Citation Nr: 1317210 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 06-36 548 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to service connection for disability of the right upper extremity, to include the right arm, shoulder, and/or hand. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to September 1980, from March 1981 to July 1992, from June 2001 to June 2002, and from February 2003 to June 2003. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2005 rating decision in which the RO denied service connection for a right arm, shoulder, and hand disability, as well as denied service connection for residuals of a head injury (to include headaches and memory loss), residuals of hypothermia, tinnitus, and right knee disability. The Veteran perfected an appeal as to these issues. In June 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In January 2011, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development, to include obtaining VA medical evaluations. After accomplishing further action, in August 2012 rating decision, the AMC granted service connection for residuals of a head injury (to include headaches and memory loss), residuals of hypothermia, tinnitus, and right knee disability. As these awards constitute the full benefit sought with respect to these disabilities, those claims are no longer before the Board. The AMC continued to deny the remaining right arm, shoulder, and hand disability claim (as reflected in September 2012 supplemental SOC (SSOC)), and returned this matter to the Board for further appellate consideration. In December 2012, this claim was again remanded to the RO, via the AMC, specifically for the RO to issue another SSOC to the Veteran's current correct address. The Board observes that, since the Veteran filed his August 2004 claim for right upper extremity disability, pertinent diagnoses have included right shoulder rotator cuff strain, right wrist tendonitis, and right elbow ulnar nerve neuropathy, and x-rays have revealed degenerative changed . The United States Court of Appeals for Veterans Claims (Court) has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.") A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (to the effect that the Board is required to consider all issues raised either by the claimant or the evidence of record); 38 C.F.R. § 3.159(c) (2012). In light of Brokowski, Robinson, and Clemons, the Board finds that the issue of entitlement to service connection for a right upper extremity encompasses all reasonably raised diagnoses, to include right rotator cuff strain, right wrist tendonitis, right elbow ulnar nerve neuropathy, and any possible arthritis of the right shoulder and/or hand.. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Although service treatment records reflect the Veteran's complaints of right forearm pain, right elbow strain, and a soft tissue injury, there is no credible evidence of any chronic right upper extremity problems during, or continuing since, service; no competent evidence of any right upper extremity disability for many years after service; and the only medical opinion evidence on the question of whether there exists a medical nexus between any currently disability affecting the right upper extremity and service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for a disability of the right upper extremity, to include the right arm, shoulder, and/or hand are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) ). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a November 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a service connection claim, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The March 2005 RO rating decision reflects the initial adjudication of the claim after issuance of the May 2004 letter. Post rating, a September 2007 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the September 2007 letter, and opportunity for the Veteran to respond, the March 2013 supplemental SOC (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service treatment records, VA treatment records, and the reports of March 2005 and October 2011 VA examinations. Also of record and considered in connection with the claims is the transcript of the June 2010 Board heating, along with various written statements, provided by the Veteran, and by his representative, on his behalf. The Board finds that no further RO action on this claim, prior to appellate consideration, is required. Specifically as regards the Board hearing, it is noted that the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: (1) to explain fully the issues, and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). The hearing transcript in this case reflects that, during the hearing, the undersigned Veterans Law Judge identified all pertinent issues potentially before the Board, to include the matter herein decided. During the hearing, the undersigned clearly discussed with the Veteran the bases for the RO's denial of the claim, and, along with the Veteran and his representative discussed potentially relevant evidence which might affect the outcome of the claim, to include medical opinion evidence. Moreover, the record was left open for a period of 60 days after the hearing to give the Veteran and his representative further opportunity to submit and obtain supporting evidence. Subsequently, in August 2010, the Veteran's representative submitted additional medical and lay evidence to the Board. Accordingly, the Bryant duties were thereby met, and the hearing is deemed legally sufficient. As for other additional evidence, as noted, the Board sought further development of the claim in January 2011 and December 2012. In January 2011, the Board instructed the RO/AMC to obtain any additional VA treatment records since March 2007 and to send the Veteran another letter requesting any additional information and/or evidence. Thereafter, the RO/AMC was directed to arrange for the Veteran to undergo VA examination after all the pertinent records were associated with the claims file. Additionally, in December 2012, the RO/AMC was instructed to issue a SSOC to the Veteran's current address on file. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v West, 11 Vet. App. 268, 271 (1998). In February 2011 and January 2013, the RO/AMC sent a letter to the Veteran requesting information concerning any additional information and evidence with respect to his claim. The RO obtained VA treatment records since March 2007, which have been associated with the claims file and Virtual VA electronic record. Moreover, the Veteran was afforded another VA examination in October 2011. The examiner exhibited sufficient medical expertise to perform the examination and the examination is adequate for appellate review. Finally, the RO/AMC re-issued a SSOC to the Veteran's correct address in March 2013. Accordingly, the Board finds that the RO/AMC have substantially complied with the Board's remand directives. See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran is seeking service connection for a right upper extremity disability. In statements of record and during his Board hearing, he has asserted that his right upper extremity disability is due to anthrax shots he received during service, or to complaints noted therein. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from 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). Service connection may be presumed, for certain chronic diseases, such as arthritis which develop to a compensable degree (10 percent for arthritis) within a prescribed period after discharge from service ([one year for arthritis]), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). As an identified chronic disease, arthritis may be subject to service connection based upon a showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim must be denied. Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, with respect to this claim. The Veteran's service treatment records reference various complaints regarding his right shoulder, arm, and hand. In May 1981, the Veteran was seen and treated for a complaint of sharp pain in his right forearm. In October 1982, the Veteran was seen and treated for a complaint of sharp pain to the posterior forearm and elbow. Physical examination revealed that his right arm range of motion was limited on extension at the elbow; his fingers and wrist were within normal limits; there were no signs of neurological or vascular system involvement; there was no swelling; there was no sign of a fracture present. Right elbow strain and soft tissue injury was diagnosed. Ace wrap was applied; he was instructed to return to the clinic if he had any further problems. In October 1990, the Veteran was seen for a complaint of right wrist pain after sustaining a fall. X-ray taken at the time was normal, and right wrist strain was diagnosed. There are no further references in the Veteran's service treatment records specifically pertaining to the Veteran's right upper extremity. Subsequent clinical evaluations, to include June 2003 separation examination, document no complaints from the Veteran pertaining to his right upper extremity. Clinical evaluation of his upper extremities was normal. With respect to post-service medical evidence, VA outpatient treatment records dated from January 2003 to August 2012 note pain in the right arm and shoulder in an August 2003 treatment record. The Veteran expressed that he believed that this pain was related to anthrax shots administered during service. The Veteran was afforded a VA examination and neurology examination in March 2005. As a result of these examinations, it was determined that the Veteran had intermittent episodes of swelling of the right upper extremity following an anthrax booster shot with no obvious neurologic cause. The examiner also found right cervical radiculopathy not related to the anthrax booster, and possible right carpal tunnel syndrome, also not related to anthrax booster shot; and probable tendonitis right posterior shoulder region. In a September 2006 VA treatment record, the Veteran reported that on the previous day he felt a right shoulder pain/pop while lifting a heavy metal platform. Right shoulder cuff strain was diagnosed. In a March 2009 VA occupational health record, the Veteran reported right wrist pain. X-ray showed no fracture. Right wrist sprain was diagnosed. In a September 2011 VA treatment record, the Veteran reported that he recently injured his shoulder on the job as a security guard. Pursuant to the January 2011 remand, the Veteran was examined again in October 2011. During that examination, the Veteran reiterated his contentions that he experienced pain in his right shoulder when he had immunizations in service in the 1990s. He also reported that post service he has had several injuries to his upper extremities as a result of his employment. Physical examination of the right upper extremity revealed localized tenderness. X-ray of the right shoulder revealed mild arthritic changes at the acromioclavicular joint; X-ray of the right wrist was normal. X-ray of the right hand revealed mild osteoarthritic changes at the distal joints of both index fingers. The October 2011 rendered opinions with respect each identified disability of the right shoulder, arm and hand. The examiner opined that the Veteran's current right shoulder condition was as likely as not related to the post-service lifting injury and less likely related to any event noted in service. The examiner further opined that the Veteran's current ulnar nerve neuropathy at the elbow was most likely associated with his ongoing elbow pressure while using the computer during the past 2 years; and less likely related to his military service. The examiner also opined that the Veteran's current right wrist strain and tendonitis was more likely than not secondary to his postservice injury and less likely related to the single complaint noted in service. And finally, the examiner opined that the Veteran has minor age related X-ray findings on his right hand, but no significant abnormalities, and therefore his current right hand condition is less likely as not related to his military service. The evidence of record clearly reflects that, pertinent to this appeal, the Veteran has been diagnosed with various disorders affecting his right upper extremity-right shoulder rotator cuff strain, right wrist tendonitis/strain; and right ulnar elbow nerve neuropathy. Also, X-rays revealed minor degenerative changes to the Veteran's right shoulder and right hand although . As such, the element of current disability, with respect to the claim, has been met. The record also reflects that the Veteran was seen and treated in service for right upper extremity complaints, to include the right wrist, shoulder, and elbow; however, there is no indication that any such problems disorders were chronic in nature, and in fact appeared to have resolved. Indeed, the Veteran was seen in May 1981, October 1982, and October 1992; and each time returned to duty. Furthermore, on subsequent examinations, to include final discharge examination in June 2003, the Veteran did not offer any right upper extremity complaints; and clinical evaluation of his right upper extremity was normal. As noted, X-rays of the right shoulder and right hand in October 2011 revealed minor degenerative changes, which the examiner described as age-related. There is no medical evidence whatsoever even suggesting that the Veteran manifested any arthritis in his right upper extremity during his first post-service year, service connection for right upper extremity arthritis as a chronic disease is not warranted on a presumptive basis. See 38 U.S.C.A. §§ 1101(3), 1112, 1137; 38 C.F.R. § 3.307, 3.309(a). Also, as for the Veteran's assertions as to in-service right upper extremity injury and continuous associated symptoms are not deemed credible, the Veteran cannot establish service connection for arthritis on the basis of continuity of symptomatology, pursuant to 38 C.F.R. § 3.303(b) and Walker. Indeed, as noted the service treatment records document complaints of right forearm, elbow, and wrist in May 1981, October 1982, and October 1990 respectively; however, on subsequent evaluations, to include separation, re-enlistment, and final June 2003 discharge examination, the Veteran offered no complaints pertaining to his right upper extremity disability. This evidence, combined with the lack of subsequent complaints or treatment for right upper extremity problems during the remainder of service, the Veteran's denial of having upper extremity problems at separation from service, and the evidence showing normal upper extremities at separation from service, weighs against the Veteran's assertion of having chronic right upper extremity pain during service, including as a result of the in-service injury, and renders his report of such incredible. As no chronic right upper extremity disability or problems was demonstrated during service, what is needed to establish service connection is competent (medical) evidence that relates current right upper extremity disability to his service. That is a medical question. Here, however, the only competent (medical) opinion evidence on the question of whether there exists a medical nexus between any current right upper extremity disability and service consists of the opinions of the March 2005 and October 2011 VA examiners who each opined, in essence, that the Veteran's current right upper extremity disabilities are unrelated to his service, to include the anthrax booster shot. As the October 2011 opinion, in particular, was based upon examination of the Veteran, and consideration of his documented history and assertions, the Board finds that such opinion-when considered in tandem with the March 2005 opinion-is probative of the medical nexus question. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (holding that determinations as to the credibility and weight to be attached to medical opinions are within the province of the Board). Significantly, neither the Veteran nor his representative has submitted or even identified any contrary opinion-i.e., one that, in fact, supports a finding of a medical relationship between any current right upper extremity disability and service. The Board acknowledges the Veteran's own contentions that current right upper extremity disability is related to the complaints noted in service, to include his contentions that such disability is related to the anthrax booster shot. In this regard, the Board notes that as a layperson, the Veteran is competent to provide testimony or statements relating to symptoms or facts of events he has observed and is otherwise within the realm of his personal knowledge. See e.g., Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent, under certain circumstances, to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, the Veteran is not competent to establish that which would require specialized knowledge or training, such as medical expertise. See 38 C.F.R. § 3.159 (2012); see also See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). In the instant case, the Board points out that no current disability for which service connection is sought is capable of lay observation, and that the question of whether there exists a medical relationship between each current disability and the Veteran's military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that, as a lay person without appropriate medical training and expertise, the Veteran simply is not competent to opine on such a complex medical question. As such, his unsupported assertions as to medical etiology of any right upper extremity disability have no probative value. The Board reiterates that in this case, there is medical opinion that relating any current right upper extremity disability to the complaints noted in service, to include his contentions that such disability is related to the anthrax booster. And, while the Veteran may be competent to describe his symptoms since service, he is not able to attribute any such symptoms to a particular disorder. Thus, as noted elsewhere, service connection by way of continuity of symptomatology is also not supported by the evidence in the record. Based on all the foregoing, the Board concludes that the preponderance of the evidence weighs against a finding that the Veteran's current right upper extremity disability is etiologically related to his military service, to include the complaints noted therein. As such, the benefit-of-the- doubt doctrine is not for application, and the claim on appeal must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a disability of the right upper extremity, to include the right arm, shoulder, and hand, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs