Citation Nr: 1331237 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-31 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an upper extremity neurological disorder, to include peripheral neuropathy, left cervical radiculopathy, and left ulnar neuropathy. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2011, the Board remanded the claim for additional development. The Board notes that additional VA outpatient treatment reports were included in the Veteran's Virtual VA file but were not considered in the most recent supplement statement of the case. However, the records are not related to treatment for the Veteran's claimed upper extremity disorder and therefore are not relevant to the issue on appeal. FINDING OF FACT The Veteran does not have an upper extremity neurological disorder, to include peripheral neuropathy, left cervical radiculopathy, and left ulnar neuropathy, that is attributable to active duty service or was caused or made worse by a service-connected disability. CONCLUSION OF LAW The Veteran does not have an upper extremity neurological disorder, to include peripheral neuropathy, left cervical radiculopathy, and left ulnar neuropathy, that is the result of disease or injury incurred in or aggravated during active service and an upper extremity neurological disorder is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claims, 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 September 2005 and June 2011. 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 upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the August 2011 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. VA has obtained an examination with respect to the claim. 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 by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). The chronicity provisions are applicable where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2013). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, service connection is warranted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). That includes any increase in disability that is proximately due to or the result of a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran claims that he has an upper extremity neurological disorder as a result of service or as secondary to a service-connected disability including diabetes mellitus, peripheral neuropathy of the lower extremities, residuals of a laceration of the left thumb, and residuals of a diabetic ulcer of the right great toe. The Veteran's service medical records do not show any complaints, findings, or treatment for any upper extremity disability. The Veteran's October 1968 separation examination reveals a normal clinical evaluation of the upper extremities. In an April 2002 statement, T. Hicks, M.D., indicated that he had treated the Veteran since 1996. Dr. Hicks reported that laboratory results revealed a diagnosis of diabetes in November 2001 and in December 2001 the Veteran reported tingling in the hands and feet which was reportedly due to diabetic neuropathy. VA outpatient treatment reports dated from April 2002 to January 2012 show that the Veteran underwent an electromyograph (EMG) in September 2008 which found left C6 and possible C7 radiculopathy; rule/out cervical myelopathy/stenosis and left ulnar neuropathy without evidence of compression at the elbow or Guyson's Canal. In August 2009, the Veteran was noted to have left arm weakness; C6-7 radiculopathy and ulnar neuropathy. A September 2009 magnetic resonance imaging (MRI) revealed multilevel degenerative changes with mild spinal canal narrowing at C4-5 and C5-6 and multilevel neuroforaminal narrowing most significant at C4-5 and C5-6 and chronic mild vertebral body compression of C5. In January 2010, the Veteran reported left hand numbness and tingling. Motor examination was 5/5 except for the left biceps and triceps which was 4/5. Imaging was noted to reveal cervical spondylosis evident on cervical spine per magnetic resonance imaging (MRI). The Veteran was hospitalized for an unrelated illness in February 2011 at which time peripheral pulses in the upper extremities were strong. At a November 2005 VA examination, the Veteran reported peripheral neuropathy of the hands and feet secondary to diabetes mellitus. His symptoms included some numbing, tingling, and pins and needles in the fingertips especially in the left thumb where he suffered an injury in service. Sensory examination revealed that sensation to light touch, pinprick, and monofilament was maintained in all the fingertips except the left thumb where he did not feel the monofilament very much which was secondary to an old injury. The examiner indicated that sensation to light touch and monofilament was markedly diminished in both lower extremities down the stocking distribution of stocking on both feet and sole. He noted that clinically the Veteran had moderate neuropathy of both lower extremities. The Veteran was noted to have numbness of the thumb due to an injury in service but no scar or deformity. Consequently, no upper extremity neuropathy was diagnosed at that time. At a July 2011 VA examination, the examiner reviewed the Veteran's claims file, obtained the Veteran's medical history, and recited the relevant medical history. The Veteran reported weakness of the left arm and shoulder greater than the right side. He also reported wasting of the biceps and a pricking sensation of the fingers and shoulder of the left side. Following a physical examination including a detailed reflex examination, sensory examination, detailed motor examination, and review of relevant diagnostic testing, the examiner indicated that there was no objective evidence of peripheral neuropathy in the bilateral upper extremities. The examiner diagnosed peripheral neuropathy of the lower extremities associated with diabetes mellitus, degenerative joint disease of the cervical spine per September 2009 MRI, and left C6 radiculopathy per examination and September 2008 EMG. The examiner opined that degenerative joint disease of the cervical spine and left C6 radiculopathy were not caused by or as a result of or aggravated by the Veteran's in-service laceration to his left thumb. The examiner also opined that degenerative joint disease of the cervical spine and left C6 radiculopathy were not caused or permanently aggravated by the Veteran's service-connected diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, or residuals of a diabetic ulcer of the right great toe. The examiner concluded that degenerative joint disease of the cervical spine and left C6 radiculopathy was not related to any other aspect of the Veteran's active service. The examiner's rationale was that based on a review of medical literature, medical records, and history and examination of the Veteran, the Veteran's symptomatology and examination revealed cervical spondylosis or degenerative joint disease of the cervical spine confirmed by MRI with C6 radiculopathy confirmed by EMG. The examiner noted that weakness of the left forearm pronation was consistent with C6 radiculopathy and no abnormalities were noted in the right upper extremity. The cervical spine conditions were noted to be entirely different from and unrelated to diabetic peripheral neuropathy. Specifically the examiner indicated that pathophysiological involvement was proximal nerve root involvement because of vertebral/bone disease versus distal nerve involvement in diabetes neuropathy. The examiner noted that cervical spine degenerative joint disease can give rise to intermittent subjective paresthesias distally in the fingers without any objective distal sensory loss in contrast to diabetic peripheral neuropathy. The examiner noted that the September 2008 EMG raised the possibility of motor neuron disease (also called ALS or Lou Gehrig disease) and distal axonal neuropathy. The examiner noted that motor neuron disease was obviously not present because the average life span after diagnosis is three years and the Veteran is alive and fully functional. The examiner indicated that distal axonal neuropathy refers to neuropathy that involves the axons of the nerves which is the type of neuropathy associated with diabetes. The examiner noted that the Veteran gave a history of left elbow fracture at age ten and it was well known that scar tissue from previous fractures can cause ulnar nerve involvement many years later, a condition termed tardy ulnar palsy. The examiner indicated that there was no weakness, sensory loss, or motor loss from the ulnar nerve involvement in the left upper extremity despite the EMG finding. The examiner noted that the only significant findings were pronator weakness in the left forearm with smaller diameter compared to the right forearm consistent with C6 root involvement. The examiner noted that while the November 2005 VA examiner related subjective complaints of finger paresthesia there was no evidence of bilateral upper extremity diabetic peripheral neuropathy. The examiner also noted that the November 2005 VA examiner mentioned that scar tissue from the thumb laceration in service as a reason for decrease in sensory perception of the thumb. However, the examiner indicated that there were no visible or palpable abnormalities of the thumb and no functional impairment from such a small scar. The examiner noted that the thumb was in the dermatomal distribution of the C6 root and paresthesia from a C6 radiculopathy can give rise to symptoms on the thumb. The examiner explained that peripheral neuropathy from diabetes mellitus affects distal to proximal nerves starting in the toes, feet, and legs then in the tips of fingers of both hands and then into the forearms in a stocking-glove distribution and the Veteran did not have that pattern in his left upper extremity complaints. The examiner indicated that the Veteran had signs and symptoms of a left C6 radiculopathy which was a proximal nerve root from the neck going distally to the hand which was the opposite direction and from totally different mechanisms and pathophysiology. The examiner indicated that radiculopathy was not aggravated by diabetes mellitus and had nothing to do with abnormal blood sugar metabolism on peripheral nerves and was caused by local spine and vertebral skeletal abnormalities. The examiner noted that for the same reasons explained, the Veteran's left upper extremity radiculopathy was not caused or aggravated by lower extremity diabetic peripheral neuropathy because they were different entities, caused by different problems, and had no connection to each other. The examiner stated that there was no evidence of a great toe ulcer on examination and the Veteran reported that the ulcer healed completely several years prior. The examiner indicated that there was no possible way for foot ulcers to give rise to, aggravate, cause, or are in any way be related to cervical spondylosis/radiculopathy as the structures involved are geographically, physiologically, and anatomically separate. Finally, she stated that there was nothing in the service medical records to connect the cervical spine degenerative disc disease (primarily an age related condition) and C6 radiculopathy to service. The examiner noted that the Veteran reported that his clamed condition started two to three years prior and his spine, upper extremities, and neurologic systems were normal at his separation from service. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for an upper extremity neurological disorder, to include peripheral neuropathy, left cervical radiculopathy, and left ulnar neuropathy. The Board finds that the preponderance of the competent evidence is against a finding of a relationship of the Veteran's claimed upper extremity neurological disorder and his period of active service. The Board notes that the November 2005 VA examiner did not diagnose any upper extremity neurological disorder and noted decreased sensation in the left thumb for which no diagnosis was rendered. Moreover, while Dr. Hicks indicated in an April 2002 statement that the Veteran had tingling in his hands as a result of diabetic neuropathy in December 2001, no record of any diagnostic testing was included with that statement. By contrast, the most recent VA examiner referenced diagnostic testing and determined that it was less likely than not that an upper extremity neurological disorder was related to service or was caused or aggravated by a service-connected disability. The examiner included a detailed and comprehensive rationale for the opinion. The Veteran has not submitted any competent evidence which provides a basis for the conclusion that the Veteran's claimed upper extremity neurological disorder is related to his period of service or was caused or aggravated by a service-connected disability. Although the Veteran contends that he has an upper extremity neurological disorder related to his active service or to a service-connected disability, he has submitted no competent medical evidence or opinion to corroborate that contention. 38 C.F.R. § 3.159(a)(1) (2013) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran's opinion is not competent to provide the requisite etiology of the claimed upper extremity neurological disorder because those matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (2013); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995). Therefore, his statements regarding his upper extremity neurological disorder being related to service or to a service-connected disability are not competent as he is not medically qualified to provide evidence regarding a matter requiring medical expertise, such as an opinion as to etiology. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for an upper extremity neurological disorder, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for an upper extremity neurological disorder, to include peripheral neuropathy, left cervical radiculopathy, and left ulnar neuropathy, is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs