Citation Nr: 1317149 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-21 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for right ulnar neuropathy post transposition, to include as secondary to service-connected right hand fracture of the fourth and fifth metacarpals. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to December 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, and a January 2012 rating decision from the Appeals Management Center (AMC) in Washington, D.C. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at the RO in April 2011. A transcript of the hearing is of record. The case was previously before the Board in November 2011 when the claim for entitlement to service connection for bilateral hearing loss was granted and the claim for entitlement to service connection for right ulnar neuropathy was remanded for further development. The case has now returned to the Board for additional appellate action. In January 2012, the Veteran filed a claim for entitlement to service connection for atrial fibrillation to include as due to herbicide exposure. This issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The issue of entitlement to an initial compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's right ulnar neuropathy post transposition is not etiologically related to active duty service or a service-connected disease or injury. CONCLUSION OF LAW Right ulnar neuropathy post transposition was not incurred or aggravated during service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for right ulnar neuropathy as it was incurred due to an in-service injury in July 1969. In the alternative, the Veteran contends that the service-connected residuals of a right hand fracture (incurred in the same 1969 in-service injury) caused or aggravated the ulnar neuropathy. The Veteran testified in April 2011 that he believed his neuropathy began with the improper placement of pins in his right upper extremity during service to treat the hand fracture. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease 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). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. Turning first to whether service connection is warranted on a direct basis, the Board notes that the record clearly establishes the presence of a current disability. An August 2010 letter from the Veteran's private physician notes the presence of right ulnar neuropathy since at least 1988 and the Veteran testified that the condition was initially diagnosed following a work-related injury in 1988. A VA examination conducted in November 2008 confirmed the presence of ulnar neuropathy and the diagnosis was reiterated by a VA specialist in orthopedic hand surgery in a November 2012 report. A current disability is therefore demonstrated. The Board also finds that the record demonstrates an in-service injury. Service records are negative for evidence of complaints or treatment for neuropathy of the right upper extremity, but a right hand fracture is clearly documented as occurring in July 1969 due to boxer-type trauma. The Veteran's right hand was treated with a cast, but the cast was broken due to additional injury in August 1969. The Veteran's fracture was forced out of alignment and he was admitted to the hospital for an internal pinning procedure to stabilize the fracture site. Three weeks later, the pins were removed and the Veteran was released from the hospital. The cast was removed in September 1969, but in October, the Veteran complained of right hand pain. A deformity due to callus formation at the fracture site was identified. No further surgical intervention was indicated and an additional evaluation was recommended prior to separation. The record does not show that any other examination was performed and the December 1970 separation examination was negative for abnormalities of the upper extremities or neurological system. Thus, while there is no evidence of specific neurologic findings or complaints during service, the Veteran clearly incurred an injury to the right hand that required hospitalization and surgery and an in-service injury is demonstrated. With respect to whether the record demonstrates a link between the Veteran's current disability and in-service injury, service records do not indicate such a link. As noted above, no chronic neurological conditions were noted in the service treatment records or during the December 1970 separation examination. In fact, the Veteran's upper extremities and neurological system were normal upon clinical examination at discharge. There is also no medical evidence of ulnar neuropathy until years after the Veteran's separation. The Veteran has dated the initial diagnosis of the condition to 1988, more than 15 years after service, when he injured his right arm in a work-related accident while employed at Bethlehem Steel. There are no medical findings of neuropathy until the November 2008 VA examination. The absence of any clinical evidence for many years after service weighs the evidence against a finding that the Veteran's right ulnar neuropathy was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The weight of the competent medical evidence is also against the claim for direct service connection. In support of the claim, the Veteran submitted an August 2010 letter from his private physician linking the current right ulnar neuropathy to the in-service right hand fracture and surgical repair. The August 2010 medical opinion contains some supportive rationale; the physician noted that the Veteran's injury caused a permanent deformity and progressive atrophy of the hand muscles developed into neuropathy. However, the private doctor did not identify any records or specific evidence (dated during service or after) that supports his opinion. The private physician also completely failed to mention the Veteran's other pertinent medical history, including his 1988 work injury which clearly affected the right upper extremity. The Board therefore finds that the probative value of the August 2010 private medical opinion is lessened. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In contrast, the record contains two medical opinions from VA physicians-including a VA expert in orthopedic hand surgery-that weigh against the claim. First, the Veteran was physically examined by a VA examiner in November 2008. The VA examiner concluded that the claimed right ulnar neuropathy was due to the Veteran's 1988 work injury that resulted in multiple surgeries to the right elbow and transposition of the ulnar nerve in 1993. In a January 2012 addendum report, the same VA examiner further noted that the Veteran's neuropathy was not related, caused, or aggravated by the in-service right hand injury. This opinion was based on the nature of the in-service injury (characterized as acute and transitory based on the service treatment records), the time that lapsed between the initial injury in 1969 and the Veteran's work injury in 1988, and the gruesome nature of the Veteran's injury at Bethlehem Steel that caused a permanent disability and payment with worker's compensation. The second medical opinion against the claim was provided in November 2012 by a VA expert and echoed the findings of the November 2008 VA examiner. The VA expert found that the Veteran's right ulnar neuropathy was unrelated to any in-service injury, to include the residual dorsal angulation of the hand and the placement of pins during the Veteran's August 1969 hospitalization. The VA expert also determined that the Veteran's disability was instead the result of the post-service work injury at Bethlehem Steel in 1988. The VA opinions were both provided following complete review of the claims file, to include the service treatment records, and included fully reasoned and well-supported rationales. See Nieves- Rodriguez, supra. The November 2012 opinion was also provided by a VA expert in orthopedic hand surgery. Hence, the two probative medical opinions against the claim outweigh the single opinion of the August 2010 private doctor. The Board has also considered the Veteran's statements connecting his right ulnar neuropathy to active duty service. The Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1377 (lay persons not competent to diagnosis cancer). The Veteran is competent to testify as to observable symptoms, but his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. Furthermore, the Board notes that the Veteran has not reported a history of continuing symptoms since service. In various statements throughout the claims period and during the April 2011 hearing, the Veteran reported that he believed his neuropathy began as a result of his in-service injury and the surgical placement of pins to stabilize the hand fracture. He contends that his injury and treatment led to the development of neuropathy, but has not reported the incurrence or continuation of neurological symptoms during and since service. The Board discusses the Veteran's reported symptoms in the context of using lay evidence to prove the nexus element of a service connection claim under 38 C.F.R. § 3.303(a) and (d), but not 38 C.F.R. § 3.303(b). See Davidson, 581 F.3d 1313; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The weight of the competent evidence of record is therefore against a nexus between the Veteran's right ulnar neuropathy and active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection on a direct basis. The Board must now determine whether service connection is warranted for the right ulnar neuropathy on a secondary basis. The Veteran contends that his service-connected residuals of a right hand fracture have caused or aggravated his current neuropathy. There is some competent evidence in support of the claim for service connection on a secondary basis. The only medical opinion provided by the Veteran, that of the August 2010 private physician, links the neuropathy to active duty service and appears to also support secondary service connection; however, this aspect of the opinion is unclear. The private doctor clearly states that the Veteran's neuropathy was sustained during service in the 1960s, but the opinion also notes that the Veteran's permanent deformity and progressive atrophy developed a neuropathy. This statement could be interpreted to support service connection on a secondary basis. Whatever the intentions of the private doctor, the August 2010 medical opinion is obviously ambiguous and does not provide strong support in favor of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). On the other hand, the record contains a November 2012 medical opinion from a VA expert in orthopedic hand surgery weighing against secondary service connection. This opinion was fully supported, unambiguous, and as discussed above, is entitled to significant probative value. It therefore outweighs the opinion of the August 2010 private doctor and the Veteran's own lay statements in support of the claim-statements that the Board has already determined are not competent evidence regarding the etiology of the claimed condition. Jandreau, 429 F.3d at 1377. In sum, the post-service evidence of record shows that the first evidence of the Veteran's claimed disability was many years after his separation from active duty. In addition, the competent medical evidence does not establish that the Veteran's right ulnar neuropathy was incurred secondary to the service-connected fracture of the fourth and fifth metacarpals or active service. The Board therefore concludes that the evidence is against a nexus between the Veteran's claimed disability and a service-connected disability or active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b). Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice with respect to a claim based on direct service connection was furnished to the Veteran in an August 2008 letter. Regarding the claim based on secondary service connection, the Veteran was notified of the elements necessary to grant a claim under this theory of entitlement in a February 2011 letter. The claims were subsequently readjudicated in a June 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333. The Veteran has not alleged any prejudice resulting from the lack of tailored notice on the secondary service connection element of the claim. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Moreover, the record contains evidence of actual knowledge on the part of the Veteran. In statements dated during the claims period and in testimony before the Board in April 2011, the Veteran specifically argued that his neurological condition was etiologically related to the hand fracture and accompanying surgery and treatment. The Veteran has, therefore, demonstrated actual knowledge of the requirements for establishing service connection on a secondary basis and the lack of such notification did not result in prejudice to the Veteran. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). A proper VA examination and addendum medical opinion were obtained in November 2008 and January 2012, and the record contains a medical opinion from a VA expert dated in November 2012. VA has obtained available records of treatment reported by the Veteran, including service treatment records and records of VA treatment. The Veteran submitted a letter in support of his claim from a private physician, but did not respond to VA's November 2011 request for a medical release form to allow VA to obtain records from the physician on his behalf. Similarly, the Veteran did not respond to VA's November 2011 request for clarification regarding whether he received disability compensation from the Social Security Administration (SSA). VA's duty to assist the Veteran in developing the facts and evidence pertinent to a claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of Veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). It is clear from the above that VA has done its utmost to develop evidence from non-VA providers and agencies with respect to the Veteran's claim. Any failure to develop this claim rests with the Veteran himself. The Board also finds that VA has complied with the November 2011 remand orders of the Board. In response to the Board's remand, the Veteran was contacted in a November 2011 letter and asked to provide medical release forms to allow VA to obtain records from private physicians identified as treating the disability on appeal. The Veteran was also asked to clarify whether he was in receipt of compensation from the SSA. As noted above, no response to these requests was received. VA also obtained additional records of treatment from the Lebanon VAMC and obtained an addendum medical opinion from the November 2008 VA examiner. While the November 2011 remand also ordered that the Veteran should be provided notice of the requirements for substantiating a claim based on secondary service connection, the Veteran has demonstrated actual knowledge of the elements for a grant of the claim on a secondary basis. He also received general notice regarding secondary service connection in a February 2011 letter and has not alleged any prejudice resulting from the lack of tailored notice on this aspect of the claim. See Mayfield, supra. The case was then readjudicated in a June 2012 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the duties to notify and assist ORDER Entitlement to service connection for right ulnar neuropathy post transposition, to include as secondary to service-connected right hand fracture of the fourth and fifth metacarpals, is denied. REMAND In February 2012, the Veteran filed a notice of disagreement with a January 2012 rating decision assigning an initial noncompensable evaluation effective July 23, 2008 for the award of service connection for bilateral hearing loss. He has not been provided a statement of the case (SOC) in response to the notice of disagreement and a remand is therefore required for the issuance of a SOC on this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a SOC to the appellant and his representative on the issue of entitlement to an initial compensable evaluation for bilateral hearing loss. The Veteran should also be informed of the requirements to perfect an appeal with respect to this issue. If the Veteran perfects the appeal, ensure that any indicated development is completed before the case is returned to the Board. The appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs