veteran reported "numbness, tingling, pain" in his "neck, right arm."  It appears that these complaints were noted as part of the evaluation and treatment of the Veteran's service-connected cervical spine disability.  The VA treatment records otherwise contain no indication of objective findings or diagnosis of neurological disability of either upper extremity.

The Veteran is competent to report his experience of symptoms such as pain and discomfort in his upper extremities.  To the extent that radiculopathy/radiating pain originating with his service-connected cervical spine disability may be manifesting in upper extremity pain, the Board must note that such symptomatology is contemplated in the rating already assigned for the service-connected cervical spine disability.  The general rating formula for pertinent disability ratings for diseases or injuries of the spine contemplates such disability with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  See 38 C.F.R. § 4.71a, Diagnostic Code 5237.  The Board also notes that the Veteran has service-connected disabilities of the thoracic and lumbar spine.  To the extent that the Veteran experiences radiculopathy/radiating pain in his upper extremities associated with his service-connected disabilities of the spine, such is contemplated in the ratings currently assigned to the Veteran's spinal disabilities under the general rating formula.  Assigning a separate rating to the radiculopathy would result in the evaluation of the same disability under various diagnoses, which is prohibited.  38 C.F.R. § 4.14.

The Board has reviewed this appeal with a focus upon determining whether the evidence of record shows that the Veteran has a disability of either upper extremity that is distinct from the symptoms contemplated in ratings assigned for his already established service connected disabilities.  In particular, in consideration of the Veteran's contentions, the Board has sought to determine whether the Veteran has peripheral neuropathy of either upper extremity for which service connection may be established.  However, the competent evidence of record does not show that peripheral neuropathy or any other manner of upper extremity neurological disability for which service connection may be established has been diagnosed.  Service connection for a disability of upper extremity peripheral neuropathy or other pertinent disability cannot be warranted without competent evidence that a pertinent chronic disability of either upper extremity exists.  The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection; an appellant's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability.  Brammer v. Derwinski, 3 Vet.App. 223 (1992).

On January 2011 VA examination, which included testing specifically conducted for the purpose of identifying any claimed upper extremity neurological disability, no abnormality of either upper extremity was found .  Reflexes were all normal.  Coordination was normal.  Sensation was normal.  A detailed motor examination had fully normal results with normal muscle tone noted and no muscle atrophy found.  In the clear absence of any pertinent abnormal findings, the January 2011 VA examination report provides no basis for finding a diagnosis of upper extremity radiculopathy or peripheral neuropathy.  The Board acknowledges that the report includes notation of the Veteran's description of his symptom complaints in connection with a line reading "Diagnosis: Residuals of Claimed bilateral upper extremity radiculopathy/neuropathy."  This content does not indicate that objective evidence of the "claimed" disability was found (the examination findings clearly indicate that no objective evidence of pertinent upper extremity disability was found), but merely describes that the Veteran has reported pertinent symptoms dating back to his military service.

In July 2012, the Board remanded these issues to obtain complete clarity with regard to the somewhat conflicting indications raised by the January 2011 report's finding of no upper extremity abnormalities while also referring to a "diagnosis" of residuals of "claimed" upper extremity radiculopathy/neuropathy.  In accordance with the Board's remand directives, an August 2012 addendum to the January 2011 VA examination report was prepared and added to the record.  The VA examiner reported a re-review of the claims file and VA medical records and concluded: "The veteran does not have a current or remote diagnosis of 'bilateral upper extremity radiculopathy/neuropathy."  The examiner explained that the Veteran has been seen by multiple different providers and that none of the medical documentation supports finding a diagnosis of radiculopathy/neuropathy of the upper extremities.  The examiner's discussion cites that the Veteran "has had normal sensory and motor exams by different providers."  The examiner also noted that the Veteran's cervical MRI in December 2010 was normal and that he "'no showed' for ordered upper extremity EMG/NCN on 2-25-2011."

The threshold question that must be addressed here, as in any claim seeking service connection, is whether the Veteran actually has (or during the pendency of his claim has had) the disability for which service connection is sought, a neurological disability (radiculopathy or peripheral neuropathy) of either upper extremity.  Upon thorough development of the evidence regarding this threshold matter, it is not shown that he has a neurological disability entity of either upper extremity.  There is no diagnosis in the record of such disability, and the August 2012 addendum to the January 2011 VA examination report presents a clear competent medical explanation that the Veteran's documented medical history does not support a diagnosis of a neurological disability of either upper extremity.

While it may reasonably be conceded (for the purpose of this appeal) that the Veteran has had some symptoms of numbness in the upper extremities during his active duty service, it is not shown that a diagnosable neurological disability of an upper extremity was manifested therein.  The record also does not show that the Veteran now has, or at any time during the pendency of this appeal has had, a diagnosable neurological disability of an upper extremity.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of having a current disability is met "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"). 

In light of the August 2012 addendum to the January 2011 VA examination report, and the absence of a diagnosis of neurological disability of either upper extremity (or objective findings of such) in any evidence of record, the Board finds that the Veteran has not shown he has had a neurological disability of either upper extremity during the pendency of this appeal.  The January 2011/August 2012 VA examiner's opinion discusses the pertinent evidence of record, addresses the information that might support the Veteran's claim (his documented history of subjective symptom complaints), and explains the medical conclusion that a diagnosis of an upper extremity neurological disability is not warranted.  The Board finds the January 2011/August 2012 amended VA examination report to be adequate and probative medical evidence regarding whether or not the Veteran has/has had a neurological disability of either upper extremity.

Notably, the examiner's finding that the Veteran has not had a neurological disability of either upper extremity during the pendency of this appeal is not firmly contradicted by any competent medical evidence of record.  Although the Veteran has clearly complained of upper extremity symptoms which have received medical treatment (for pain radiating from his service-connected spine disabilities) such complaints have not been found to represent a separate neurological disability entity of an upper extremity.  As was noted, diagnostic testing of the Veteran's upper extremities found no abnormalities.  The Board finds no basis to draw a conclusion to the contrary.

The Veteran is not competent to establish a diagnosis of a chronic neurological disability of either upper extremity, as such a diagnosis requires specialized medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court).  In Jandreau, the Federal Circuit specifically determined that a layperson is not considered competent to testify when the issue was medically complex, as is the question of a specific neurological diagnosis in this case (especially considering the indications that some of the Veteran's upper extremity symptom complaints are radiating pain manifestations of his service-connected disability of the spine).  He has not provided any competent evidence supporting that he has a neurological disability of either upper extremity (or has had such a disability during the pendency of this appeal); he has not submitted a supporting medical opinion on this point, nor does he cite to supporting factual data or medical literature.  He is a layperson with no medical training.  He otherwise offers no explanation of rationale for his assertion for the Board to weigh.  Consequently, his own opinion is not competent evidence in the matter.  

In the absence of any competent evidence that the Veteran has had a chronic neurological disability of either upper extremity during the pendency of this claim, he has not presented a valid claim of service connection for such disability.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  In the absence of a showing of the existence of the claimed disabilities, there can be no award of service connection for such disabilities.  Accordingly, the appeal in these matters must be denied.


ORDER

Service connection for radiculopathy and peripheral neuropathy of the right upper extremity is denied.

Service connection for radiculopathy and peripheral neuropathy of the left upper extremity is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs