Citation Nr: 1317237 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-05 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for left upper extremity neuropathy, claimed as pain through the hand and wrist. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for fractured left fourth and fifth fingers, to include radicular pain through the hand and wrist. A video conference hearing was held in September 2009 with the Veteran in Chicago, Illinois, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The matter was then remanded by the Board for additional development in September 2010 and February 2012. In October 2012, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination. The action specified in the October 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's current peripheral nerve disability, if any, did not have onset in service and was not caused by or otherwise related to the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for left upper extremity neuropathy, claimed as pain through the hand and wrist, have not been met. 38 U.S.C.A. §§ 1112, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). While neuropathy is not specifically listed as chronic under 38 C.F.R. § 3.303(b), "other diseases of the nervous system" is. Certain chronic diseases, including "other organic disease of the nervous system", may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). 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) (2012). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran filed his initial claim in August 2006. The provisions of 38 C.F.R. § 3.310 were amended effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. Initially, the Board notes that some of the Veteran's service treatment records are missing. After multiple attempts to locate additional service treatment records, a formal finding of unavailability was placed of record by the RO. The Board finds that additional efforts to obtain these records would be futile. See 38 U.S.C.A. § 5103A(b)(3). The Board has considered the U.S. Court of Appeals for Veterans Claims (Court) statement in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: [I]n cases where, as here, the appellant's SMR's have been lost or destroyed, the Board's obligation to provide well reasoned findings and conclusions to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. The Board has undertaken its analysis with this heightened duty in mind. The Veteran contends that he injured his fourth and fifth fingers on his left hand in May 1983 when he fell during an Army training exercise. He contends he felt pain shooting up his arm and his fingers, which were allegedly badly fractured at the time and treated with a splint. Since the injury, the Veteran complains he has suffered with pain, deformity and overall an inability to use his left hand effectively. The Veteran also has made clear that this May 1983 injury is separate and distinct from a September 1982 injury he incurred, which resulted in a fractured index finger on the left hand. The Veteran's service treatment records confirm the September 1982 injury where the Veteran fractured his left index finger, but the records do not reveal a second injury in May 1983. Additionally, there is no evidence in the Veteran's service treatment records of complaints of numbness or tingling in the upper extremities or any diagnosis of neuropathy or related nerve disability. As previously noted, however, the records are incomplete. In fact, the service treatment records do not contain any treatment records after March 1983, to include the Veteran's separation examination. Post-service, there is no medical evidence that the Veteran suffers from a nerve disability of the left upper extremity until more than twenty-five years after separation from service. The Veteran was afforded VA examinations in February 2007 and December 2008 where both examiners found various disorders afflicting the Veteran's left fourth and fifth fingers. In 2007, the Veteran was diagnosed with an old residual mallet finger of his fourth digit at the distal interphalangeal joint, and a residual distal interphalangeal joint injury of the fifth digit with some mild degenerative changes. In 2008, the Veteran was diagnosed with a large bony avulsion adjacent to the distal end of the middle phalanx of the fourth finger, and marked deformity of the fifth finger with narrowing, overhanging bony margins, and cystic change. During each examination, the Veteran reported the above-listed history of injuries to his fingers. Both examiners concluded the diagnosed conditions reflected "residuals" of a prior injury. Significantly, however, the VA examiners found no radiating pain or neurologic findings that would support the Veteran's claim for a separate neurological disability. In May 2009 and December 2009, the Veteran complained of progressive discomfort in the fourth and fifth fingers of his left hand, which he stated were related to fractures sustained in service. At his September 2009 Travel Board Hearing, he again reported breaking his fingers in service while running and being treated with a splint. He complained that since that time, he had experienced pain and swelling, which he treated with medication. He described the pain as "shooting up my arm." Hearing Transcript at 7 (September 4, 2009). At a July 2010 orthopedic consultation, the Veteran described pain in the fourth and fifth fingers of his left hand "shooting from the elbow." He reported a past history of fracture with progressively worsening pain. He was diagnosed with cubital tunnel syndrome and old chronic deformities of the left ring finger and left small finger. VA Hand Surgery Consult (July 23, 2010). In August 2010, he continued to complain of left hand pain that radiated up the arm, but denied weakness. He diagnosed with hand pain of unclear etiology. VA Primary Care Nurse Practitioner Note (August 10, 2010). In June 2011, the Veteran was treated for left hand pain and numbness of which he described as being of twenty or thirty years duration. VA Orthopedic Surgery Outpatient Note (June 10, 2011); VA Ortho Hand/Wrist Consult (June 21, 2011). He was diagnosed with ulnar nerve neuropathy, likely cubital tunnel syndrome. However, a July 2011 nerve conduction study of the left upper extremity was normal, with no electrophysiologic evidence of left cervical radiculopathy, mono-neuropathy, or peripheral neuropathy. Nerve Conduction and EMG Report (July 1, 2011). With respect to the Veteran's claims for pain and numbness in the left wrist and arm, the Board found that further development was required. Specifically, while the evidence reflects that the Veteran sustained injuries of the fourth and fifth digits of the left hand in service, it is not clear whether the Veteran's diagnosed cubital tunnel syndrome or neuropathy of the left upper extremity is etiologically related to those injuries or to the left index finger injury for which he is already service-connected. Notably, neither of the VA examiners in this case, and none of the Veteran's treating physicians, has offered such an opinion. The matter was remanded in October 2012 to afford the Veteran a VA examination and medical opinion. An examination was initially scheduled for November 2011; however the Veteran failed to report. The Veteran reported that notice of the examination was sent to the wrong address. The examination was rescheduled for March 2013. According to a note in the Veteran's claims folder, he refused to report to his scheduled examination. Where entitlement to compensation cannot be granted without a medical examination, and a claimant, without good cause, fails to report to a scheduled examination, the claim shall be rated based on the other evidence of record. 38 C.F.R. § 3.655. Examples of good cause include the illness or hospitalization of a claimant or the death of an immediate family member. In the instant case, the Veteran has not provided any explanation for his refusal to participate in the compensation and pension examination process. Based on the available evidence, entitlement to service connection for left upper extremity neuropathy cannot be granted. First, the Board notes that it is not entirely clear whether the Veteran actually has a current peripheral nerve disability. While several VA treatment records diagnose the Veteran with ulnar neuropathy, likely cubital tunnel syndrome, a July 2011 EMG study found no evidence of cervical radiculopathy, mono-neuropathy, or peripheral neuropathy, calling into question these diagnoses. However, even assuming that the Veteran suffers from a current disability, there is no evidence that this disability had onset in service or that it was caused or permanently aggravated by the Veteran's active military service, to include as secondary to the Veteran's service connected left finger disabilities. Although the Board acknowledges that the Veteran's service treatment records are not complete, no complaints of numbness or radiating pain are noted in the Veteran's available service treatment records. Additionally, no such complaints are noted post-service until at least twenty five years after separation from service. While the Veteran has reported symptoms of pain in his left hand since service, he has also described this pain as progressively worsening and it is unclear from the Veteran's statements at what point he first noticed numbness or pain radiating into his left arm. Significantly, it does not appear that the Veteran described radiating pain or numbness at either the February 2007 or December 2008 VA examinations, providing evidence against his claim. The Veteran described pain "shooting up my arm" at his September 2009 Travel Board hearing; however, when questioned about when his fractured fingers first began to bother him, he stated that they did not bother him in 1983 when he first got out of service, but now he has pain every day radiating into his upper extremity. See Hearing Transcript at 7 (September 4, 2009). Thus, the preponderance of the evidence suggests that the Veteran's neurological symptoms are of relatively recent onset. Accordingly, the Board concludes that any current disability did not have onset in service or within one year of service and that service connection cannot be granted on a direct basis. Additionally, there is no competent evidence to suggest that any left upper extremity neuropathy was caused or permanently aggravated by the Veteran's service connected left finger disabilities. Notably, neither of the VA examiners in this case, and none of the Veteran's treating physicians, has offered such an opinion. To the extent that the Veteran has suggested a relationship between his in-service injuries to his left index, fourth, and fifth fingers and a current peripheral nerve disability, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. While the Veteran has reported work as a "medical clerk", his description indicates this is a clerical position that does not involve treating or diagnosing illness. See Hearing Transcript at 5 (September 4, 2009). The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has left upper extremity neuropathy due to an injury to his fingers in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of any current disability is not competent evidence and is entitled to low probative weight. A VA examination to determine the etiology of any current neurological disability was scheduled, but the Veteran refused to attend and has not provided any explanation for this failure. The Veteran is reminded that, although the VA has a duty to assist in developing the claim at issue, this is not a one way street and that he cannot stand idle when the duty is invoked by failing to provide important information or otherwise failing to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff'd on reconsideration, 1 Vet. App. 460 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992). "The VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Pursuant to VA regulations, the Board has rendered a decision based on the evidence of record, but finds that the preponderance of this evidence is against the Veteran's claim. For the reasons discussed above, entitlement to service connection for left upper extremity neuropathy is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by a November 2006 letter to the Veteran. This letter informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's available service treatment records, as well as VA treatment records. VA has made multiple attempts to obtain the Veteran's missing service treatment records, as well as VA treatment records from April and May 1993; however, a formal finding of the unavailability of these records has been associated with the Veteran's claims file, documenting the steps VA took to locate these records. The Board finds that any further development would be unlikely to produce additional relevant records. The Veteran also was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The questions specifically elicited responses designed to show the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran was afforded VA examinations in February 2007 and December 2008. These examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The RO attempted to schedule the Veteran for a VA examination in March 2013 to determine the etiology of his peripheral nerve disability, but the Veteran failed to report. As the Board previously noted, where entitlement to compensation cannot be granted without a medical examination, and a claimant, without good cause, fails to report to a scheduled examination, the claim shall be rated based on the other evidence of record. 38 C.F.R. § 3.655. Examples of good cause include the illness or hospitalization of a claimant or the death of an immediate family member. Here, the Veteran has not presented such good cause for his failure to appear at his scheduled VA examination. Significantly, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for left upper extremity neuropathy, claimed as pain through the hand and wrist, is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs