Citation Nr: 1333546 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-30 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for neuropathy of the left upper extremity, to include as secondary to service-connected left wrist arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1975 to August 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was previously before the Board in February 2011 and remanded for additional development. There has been substantial compliance with the mandates of the remand and the Board will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's neuropathy of the left upper extremity is not etiologically related to active duty service or a service-connected disease or injury. CONCLUSION OF LAW The criteria for service connection for neuropathy of the left upper extremity have not been met. 38 U.S.C.A. § 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was furnished to the Veteran in a July 2006 letter, prior to initial adjudication of this matter. 38 C.F.R. § 3.310 (pertaining to secondary service connection) was amended on September 7, 2006. The Veteran was notified of the amendments to 38 C.F.R. § 3.310 in the July 2007 statement of the case. The claim was subsequently readjudicated, most recently in a February 2012 supplemental statement of the case. Accordingly, the duty to notify has been fulfilled. The duty to assist has also been met and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file includes service treatment records (STRs), VA medical records and the statements of the Veteran in support of his claim. Significantly, neither the Veteran nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board has also reviewed records on Virtual VA and the Veterans Benefits Management System (VBMS). The Veteran was afforded a VA examination in March 2008 and the claim was remanded in February 2011 in order to obtain an adequate VA examination and/or opinion. The Board finds that the VA examination and opinions provided in February and March 2011 are adequate. The examiner considered the Veteran's history and the current examination results, and provided rationales for the opinions offered. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Hence, no further notice or assistance to the appellant is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110 , 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310. In addition, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Id. During the course of this appeal, VA amended 38 C.F.R. § 3.310 (effective October 10, 2006), to implement the decision in Allen v. Principi, 7 Vet. App. 439 (1995), which addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310 (b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). III. Analysis The Veteran contends that he has neuropathy of the left upper extremity due to his service-connected left wrist arthritis. Turning first to whether service connection is warranted on a direct basis, the record shows that the Veteran fractured his left wrist in May 1977. Service records are negative for evidence of complaints or treatment for neuropathy of the left upper extremity. Notations made at the time of the wrist injury indicate that he had swelling and tenderness. The X-ray report at the time indicates that the Veteran had a "comminuted, minimally-displaced avulsion of the ulnar styloid process." The report also indicates that the distal radius was intact, without evidence of fracture. However, there was an abnormal angulation between the radial articular surface and the shaft of the radius. The Veteran was provided a separation examination in June 1979. At that examination, a clinical evaluation of the upper extremities and neurological system resulted in normal findings. In reporting any significant or interval history, the examiner noted fracture of the wrist bones, "N[o]C[omplications]N[o]S[equelae]." VA outpatient treatment records dated in June 2006 note a reported one year history of numbness in the left arm. The VA examination in March 2008 yielded a diagnosis of mild sensorimotor axonal peripheral neuropathy involving the left upper extremity. A current disability is demonstrated, but there is no evidence of a link between the Veteran's current disability and service. No chronic neurological conditions were noted in the service treatment records or during the June 1979 separation examination. In fact, the Veteran's upper extremities and neurological system were normal upon clinical examination at discharge. Further, there are no medical records in the claims file, and no assertion from the Veteran that any records exist, that document any complaints or treatment for neuropathy in the upper left extremity until over 25 years after his military service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Given the weight of the competent evidence of record, the Board finds that there is no nexus between the Veteran's left upper extremity neuropathy and active duty service. Service connection on a direct basis is not warranted. The Board must now determine whether service connection is warranted for left upper extremity neuropathy on a secondary basis. In an April 2008 rating decision, service connection was granted and a 10 percent rating assigned for left wrist arthritis, as a result of the in-service fracture. The Veteran contends that his service-connected left wrist arthritis caused or aggravated his current neuropathy. A VA examination was conducted in March 2008. The Veteran reported that he began experiencing numbness in the left 2nd and 3rd fingers in 2006. At the examination, the Veteran denied radiation of the numbness to his forearm. He also denied that pain and numbness came down from the neck area to his fingers. Upon physical examination, the left upper extremity muscles showed normal muscle tone, power, and no muscle atrophy. However, the left biceps and brachioradialis reflex were decreased, and the left tricep reflex was absent. The examiner noted no weakness of the elbow or wrist extension and no weakness in the forearm pronation. Also, there was no weakness of the elbow flexion or shoulder rotation. The Tinel's test was negative on the left wrist area. The examiner also reported the results of a June 2007 EMG (electromyography) test. The left upper extremity showed evidence of mild sensorimotor axonal peripheral neuropathy, but no evidence of carpal tunnel syndrome. The examiner stated he could not provide an opinion without resorting to speculation. The Board found the examination inadequate and remanded the claim for a new medical examination and/or opinion in February 2011. See Jones v. Shinseki, 23 Vet. App. 382 (2010). An examination and an EMG were conducted in February and March 2011 during which the examiner reviewed the claims file, including the medical records, and performed a physical examination. The Veteran reported his 1977 injury and the tingling he began experiencing in his fingers in 2006. He also asserted that the condition had grown progressively worse since that time. The Veteran claimed that he has difficulty gripping and holding objects with his left hand. The motor examination resulted in active movement against full resistance for the elbow, wrist, thumb, and fingers. The examiner noted no muscle atrophy, abnormal gait, imbalance or tremor, or evidence of fasciculation. The examiner found that the previous EMG performed was inconsistent with the examination findings. Therefore, a new EMG was ordered. The findings reported were: (1) "mild slowing of the left median nerve across the wrist with 4 of 6 measures for carpal tunnel syndrome being slightly positive;" and (2) "no electrodiagnostic evidence of peripheral neuropathy affecting the left median or ulnar nerve other than that described [in (1)]." The examiner opined that the Veteran's left upper extremity neuropathy is less likely as not (less than 50/50 probability) caused by or a result of the service connected left wrist disability. The reason provided indicates that the Veteran's upper extremity neuropathy appears to be mild carpal tunnel syndrome as demonstrated with mild slowing of the left median nerve. However, the examiner noted that the Veteran's symptoms are not consistent with carpal tunnel syndrome as the Veteran reports tingling in his 2nd, 3rd, and 4th fingers. The examiner noted that the Veteran's in-service injury was "comminuted, minimally displaced avulsion of the ulnar styloid process." According to the examiner's conclusion, the original injury was to the ulnar nerve. However, the EMG did not show any ulnar nerve neuropathy. The examiner also opined that the Veteran's left upper extremity neuropathy was not aggravated by Veteran's left wrist arthritis. The rationale given was that the Veteran's symptoms are tingling on his left 2nd, 3rd, and 4th fingers. However, the Veteran's in-service injury is not related to the problem the EMG shows, as discussed in the previous paragraph. Instead, the examiner opined that the Veteran has mild median nerve slowing, which suggests mild carpal tunnel syndrome which is not the area that was injured in service. The Board also reviewed the Veteran's lay assertions. Although a lay person may be competent to report the etiology of a disability, neuropathy is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Even if the Veteran were competent to provide an opinion as to the etiology of a disorder which is typically confirmed by EMGs, the Board finds that the probative value of any such opinion is outweighed by that of the March 2011 VA examiner's opinions. The VA examiner has education, training and experience in evaluating the etiology of upper left extremity neuropathy. The Board also reviewed the arguments presented in support of the claim submitted by the Veteran's representative. However, the arguments do not offer any additional evidence beyond reiterating the Veteran's assertions and reciting the governing statutes and case law. In regard to the Veteran's contention that his left upper extremity neuropathy is the result of a service-connected disability, including his left wrist disability, the Board finds that the preponderance of the evidence is against the claim on the basis of causation or aggravation. Service connection on a secondary basis is not warranted, under either version of 38 C.F.R. § 3.310. ORDER Entitlement to service connection for neuropathy of the left upper extremity, to include as secondary to service-connected left wrist arthritis, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs