Citation Nr: 1319879 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-44 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a left arm injury. 2. Entitlement to service connection for residuals of a broken left wrist. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from June 1965 to June 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. In June 2010, the Veteran testified during a hearing before RO personnel. A transcript of that hearing is associated with the claims file. Pursuant to the Veteran's request, he was scheduled for a Travel Board hearing in October 2012. However, he did not report for the scheduled hearing. Good cause has not been shown and no request had been received to reschedule. A February 2013 documentations showing a telephone call with the Veteran revealed that he did not think there was any point in having a hearing, since he had already submitted all the evidence. The Veteran was informed that the case would be forwarded to the Board for a decision. . FINDINGS OF FACT Left arm and left wrist disabilities were not demonstrated during service or until many years later; and there is no competent medical evidence showing a relationship between either disability and active service. No injury to the left arm or left wrist was noted in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left arm injury are not met and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for residuals of a broken left wrist are not met and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (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 CONCLUSIONS Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in November 2007 and May 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent July 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. The Board notes that in the Veteran's claim for VA benefits, he indicated that he fractured his left wrist in September 1967. A line of duty report was requested for September 1967. In November 2007, the National Personnel Records Center (NPRC) responded in the negative to the request for records, noting that no line of duty report was on file. In May 2008, the RO obtained private medical records from J. Sidari, M.D., as was identified and authorized by the Veteran. The Board also notes that in a May 2012 notice letter, the Veteran was requested to submit evidence that his claimed left arm injury and residuals of a broken left wrist had existed from service to the present time, to show when his claimed arthritis began, to provide the approximate date in which he fractured his left wrist in service and the name of the hospital and its location, and to return a completed VA Form 21-4142 for each health care provider to authorize VA to obtain treatment information. In the alternative, he was requested to submit any treatment records for his claimed conditions. He was also requested to identify if and where he received treatment at a VA medical facility. In May 2012, the RO again requested that the NPRC research a line of duty report for a wrist injury from September 1967 to December 1967. Later that same month, the NPRC responded that the document or information requested was not a matter of record. In September 2012, the Veteran submitted a single VA form 21-4142 that he signed, but he did not to identify any hospitals or health care providers. In a February 2013 report of general information, the Veteran, via telephone, advised VA personnel that he was never able to obtain records from the Londonderry Hospital and that he believed his records were lost. The Veteran has not provided information that identifies and authorizes VA to obtain any evidence regarding his claimed in service injuries or treatment for the claimed injuries or manifestations thereof, after service. VA's duty to assist is not a one-way street; the Veteran also has an obligation to assist in the adjudication of his claim. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA has not obtained an examination with respect to the claims on appeal. However, the Board finds that there is no credible evidence that Veteran suffered an in-service injury to his left arm or left wrist. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Thus, the Board has no grounds for obtaining a VA examination and medical opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran provided testimony before RO personnel in June 2010. He did not report for a scheduled videoconference hearing before a member of the Board in November 2012, later indicating to the RO in a February 2013 telephone contact that he did not think there was any point in having the hearing. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That 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); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be presumed for certain chronic diseases, including arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. 3.307, 3.309(a) (2012). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. That rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2012). 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. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). The service medical records are negative for complaints, symptoms, findings, or diagnoses of any left arm or left wrist disability. The service medical records are negative for findings of any fracture to the left wrist. The Veteran's June 1968 separation medical examination report shows that the Veteran's upper extremities were evaluated as clinically normal. No x-rays of the Veteran's left arm or left wrist are of record. There was no notation or any indication that the Veteran had suffered an injury to his left upper extremities or a fracture of the left wrist during service. There are no line of duty determinations as to a left wrist injury or related physical profiles of record. In the Veteran's September 2007 claim for VA benefits, he stated that he suffered a left arm injury from a car accident in April 1967 and was treated on base while in Londonderry, North Ireland. He stated that in September 1967 he suffered a broken left wrist and was treated off base. VA medical records are negative for any complaints, symptoms, findings, or diagnoses of any left arm or left wrist disability. An August 2007 VA medical record shows that the Veteran underwent an initial consultation and that he provided a history of various medical conditions and past medical history. However, there was absolutely no mention of left arm or left wrist disabilities, symptoms, injuries, or diagnosis. Private medical records from J. Sidari, M.D., dated from May 2006 to May 2008, are negative for complaints, symptoms, findings, or diagnoses of any left arm or left wrist disability. In a January 2008 VA form 21-4138, the Veteran stated that he had a full body scan at a private imaging center and that scan indicated he had a broken wrist. He further stated that while in Northern Ireland during service he suffered a broken wrist by a fall on a slippery surface. Also in Ireland, he was in a car accident causing bumps, bruises, and scratches. It was reported to the officer of the day and local authorities and he was treated at sickbay. In a letter dated in February 2010, J. F. Sidari, M.D. stated that the Veteran continued to be treated for chronic tendinitis of the left wrist secondary to fracture of the left wrist in service. Dr. Sidari continued that the Veteran also had been treated for chronic tendinitis of the left elbow and a tear of the extensor tendon from a service-related injury. Dr. Sidari stated that the Veteran had been treated with multiple steroid injections and NSAIDs over the last several years. During the June 2010 RO hearing, the Veteran testified that his left arm did not get hurt in the car accident, but, that his arm and wrist were otherwise hurt in service. When asked if the Veteran had a physical profile for his arm in service an answer responsive to the question was not provided. When asked if he sought treatment for the claimed conditions within a year of leaving service, the Veteran stated that since he went to my family doctor, he couldn't tell the dates. When asked if his family doctor would have records dating as far back as 1968 or 1969, the Veteran stated that he had no records and then referred to and read into the record the February 2010 opinion letter from Dr. Sidari. Considering the evidence of record in light of the above, the Board finds that service connection for a left arm injury and for residuals of a broken left wrist is not warranted. In this case, after service there is no showing of history, complaints, or findings of a left arm disability or a left wrist disability, to include arthritis, within the one-year period immediately following the Veteran's discharge from service in June 1968. In fact, VA medical and private medical records associated with the claims file are negative for a history of left arm injury or left wrist injury, including a fracture, or any residual complaints or findings until the Veteran's private physician provided a nexus letter in support of the claim for VA benefits in February 2010. Interestingly, that same private physician's medical treatment records are also negative for any medical history, findings, or complaints related to the left arm or wrist. Medical documentation showing diagnoses of a left arm disability and a left wrist disability are not shown until February 2010, approximately 40 years following service separation. That period of time weighs against the claim. Maxson v. West, 12 Vet. App. 453 (1999). In support of his claims, the Veteran and his accredited representative assert that Dr. Sidari's medical opinion supports the Veteran's claims and therefore, he should be granted service connection for the two disabilities on appeal. The Board disagrees. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). An examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121 (1991). Transcription of lay history, unenhanced by additional comment by the transcriber, does not constitute competent medical evidence merely because the transcriber is a health care professional and a medical professional is not competent to opine as to matters outside the scope of his expertise. LeShore v. Brown, 8 Vet. App. 406 (1995); Layno v. Brown, 6 Vet. App. 465 (1994). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty to show that it is at least as likely as not that a disability was incurred in service. Bloom v. West, 12 Vet. App. 185 (1999). A medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177 (1995). A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458 (1993). The Board assigns no probative weight to the private physician's February 2010 opinion. Dr. Sidari has accepted the Veteran's account of an in-service fracture of the left wrist and another unspecified service related injury to provide an opinion that the Veteran has current tendinitis of the left wrist as a result of a fracture in service and chronic tendinitis of the left elbow and a tear of the extensor tendon related to some unidentified service related injury. In this case, Dr. Sadari's opinion clearly is based upon the Veteran's unsubstantiated account of injuries sustained during service. However, there is absolutely no objective documentation of a left wrist fracture or other injuries of the left arm in service. Dr. Sadari's opinion is based on the Veteran's recollection of events more than 40 years ago, rather than a review of the claims file, is not persuasive. Significantly, moreover, it is one sentence long, it is summary in nature, it does not cite to clinical findings in service, or thereafter, and it does not provide any sort of explanation or rationale, nor does it cite to any studies or medical authority. Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, the findings recited in the letter are contradictory to those found in that same doctor's treatment records. That opinion is therefore afforded no probative value. The only other evidence of record supporting the Veteran's claims for service connection for left arm injury and for residuals of a broken left wrist is his own lay statements. Even if those statements could be read as claiming continuity of symptomatology since service, that history is substantially rebutted by the complete absence of complaints or findings of left arm and left wrist problems until the February 2010 private medical opinion. Furthermore, while VA and private medical records show that the Veteran sought treatment for a variety of ailments, none included left arm or left wrist complaints. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran's first contentions that he had a left arm disability and residuals of a broken left wrist that he related to service were made contemporaneous with his September 2007 claim for VA compensation. Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (a pecuniary interest may affect the credibility of testimony). Therefore, the Board finds that the Veteran's statements made in furtherance of a claim for benefits are less credible and are outweighed by the contemporary medical treatment records that are negative for complaints, findings, or diagnosis of a left arm disability and residuals of a broken left wrist related to service. Additionally, the separation examination did not have any complaints or findings related to the left wrist or arm. Accordingly, the Board considers the Veteran's account of a left arm injury and a broken left wrist in service and related symptoms since service to be inconsistent with other evidence of record, and therefore, not credible. Caluza v. Brown, 7 Vet. App. 498 (1995). In sum, the weight of the credible evidence demonstrates that the Veteran's left arm and left wrist disabilities first manifested many years after his period of active service and are not related to his active service or to any incident therein. Furthermore, the evidence does not show that any left arm or wrist arthritis manifested to a compensable degree within one year following separation from service. As the preponderance of the evidence is against the Veteran's claims for service connection for a left arm injury and for residuals of a broken left wrist, those claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002);Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left arm injury is denied. Entitlement to service connection for residuals of a broken left wrist is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs