Citation Nr: 1331628 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 09-26 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a bilateral hip disability, to include arthritis and/or radiculopathy, claimed as secondary to the lumbar spine disability. 2. Entitlement to service connection for a bilateral hand disability, to include arthritis and/or radiculopathy, claimed as secondary to the lumbar spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to August 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in November 2011. A hearing transcript is associated with the record. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal. This matter of entitlement to a separate disability evaluation for pain and tingling in the lower extremities due to service-connected back disability has been raised by the record, but has not been developed and adjudicated by the Agency of Original Jurisdiction (AOJ). It is noted that General Rating Formula for Diseases and Injuries of the Spine provides that associated objective neurological abnormalities are to be evaluated separately under an appropriate Diagnostic Code. 68 Fed. Reg. 51,443, Note (1) (Aug. 27, 2003). Therefore, this matter is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A hip disability is not shown in service, and arthritis of the right hip is not shown within the initial post separation year; the Veteran has subjective neurological-type symptoms, but no underlying musculoskeletal or neurological disease or injury to account for his complaints; right hip arthritis is neither caused nor aggravated by service-connected disability. 2. A right hand disability is not shown in service, and arthritis of the hands is not shown at any time; the Veteran's neurological symptoms have been variously assessed as ulnar neuropathy and radiculopathy that is neither caused nor aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hip disability, to include right hip arthritis, are not met. 38 U.S.C.A. §§ 1110, 1112 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ .303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for bilateral hand disability are not met. 38 U.S.C.A. §§ 1110, 1112 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ .303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA satisfied its duty to notify. VA sent to the Veteran all required notice in an April 2010 letter, prior to the rating decision on appeal. VA also satisfied its duty to assist the Veteran. VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran. These records have been associated with the claims file. VA further afforded the Veteran appropriate VA medical examinations. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence. The Board previously reviewed the record, determined that the additional development was necessary, and remanded the case. This development included obtaining an outstanding EMG test report, affording the Veteran appropriate VA examinations, and obtaining pertinent medial opinions. The January 2006 EMG test report was obtained and associated with the record. Also, VA examinations were conducted in February 2012 and appropriate medical opinions were included with the exam report. The Board has reviewed the examination reports and finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Lastly, VA afforded the Veteran a hearing on appeal. A hearing transcript is associated with the claims files. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ explored the nature of the issues, whether they involved arthritis and/or nerves, at length with the Veteran's representative and asked questions to clarify the issues for the record. The VLJ inquired about whether the Veteran and his representative had any medical opinions to support his claims. Notably, the claims were subsequently remanded by the VLJ so that outstanding evidence and medical opinions could be obtained. Therefore, the Board finds that the VLJ substantially complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) The Board acknowledges the July 2013 request of the Veteran's representative to remand the matter of service connection for bilateral hand disability as the Veteran did not report for a scheduled MRI examination in connection with that claim. However, the Board finds that, after review of the February 2012 VA examination report, remand for the purpose of obtaining MRI findings is not necessary to decide the claim since it is irrelevant whether the Veteran's hand symptoms are due to ulnar neuropathy or radiculopathy since there is no indication that these disorders are due to service or either caused or aggravated by service-connected disability. Thus, remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). Accordingly, the Board will address the merits of the claim. II. Service Connection The Veteran seeks service connection for bilateral hip and hand disabilities, each claimed as secondary to service-connected lumbar spine disability. He currently has a combined 100 percent VA disability rating. Service connected disabilities include lumbar degenerative disc disease with spinal stenosis at L4-5, currently rated as 40 percent disabling. VA received his claim for benefits in January 2010. At that time, the Veteran reported having arthritis of the hands and hips as a result of arthritis of the back. In his January 2011 notice of disagreement, the Veteran again reported that he had arthritis of the hips and hands. In November 2011, the Veteran testified that he had arthritis of the hands and hips, but indicated that he further sought consideration of his problems on a neurological basis. His representative noted the claimed conditions may be neurological in nature and indicated that the Veteran had had an EMG study of the upper extremities. The Veteran reported that he had radiating pain from the back down the legs with any walking activities, relieved by lying down. He denied tingling, numbness and burning type sensation in the legs. He reported the feeling of pins and needles in his legs. On the hands, he reported numbness and tingling. The Veteran noted that he had fractured his leg in a motorcycle accident in the early 1980s. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Initially, the Board notes the Veteran does not assert that his claimed problems are a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Arthritis shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for disabilities the hips and hands. A hip disability is not shown in service; arthritis of the right hip is not shown within the initial post separation year; and the Veteran has subjective hip symptoms, but no underlying musculoskeletal or neurological disease or injury to account for his complaints. Also, right hip arthritis is neither due to service nor is it caused or aggravated by service-connected disability. Likewise, a hand disability is shown in service; arthritis of the hands is not shown at any time (in service or since service); and the Veteran's hand symptoms have been variously assessed as due to either ulnar neuropathy or radiculopathy, but there is no indication that is either ulnar neuropathy or upper extremity radiculopathy is due to service or caused or aggravated by service-connected disability. Service treatment records are silent for complaints of hip or hand problems, except for hand fracture in April 1967 treated with a short arm cast. On follow-up in May 1967, it was noted that there was no parasthesias or sensory loss, and no weakness. Report of separation examination dated in April 1968 reflects normal evaluation of the upper and lower extremities, musculoskeletal system, and neurologic system. Also, the Veteran denied swollen or painful joints, cramps in legs, arthritis, and neuritis. He reported a history of broken bones to the left hand in 1967 with no sequelae. Post service, the evidence reflects that service connection was established for residuals of left hand fracture. Report of VA examination dated in February 1986 reflects strong grip strength bilaterally. At that time, the Veteran reported a history of a motorcycle accident in July 1984 with fracture of the right lower leg. X-ray showed status post open reduction for a fracture of the proximal femur with screw and pressure plate in situ; and x-ray showed an old, well-healed fracture of the tibia and fibula. Private medical records show a history of low back pain since 1991 and 1992 MRI findings for lumbar disc bulging. A February 1992 report shows a history of a motor vehicle accident a few days earlier with now neck, low back, shoulder, and thumb pain. By history, he had a fractured hip due to a motor cycle accident in 1984, with surgical fixation. Diagnoses included cervical, dorsal, and lumbosacral strain with muscle spasms. In May 1992, the Veteran reported low back pain but no numbness or tingling of the lower extremities. In June 1992, the Veteran complained of back pain radiating to his right hip and lower extremity. VA treatment records dated since 2002 show ongoing low back complaints. Problem lists show chronic L5 radiculopathy. Report of VA examination dated in March 2005 reflects a diagnosis for mild degenerative disc disease and spinal stenosis at L4-5 without radiculopathy. In May 2005, the RO granted service connection for this. A July 2006 VA treatment note reflects complaint of pain in the second digit of the right hand for 1 month. A September 2006 note indicates an assessment for pain in both shoulders and hands, noting that an EMG/NCS suggested right median neuropathy. There was lymphedema of both hands. Pain was controlled with Tylenol, 500 milligrams. Also, low back with no neurological deficit was noted. Report of VA examination dated in March 2007 reflects a history of localized low back pain and radiation down the left foot through the left hip. The Veteran denied loss of sensation in the legs or feet rated to back pain. A VA telephone encounter note dated in July 2009 reflects complaint of numbness of the left arm and part of the left hand. He stated that this was present most of the past week but had resolved a few days ago then numbness appeared. He was referred to urgent care, where the assessment was "Numbness on ulnar aspect of forearm and 4th and 5th finger c/w [consistent with] ulnar neuropathy." He was issued an elbow pad. Exam showed subjective numbness of ulnar aspect of hand. Strength was symmetric and reflexes normal and symmetric. VA treatment record dated in July 2009 reflects that the Veteran presented with complaints of pain in the left hand and left elbow and forearm, along with left hand tingling. Symptoms were localized to the ulnar aspect and began 3-4 weeks earlier although he reported a similar condition a couple years earlier. He denied elbow injury. The assessment included left hand/elbow pain "Possibly due to cervical radiculopathy" and the Veteran was referred to physical therapy. The Veteran further complained of low back pain that radiates along the lateral hip and thigh to the mid-thigh with moving. VA physical therapy note dated in 2009 indicated that the Veteran had been diagnosed with radiculopathy in the left arm and sent to "PT with NT and loss of motor control in left hand." MRI showed bilateral severe foraminal stenosis at C6-7, left greater than right. A physical therapy note indicated left sided cervical radiculopathy. Subsequent notes show treatment for cervical radiculopathy-traction, heat, etc. VA treatment records dated in 2010 show that the Veteran complained of right lower extremity pain involving wound infection. The Veteran was treated for chronic osteomyelitis of the proximal tibia of the right leg with overlying abscess. A VA treatment record dated in April 2010 reflects an assessment for left ulnar neuropathy. Report of VA examination dated in February 2012 reflects complaints of buttock pain that radiates to the hips and down both legs of years duration and worsening. The Veteran denied limitation of hip motion and arthritis of either hip. The examiner noted that hip x-rays in August 1994 showed normal left hip and right hip with hardware for old fracture but no arthritis. The Veteran complained of pain and swelling of the joints of the hands with cold weather that occasionally throbbed. He denied arthritis of the hands or any diagnosis for gout or other nondegenerative arthritis of the hands and hips. X-ray of the hands showed no arthritis, only an old healed 5th metacarpal fracture. X-ray of the hips was normal except for some post surgical osteoarthritis of the right hip. The examiner noted that the right hip arthritis was related to his old surgery, and that there was no evidence otherwise of joint disease of either the hips or hands based on history, physical exam, and x-ray studies. Report of peripheral nerves examination dated in February 2012 reflects diagnoses for cervical radiculopathy with loss of sensation in both hands in a C6-7 andC7-8 distribution due to degenerative disease of the cervical spine; and leg pain due to spinal stenosis at L4-5. The examiner indicated that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. In regards to the lower extremities, she further indicated that: It is not clear that there is any diagnosis that explains his subjective symptoms. But it is possible that his leg pain and tingling is that it is due to his mild spinal stenosis at L4-5. It does not represent any separate process or nerve damage or even radiculopathy, just temporary nerve root tension in certain postures. As to the upper extremities, the examiner reported as follows: . . .although EMG suggested median nerve neuropathy on the right, neither his symptoms nor his physical findings today or in the past are consistent with that. EMG failed to show an ulnar neuropathy so the best explanation seems to be that his symptoms are due to a C8 radiculopathy since there is evidence of significant cervical degenerative disease with foraminal narrowing. The examiner concluded that both the hip and hand conditions claimed were less likely as not caused by or the result of service-connected low back disability in view of the negative evidence of arthritis of the hips and hands, with the exception of the right hip due to prior surgery on the right femur, and the absence of a credible mechanism by which either degenerative or nondegenerative arthritis of either the hands or hips could be linked to the low back disability. The Veteran is competent to report his symptoms, the onset of those symptoms, and treatment. Layno, supra. See also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). In this regard, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). See also, Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), at 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, in this case, the Veteran is not competent to diagnose himself as having arthritis or neurological disorder of the hips or hands that is etiologically related to service or service-connected disability as this is not susceptible to lay observation, unlike a broken leg. Therefore, to the extent that the Veteran believes that his current symptoms of the hips and hands are related to service or service-connected disability, the Board finds that such statements have diminished probative value. The Board assigns greater probative value to the medical evidence of record. The medical evidence of record shows no x-ray findings for arthritis of the hips or hands in service or any time following the Veteran's service separation until VA examination in February 2012-which reflects x-ray findings for right hip osteoarthritis due to surgery post service. In fact, medical evidence shows no musculoskeletal defect of the hips and hands except for right hip osteoarthritis. Also, the medical evidence shows no disability of the hands, musculoskeletal or neurological, except that his left hand symptoms of numbness and pain were attributed to ulnar neuropathy and cervical radiculopathy. The most recent VA medical opinion ruled out ulnar neuropathy and concluded that the Veteran's symptoms were due to cervical degenerative disease-a nonservice-connected disorder. Moreover, none of the claimed problems have been related to service or service-connected disability by the medical evidence of record; and there is no indication that there is disability of either the hips or hands permanently worsened by service-connected disability. The Board finds that medical evidence is more probative because it was prepared with consideration of a medical history. Furthermore, the Board finds that the 2012 VA examination report and opinion are highly probative as it was prepared by a skilled, neutral, medical professional after examining the Veteran and reviewing the claims files. The weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Accordingly, the claim is denied. Lastly, although the VA examiner found no nerve damage or radiculopathy, the Board recognizes that the VA examiner indicated that some tingling and pain in the leg may nevertheless be resulting directly from the service-connected spinal stenosis at L4-5 due to temporary nerve root compression in certain postures. This matter has been referred to the RO for appropriate action in the introduction to this decision. ORDER Service connection for a bilateral hip disability, to include arthritis and/or radiculopathy, claimed as secondary to the lumbar spine disability, is denied. Service connection for a bilateral hand disability, to include arthritis and/or radiculopathy, claimed as secondary to the lumbar spine disability, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs