Citation Nr: 1319394 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 06-14 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a left arm disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty in the United States Marine Corps from May 1975 to May 1979, and had subsequent service (with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA)) in the Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Portland Oregon Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Reno Nevada RO. In May 2009, a Travel Board hearing in this matter was held before a Veterans Law Judge who is no longer employed by the Board; a transcript of the hearing is associated with the claims file. In March 2010 and in December 2011 that judge remanded this matter for further development. Upon the retirement of that judge the Veteran was advised (by letter in September 2012) of his right to request another hearing before a Veterans Law Judge who would decide his appeal; he was further advised that if he did not respond within 30 days it would be assumed that he did not desire another Board hearing. He did not respond. The case was thereafter reassigned to the undersigned. A November 2011 statement appears to raise an earlier effective date claim. An August 2012 memorandum by the Appeals Management Center indicates that that is a matter for the RO to address. From the record, it is unclear whether or not the RO has initiated any action on the matter. As the Board does not have jurisdiction over such matter, it is referred to the RO for appropriate action. FINDING OF FACT It is not shown that the Veteran sustained a left arm injury during his active duty service, or during a Federalized period of National Guard service; that a chronic left arm disability (separate and distinct from the service-connected left shoulder disability) was manifested during active duty service; or that he has (or during the pendency of this claim/appeal has had) a chronic disability of the left arm (separate and distinct from his service-connected left shoulder disability). CONCLUSION OF LAW Service connection for a left arm disability is not warranted. 38 U.S.C.A. §§ 106, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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. 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). A VCAA notice letter was sent to the Veteran in September 2005; and additional notice regarding disability rating, and effective date criteria were issued in May 2006. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. Regarding VA's duty to assist, the Veteran's service treatment records (STRs) and pertinent postservice treatment records are associated with his claims file. The Veteran's hearing testimony indicates that he receives Social Security Administration (SSA) disability benefits. VA has a duty to assist the Veteran in obtaining records from other federal government agencies where it has "actual notice" that these records exist. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed Cir. 2010, the U.S. Court of Appeals for the Federal Circuit held, in essence, that only relevant SSA records must be obtained, and that the legal standard for relevance requires VA to examine the information it has related to the medical records and, if there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records. Here, March 2012 VA examination did not find a left arm disability (and the Veteran denied having such disability). As evidence of a current disability is a threshold matter in a claim of service connection (and historical records would not tend to show a current disability), the Board finds that yet another remand for the purpose of securing the SSA records would serve no useful purpose. The Veteran has not identified any pertinent evidence that is outstanding. He was afforded VA examinations in May 2010, and March 2012. The Board finds the March 2012 VA examination adequate for rating purposes, as the examiner expressed familiarity with pertinent medical history, and conducted a thorough medical examination, noting all findings necessary for consideration of the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's duty to assist is met. Legal Criteria, Factual Background and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be evidence of the claimed disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service. 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). The term "active military, naval, or air service" includes periods of Federalized National Guard service. 38 U.S.C.A. §§ 101(22)(23)(24)(27),, 1131 38 C.F.R. § 3.6(C)(3).. [The Board notes that the prior Board decision that awarded service connection for the Veteran's left shoulder disability found that the alleged injury in question in this matter occurred during a qualifying period of service in the Army National Guard.] 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). The Board notes that all of the evidence in the Veteran's claims file and in Virtual VA 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). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In August 2005 the Veteran's filed claims seeking service connection for residuals of a left arm and left shoulder injuries. A December 2011 Board decision awarded him service connection for a left shoulder disability and remanded for further development the matter of service connection for a left arm disability. The Veteran's STRs are silent for complaints, history, treatment or diagnosis of a left arm injury or disability during his active duty service in the Marine Corps. He claims that in the early 1980s, while participating in National Guard activities, he fell, sustaining injuries to the left arm and shoulders. An October 1981 private hospital treatment report shows the Veteran complained of left shoulder and elbow pain after falling on his left side. X-rays were within normal limits. The diagnosis was contusions of the left shoulder and elbow. It was noted in emergency room admittance paperwork that the Veteran's insurance coverage for this injury was from the National Guard, and that the injury occurred during Guard maneuvers. The December 2011 Board decision found that this incident was during a qualifying (Federalized) period of INACDUTRA. . An October 1981 report of The Adjutant General to the Chief, National Guard Bureau describes the incident as follows: [the Veteran] was doing training on the lawn in front of the Armory; he fell on his left side and injured his left shoulder and elbow. He was put on "light duty" for approximately one month. There is no indication in the record that the Veteran had continuing left arm symptoms or required follow-up treatment for the left arm. VA outpatient treatment records are silent for any complaints, treatment, or diagnosis of the claimed left arm disability. On May 2010 VA joints examination, there was no assessment or medical opinion regarding the left arm. That examination focused on the Veteran's left shoulder and knees. The examiner noted a decrease in triceps strength, but a chronic disability of the arm was not diagnosed. On March 2012 VA examination, the Veteran denied having a left arm disorder (distinct from his service-connected left shoulder disability). There was no diagnosis of a left arm disorder. On physical examination no left arm pathology (separate and distinct from the left shoulder disability) was found. The threshold matter that must be addressed here (as in any claim seeking service connection) is whether there is competent evidence that the Veteran actually has the disability for which service connection is sought (a left arm disability). The March 2012 VA examiner did not find such disability; and the Veteran himself has expressed that he does not have a left arm disability separate and distinct from his service-connected left shoulder disability. Accordingly, the Board finds that the threshold requirement for establishing service connection (that there must be evidence of the current disability for which service connection is sought) is not met. In the absence of any proof that the Veteran has a left arm disability there is no valid claim of service connection for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the appeal in this matter must be denied. ORDER Service connection for a left arm disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs