Citation Nr: 1328431 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-06 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a left hand (left upper extremity ) disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1992 to February 1994. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Boise, Idaho. The Denver RO has current jurisdiction. The Board has considered documentation included in the Virtual VA system in reaching the determination below. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last supplemental statement of the case. In October 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In March 2013, the Board remanded the matter for additional development. That development having been completed, the claim has been returned to the Board and is now ready for appellate disposition. FINDING OF FACT A left hand disorder (left upper extremity) did not manifest in service and is unrelated to service, and a neurologic disorder was not manifest within one year of separation. CONCLUSION OF LAW A left hand disorder (left upper extremity) was not incurred in or aggravated by service, and an organic disease of the neurologic system may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Under applicable law, 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. 2012); 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). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in August 2008 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. That letter additionally provided him with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. 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 treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records and post service treatment records have been obtained. He has been afforded a VA examination for the claim on appeal. The Veteran was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned Veterans Law Judge (VLJ) who conducted the hearing clarified the issue on appeal, explained the concept of service connection, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim. The VLJ left the record open for a 60-day period following the hearing to allow for the submission of such additional evidence. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. For all of these reasons, the Board does not have notice of any additional relevant evidence which is available but has not been obtained. The Board is further satisfied that the RO has substantially complied with its March 2013 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ afforded the Veteran a VA examination for the claim on appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Service connection for certain diseases, such as organic diseases of the nervous system, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a disorder when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") The Veteran in this case has been diagnosed with severe left radial motor neuropathy, documented, for example, on VA examination in March 2013. Thus, the question is whether his current disability is related to active service or events therein. See 38 C.F.R. § 3.303. As for the in-service incurrence of the condition, initially, the Board notes that the Veteran does not claim that his left hand disorder is due to combat. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Rather, the Veteran contends that he injured his left arm during service when, in 1993, he fell down a metal ladder and hit his arm. The Veteran's service treatment records are devoid of any complaints, diagnoses, or treatment for any problem with the Veteran's left arm. A fall from 1993 or any other time is not documented in the records. On his separation examination in May 1992, the Veteran's upper extremities and neurologic system were normal. On the accompanying Report of Medical History, the Veteran did not indicate a history of any problem with this left hand. He denied having swollen or painful joints, neuritis, and paralysis. In a December 1998 post-service private treatment record, the Veteran reported difficulty extending his left wrist and fingers, and complained of twitching in the hand. He reported to the provider that his difficulties dated back to June 1996. In January 1999, the Veteran was seen for left upper extremity weakness and paresthesias with a history of perhaps a few years. The examiner noted there was no known history of head, neck, or arm trauma. He reported problems with his stomach stemming from the military, but made no mention of a fall or injury to the left arm. He reported being employed as a checker at Safeway. He was diagnosed with progressive weakness and paresthesias of the left upper extremity. In April 1999, the Veteran was seen by a neurologist for upper extremity weakness and paresthesias. On examination, the physician noted an extra crease on the medial palm at the base of the hypothenar eminence of the left hand, which was not in place on the right. The Veteran reported being told by his mother that he had some sort of asymmetric posturing of the left fifth digit at birth due to a lack of cartilage in the region. On examination, the physician noted that his symptoms may be due to some congenital anomaly. In June 1999, the Veteran sought treatment for weakness and reduced dexterity of the hand. The physician noted that he had had detailed discussions with the Veteran's neurologist about the Veteran's symptoms, but that there was no neurological explanation for them. In February 2007, the Veteran sought treatment for his left hand weakness. He noted to have isolated left radial motor neuropathy. The examiner noted that the Veteran had sustained work-related repetitive supination/pronation for a number a years, which may have predisposed him to the current problems. The provider noted that radial neuropathy can also be caused by abnormal blood lead levels or by an injury to the elbow. In October 2008, the Veteran recounted his fall in service to a VA provider. He reported having pain after the fall, which resolved. He stated that his present symptoms did not begin until 1996. Also in October 2008, a lay statement from L.B. was received. L.B. asserted that prior to military service, the Veteran did not have problems with his left hand. His problems were noticed after his return. In June 2009, additional lay statements were submitted by the Veteran's sister, mother, J.R., and J.K. These statements were also to the effect that the Veteran did not display problems with his left hand until after his service in the Navy. In October 2012, the Veteran testified that while in service, he missed a step on a ladder, and fell two stories, injuring his left elbow and hand. Hearing Transcript, pp. 7-8. He stated he was given Ibuprofen but that the injury was not recorded. Id. In May 2013, a VA examination was conducted. The examiner reviewed the claims file and examined the Veteran. The Veteran reported that in 1993, he fell down a metal ladder about 20 feet. He landed on his buttocks and hit his forearm, just below the elbow. He recalled excruciating pain and difficulty bending his elbow. He sought medical attention from the doctor in the ship, was told to take Motrin and ordered back to work. He reported that he had pain mostly in his hand and while bending his elbow with activities and while picking up heavy objects. He stated that the pain subsided but did not resolve completely. The examiner undertook an extensive review of the medical record and provided a recitation of the evidence. She performed a neurological examination. She diagnosed the Veteran with severe left radial motor neuropathy. She concluded that this condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury event, or illness. As rationale, she stated that a review of the claims file showed the Veteran was evaluated in 1999 when he reported progressive weakness, especially with picking things up, grabbing, buttoning his shirts and even rolling up an electric car window. The Veteran denied any history of head, neck or arm trauma. He was diagnosed with partial left radial neuropathy at the time. Based on clinical findings and nerve conduction/EMG study results, the Veteran has been found to suffer from isolated left radial motor neuropathy consistent with radial posterior interosseous syndrome, a nerve disorder in the elbow and upper arm that causes pain and hand and wrist weakness. She noted that this condition involves compression of the radial nerve, particularly the posterior interosseous branch at the elbow or forearm by muscles or ligament-like tissues. That nerve has no sensory component, thus, there is no numbness associated with it. The examiner noted there is no documentation of a fall resulting left elbow/forearm injury while in service. She found that for an injury resulting in a nerve damage of this severity, it would be expected for the Veteran to have acute as well as ongoing symptoms since the day of injury. The Veteran had no complaints of left arm/hand symptoms at the time of discharge. The examiner further noted that when the Veteran was examination in 1999 by a neurologist, it was noted that the most likely etiology of the Veteran's left radial nerve condition was repetitive forearm movement which was consistent with his job duties at Safeway where he worked as a checker. The examiner concluded that although the Veteran reported trauma and pain while in the service, the current left hand condition secondary to nerve damage had an onset significantly later which would not be consistent with the natural history of this disorder. On review of this report, the Board finds the May 2013 VA examination opinion is fully adequate for the purposes of adjudication and entitled to substantial probative weight. See Stefl, 21 Vet. App. at 123. The examiner founded her opinion on an extensive examination of the claims file and of the Veteran, with reference to past and current diagnostic reports. She accepted and discussed the Veteran's contentions of in-service symptoms in rendering her opinion, and explained the reasons for her conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The only other evidence of record supporting the Veteran's claim are his lay assertions, and those of his family and friends. Lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran is competent to describe his symptoms in and since service, and to report any diagnosis told to him at the time. His family and friends are competent to describe what they perceived prior to and after service. However, all findings were normal at separation and the Veteran indicated on the contemporaneous report of medical history that he did not have and had never had problems with his left hand or left arm. He specifically denied neuritis and paralysis. Moreover, the conflict between the Veteran's current statements and his prior denials of left hand injuries, including in 1999, as well as his various assertions to medical providers that his condition did not arise until after service in 1996, establishes that the Veteran is an inconsistent historian. The Board finds the contemporaneous statements including those made to health care providers to be more credible than those made during the course of an appeal for compensation. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony); Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ('[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.')). The Board finds that the lay statements of in-service left radial motor neuropathy are not credible, and that the weight of the evidence indicates a lack of in-service left hand pathology during service or within one year of separation. As to whether the Veteran and his family and friends are competent to opine that his left radial motor neuropathy is related to service, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Here, the May 2013 VA examiner, after examining the Veteran and reviewing the claims file, opined that it was not likely ("it is less likely than not") that the Veteran's left radial motor neuropathy was related to service. She found that the Veteran's records do not suggest any in-service injury to the severity required to produce the current symptoms. She noted that the record reflected other etiologies for the current condition, including the repetitive forearm movement required of the Veteran as a checker at Safeway. She determined that the Veteran's left hand condition had an onset after service. She determined that a delayed onset of nerve symptoms following an arm injury would be inconsistent with the natural progression of the disorder. Again, as the VA examiner explained the reasons for her conclusions based on an accurate characterization of the evidence including the Veteran's statements, her opinion is entitled to substantial probative weight and the examination was therefore adequate. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. In weighing the May 2013 VA examiner's opinion against that of the Veteran and his family and friends, the Board finds that the probative value of the specific and reasoned statement of the trained medical professional outweighs that of the general lay assertions, even assuming the Veteran's competence to opine on the medical question of the etiology of his left hand disorder. For these reasons, the Board finds the preponderance of the evidence is against the claim for service connection. The Board further notes that, chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, there is no credible proof of neurologic dysfunction until more than one year after service. To the extent the Veteran argues a continuity of symptomatology between the present condition and in-service injury or disease, the United States Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). (holding, "nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). Here, there is evidence of an organic disease of the nervous system. However, a neuropathy was not noted during service. Furthermore, characteristic manifestations of the disease process were not identified during service. Accordingly, § 3.303(b) is not applicable. The Board has also considered the fact that the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. However, the Veteran's left hand disorder has been linked to a known cause rather than any undiagnosed illness. He has not otherwise contended that his Gulf service caused his left hand disorder, and the claims file is devoid of any evidence to support this, including the detailed opinion of the May 2013 VA examiner who extensively reviewed the claims file and opined that the left hand disorder is not related to an event of active military service. In short, there is competent evidence that the Veteran has a left hand disorder; however, the more probative and credible evidence establishes that there is no relationship to service. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left hand (left upper extremity) disorder is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs