Citation Nr: 1320437 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 06-22 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for thoracic outlet syndrome, left carpal tunnel syndrome, claimed as a disability of the shoulders and arms. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to April 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, which declined to reopen claims for service connection for (1) thoracic outlet syndrome, carpal tunnel syndrome by history, and (2) a cervical spine disability. The case was subsequently transferred to the jurisdiction of the RO in Denver, Colorado. In an August 2010, the Board reopened these two claims, and remanded them for further development. In a February 2012 rating decision the RO granted service connection for right wrist carpal tunnel syndrome. Therefore, the claim for service connection for right carpal tunnel syndrome, as part of the claim for thoracic outlet syndrome, carpal tunnel syndrome, is no longer on appeal. The Veteran's statements at a February 1997 VA examination for neurological disorders and the medical diagnosis arrived at by examiners upon an April 1992 hospitalization at the Brooke Army Medical Center (BAMC) at Fort Sam Houston, raise an implied claim for service connection for myofascial pain syndrome. This claim has not been addressed by the RO and is not currently developed for appellate review, and is accordingly referred to the RO for appropriate action. FINDINGS OF FACT 1. The competent and probative evidence of record preponderates against the presence of either thoracic outlet syndrome or left carpal tunnel syndrome during the entire appeal period. 2. The competent and probative evidence of record preponderates against a finding that a cervical spine disability was incurred or aggravated in service, or is related to service. 3. Arthritis of the cervical spine was not manifested to a compensable degree within a year of separation from active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for thoracic outlet syndrome, left carpal tunnel syndrome, have not been met. 38 U.S.C.A. §§ 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303 (2012). 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post- adjudication VCAA notice by a number of letters sent between February 2004 and August 2010. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in February 2012. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA and private medical records, and Social Security Administration records. The Veteran was afforded pertinent VA examinations in January and February 1997, June 2004, and December 2011. The Board has reviewed the reports of these examinations. As these examination reports are based on a review of the Veteran's history and the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports in combination are adequate to decide the claims. See 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). While the December 2011 VA examiner noted that the Veteran had not had an EMG/NCS test for four years to address potential conditions including carpal tunnel syndrome, a current EMG/NCS test was ordered by that examiner and many attempts were noted to have been made to schedule the Veteran for a new EMG/NCS test, but the Veteran was unable to attend any of the appointments. A good cause for her failure to attend all these appointments was not provided. The Board notes that the duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, she cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Board accordingly concludes that the duty to assist in affording the Veteran examination and testing to address her claims has been satisfied. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. II. Claims for Service Connection The Veteran claims service connection for (1) thoracic outlet syndrome, left carpal tunnel syndrome, claimed as a disability of the shoulders and arms, and (2) a cervical spine disability. It should be noted that thoracic outlet syndrome can be defined as any of a variety of neurovascular syndromes resulting from compression of the subclavian artery, the brachial plexus nerve trunks, or the axillary vein or subclavian vein, by thoracic outlet abnormalities such as a drooping shoulder girdle, a cervical rib or fibrous band, or an abnormal first rib. Associated arterial compression can lead to conditions such as ischemia, paresthesias, numbness, or weakness of the affected arm; and nerve compression may cause conditions such as atrophy and weakness of the muscles of the hand or forearm, or pain and sensory disturbances in the arm. Dorland's Illustrated Medical Dictionary 1873 (31st ed. 2007). A. Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (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. 38 C.F.R. § 3.303; See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including arthritis or an organic disease of the nervous system, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). B. Factual Background and Analysis The Veteran's DD Form 214, Certificate of Release or Discharge from Active Duty, shows that her primary specialties during service were (1) airfield management specialist, 3 years, 1 month; and (2) construction equipment operator, 2 years. That form reflects that the Veteran was released and separated due to pregnancy from active duty with honorable service in April 1984. There is no indication from the record that her service separation was due to a claimed physical disability. Service treatment records show that the Veteran received treatment in November and December of 1983 for a recent onset of right wrist complaints, assessed at that time as tenosynovitis of the right wrist. Service treatment records show no complaints or treatment for a cervical spine/neck injury or disease in service. Service treatment records also show no complaints or treatment during service for thoracic outlet syndrome or for a condition then identified as associated with thoracic outlet syndrome. There are no conditions shown in service referable to thoracic outlet syndrome, including no neurovascular symptomatology of the arms or hands. See Dorland's Illustrated Medical Dictionary 1873 (31st ed. 2007). The report of a December 1983 separation examination shows that evaluation was normal for the upper extremities, spine, vascular system, and neurologic function. The list of conditions in the notes, and in the summary of defects and diagnoses, does not include any cervical spine condition or any thoracic outlet syndrome or potentially related neurovascular symptomatology of the arms or hands, other than a finding of tenosynovitis of the right wrist. An October 1984 report of medical history shows that the Veteran did not report having had any cervical spine/neck, shoulder, arm or hand complaints. Military medical records from Brooke Army Medical Center (BAMC) at Fort Sam Houston, Texas show that in April 1992 the Veteran was evacuated by air from Panama and admitted to the BAMC with a provisional diagnosis of thoracic outlet syndrome. She reported complaints of bilateral wrist, elbow, shoulder, and neck pain for the previous seven years. She reported that she had been a heavy equipment operator in the military from 1979 to 1984, and that she had to stop due to back problems. During two weeks of hospital treatment in 1992 the Veteran underwent evaluation by multiple consultants. After evaluation and treatment the providers arrived at a diagnosis of myofascial pain syndrome. The report of a January 1997 VA examination for joints shows that the Veteran reported complaints of pain in her neck, both upper extremities, and low back. She reported she had been a heavy equipment operator and had back symptoms since then. The examiner noted that the Veteran's symptoms referable to the hands and wrists had been labeled carpal tunnel syndrome and on other occasions had been labeled thoracic outlet syndrome. The Veteran reported she had had four car accidents when she suffered whiplash injuries. She reported complaints of sore neck muscles and shoulders. An associated January 1997 VA X-ray report contains a conclusion of mild degenerative disease in the cervical spine at C4-5, C5-6, and C6-7. During a February 1997 VA examination for neurological disorders the Veteran reported that during service from 1979 to 1981 she worked as a heavy machinery operator and did a lot of heavy lifting. She reported symptoms of the low back, and of severe upper extremity pain, weakness, and swelling; and that between 1990 and 1993 she was admitted to Fort Sam Houston, where she was diagnosed with thoracic outlet syndrome. She reported that she continued to have swelling of muscles of the upper extremities and severe pain, which she attributed to the heavy lifting performed during service. The Veteran also reported having been in four civilian car accidents in which she suffered whiplash injuries every time, but she reported that she did not remember when these accidents occurred. After examination the report contains an impression of thoracic outlet syndrome secondary to heavy lifting and hyperextension of the upper extremities secondary to being a heavy machine operator. The report of a June 2004 VA examination for joints shows that the Veteran reported complaints of pain in both wrists. She reported she did not remember any specific history of injury to the wrists but that during service she was a heavy equipment operator. The report includes a diagnosis that the wrist examinations were normal; and that the Veteran had a history of motor vehicle accident in which she sustained a cervical spine injury, which is at least as likely as not the etiology of her upper extremity complaints. The report of a December 2011 VA examination of the cervical spine shows that the Veteran reported she had been in Panama with her husband who was on active duty service, and as a result she had been receiving treatment from the military medical staff. While in Panama an occupational therapist told her she had thoracic outlet syndrome but she was never diagnosed with this by a physician. She was sent to Texas for treatment. She reported also that she was involved in a motor vehicle accident in 1996 when she was rear ended and received a neck injury. During the December 2011 VA examination the Veteran reported complaints of pain, numbness and weakness in both upper extremities, but the right side symptoms were worse, and symptoms were worse with activity. The report noted that imaging studies of the cervical spine showed no arthritis (degenerative joint disease). The examiner noted that a review of the Veteran's records shows that a diagnosis of thoracic outlet syndrome had never been made; that a variety of tests had been conducted and none had shown any findings consistent with thoracic outlet syndrome. Based on this, and on examination of the Veteran and review of the record, the examiner concluded that the Veteran did not have thoracic outlet syndrome. The examiner also noted that in 1996 the Veteran had a neck injury from motor vehicle accident when her car was struck from the behind, and in 1997 she had a cervical spine X-ray examination showing some degenerative changes. She had EMG/NCS in 2007 that showed no signs of cervical radiculopathy, but it did show mild carpal tunnel syndrome at the right wrist. Based on examination and records review, the examiner diagnosed degenerative disc disease and degenerative joint disease of the cervical spine with spinal stenosis at the C3-4, C5-6, and C6-7 levels without documented radiculopathy. The examiner stated that the Veteran also is diagnosed with mild right sided carpal tunnel syndrome, including based on prior tests and studies. The examiner explicitly stated that she is not diagnosed with thoracic outlet syndrome. The examiner also did not find current left carpal tunnel syndrome. The examiner concluded with an opinion that it is not at least as likely as not that the current cervical spine condition is due to military service. As rationale the examiner noted that review of the service treatment records showed multiple visits for complaints of low back pain, but no complaints of neck pain; and noted that the cervical spine condition was first identified in 1997, more than 10 years after leaving service. The examiner provided no etiology opinions for the Veteran's claimed thoracic outlet syndrome and left carpal tunnel syndrome due to the absence of findings or diagnoses supportive of current thoracic outlet syndrome or left carpal tunnel syndrome. 1. Analysis: Thoracic Outlet Syndrome, Left Carpal Tunnel Syndrome Based on review of the evidence on file, at no time during the pendency of the claim has thoracic outlet syndrome, or carpal tunnel syndrome, been diagnosed, other than with respect to the already service-connected right wrist carpal tunnel syndrome. Although the February 1997 VA examination report contains an impression of thoracic outlet syndrome secondary to heavy lifting and hyperextension of the upper extremities, this does not support persistence of thoracic outlet syndrome up to the period of claim or the presence of thoracic outlet syndrome during the claim period. As noted, the December 2011 VA examiner found on thoracic outlet syndrome. Further, none of the other VA examinations have diagnosed thoracic outlet syndrome, or left carpal tunnel syndrome. Moreover, the most recent VA examination in December 2011 specifically addressed whether the Veteran had a present thoracic outlet syndrome. That examiner specifically found that there was no diagnosis of thoracic outlet syndrome. Regarding carpal tunnel syndrome, the examiner diagnosed mild right sided carpal tunnel syndrome only. There is no diagnosis of a left sided carpal tunnel syndrome. The Veteran is competent to describe a condition that is capable of lay observation, such as upper extremity pain or other symptoms the Veteran may observe or perceive through her senses. However, the Veteran is not competent to diagnose medical conditions such as thoracic outlet syndrome or carpal tunnel syndrome because they are not subject to lay observation. Davidson; Jandreau. In contrast, the VA examiners, including December 2011 VA examiner addressing the medical issues underlying the claims, is competent to address the medical questions of presence or absence of these disorders. As there is no finding or diagnosis of thoracic outlet syndrome or left carpal tunnel syndrome during the claim period, despite VA examination in December expressly to address any such current disabilities found, the evidence preponderates against the existence of any current thoracic outlet syndrome or left carpal tunnel syndrome at any time during the claim period. Hence, the evidence preponderates against the claim for service connection for thoracic outlet syndrome or left carpal tunnel syndrome on the basis of no current disability. 38 C.F.R. § 3.303. As the preponderance of the evidence is against the claim , the benefit-of-the-doubt standard of proof does not apply, and service connection is not warranted for thoracic outlet syndrome, left carpal tunnel syndrome. 38 U.S.C.A. § 5107(b). 2. Analysis: Cervical Spine Disability The evidence on file shows no evidence of any cervical spine condition in service, including at the December 1983 separation examination. The Veteran also did not report any cervical spine condition in an October 1984 report of medical history. The first evidence of any complaints of neck pain or other pertinent symptoms is contained in post service military hospital treatment records in 1992, though with an ultimate diagnosis at that time of myofascial pain syndrome. The first objective findings of record of a cervical spine condition are in 1997, when VA medical records included findings of mild degenerative disease in the cervical spine. The extended period following service without treatment for cervical spine complaints weighs against the claim. See Maxson, supra. There is no evidence of any arthritis within one year of the Veteran's discharge from service in April 1984, and hence service connection may not be supported for cervical spine arthritis on a first-year-post-service presumptive basis. 38 C.F.R. §§ 3.307(a), 3.309(a) (2012). There is also no evidence linking any diagnosed cervical spine disorder to any incident of service, or to any service-connected disability. 38 C.F.R. § 3.303, 3.310 (2012). The June 2004 VA examination report shows that the examiner linked the Veteran's upper extremity complaints to a cervical spine injury that resulted from a motor vehicle accident post service. The December 2011 VA examination report concluded with an opinion that the Veteran's cervical spine condition was not at least as likely as not due to military service. There are no contrary medical opinions or other competent evidence to link the Veteran's cervical spine disability to service or to a service-connected disability. Given the foregoing, to the extent the Veteran asserts a continuity of symptomatology of relevant cervical spine symptoms since service, the preponderance of the evidence is against such assertions supporting development of cervical spine disability in service. Despite treatment records over the years following service, cervical spine disability was not found until many years post service. The Board finds this chronology of clinical records in service and post service to be more likely reflective of the actual chronology of onset of cervical spine disability, and hence outweighing any such lay assertions by the Veteran. Notably, with respect to the continuity of right wrist symptoms reported since service, service connection has been granted for right wrist carpal tunnel syndrome, as this has been medically found to be more likely than not related to service. The preponderance of the evidence is against the claim for service connection for a cervical spine disability, and hence the doctrine of reasonable doubt is not applicable. 38 C.F.R. § 3.303; 38 U.S.C.A. § 5107(b). ORDER Service connection for thoracic outlet syndrome, left carpal tunnel syndrome, is denied. Service connection for a cervical spine disability is denied. ____________________________________________ DAN SCHECHTER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs