Citation Nr: 1334090 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 06-17 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for positive tuberculin reaction, claimed as tuberculosis. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an anxiety disorder, claimed as nervous condition. 3. Entitlement to service connection for bilateral hand numbness. 4. Entitlement to an evaluation in excess of 20 percent for a left shoulder rotator cuff tear, status-post repair; partial tear supraspinatus; supraspinatus tendonitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active service from March 1995 to January 1997. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2005 by the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO). In September 2011, the Board remanded the Veteran's claims. The Appeals Management Center (AMC) continued the previous denial of the claims in an August 2012 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to an evaluation in excess of 20 percent for a left shoulder rotator cuff tear, status-post repair; partial tear supraspinatus; supraspinatus tendonitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO originally denied service connection for an anxiety disorder claimed as a nervous condition and a positive tuberculin reaction in a rating decision dated December 2001. The Veteran did not appeal the RO's decision, and, therefore, the decision is final. 2. The RO declined to reopen previously denied claims for a nervous condition and a positive tuberculin reaction in a rating decision dated March 2004 on the ground that the Veteran failed to submit new and material evidence. The Veteran did not appeal the RO's decision and, therefore, the decision is final. 3. The evidence received subsequent to the March 2004 rating decision does not raise a reasonable possibility of substantiating the claims of service connection for a positive tuberculin reaction, claimed as tuberculosis; or an anxiety disorder claimed as a nervous condition. 4. The Veteran's currently diagnosed bilateral hand numbness is not related to his military service. CONCLUSIONS OF LAW 1. The RO's December 2001 and March 2004 rating decisions denying service connection for a nervous condition and a positive tuberculin reaction are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2012). 2. New and material evidence has not been presented since the March 2004 rating decision denying service connection for a positive tuberculin reaction, claimed as tuberculosis; thus, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. New and material evidence has not been presented since the March 2004 rating decision denying service connection for an anxiety disorder, claimed as a nervous condition; thus, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. Bilateral hand numbness was not incurred in active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for a positive tuberculin reaction, an anxiety disorder, and bilateral hand numbness. Implicit in his positive tuberculin reaction and anxiety disorder claims is the contention that new and material evidence which is sufficient to reopen the previously-denied claims has been received. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in September 2011, the Board remanded these claims and asked the agency of original jurisdiction (AOJ) to provide proper notice to the Veteran under the Veterans Claims Assistance Act of 2000 (VCAA); obtain the Veteran's Social Security Administration (SSA) records as well as outstanding VA and private treatment records; and provide the Veteran with a VA examination for his bilateral hand numbness. The Veteran's claims were then to be readjudicated. Pursuant to the Board's remand instructions, the Veteran was provided appropriate VCAA notice. This will be discussed in greater detail below. Additionally, the AMC obtained the Veteran's SSA records as well as outstanding VA treatment records and also attempted to obtain outstanding private treatment records. Furthermore, the Veteran was afforded a VA examination in October 2011 for his bilateral hand numbness. The Veteran's positive tuberculin reaction, anxiety disorder, and bilateral hand numbness claims were readjudicated via the August 2012 SSOC. Accordingly, the Board's remand instructions have been substantially complied with regarding the Veteran's positive tuberculin reaction, anxiety disorder, and bilateral hand numbness claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (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 (2013), 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. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (the Court) specifically addressed VCAA notice requirements in the context of a veteran's request to reopen a previously and finally denied claim. The Court found that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must provide notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were not found in the previous denial. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by letters mailed in March 2005 and September 2011 and notice with respect to the disability rating and effective-date elements of the claims, by a letter mailed in March 2006. The March 2005 letter also advised him how to substantiate his claim for service connection for bilateral hand numbness and informed him of the allocation of responsibilities between himself and VA. Although the March 2006 letter pertaining to the disability rating and effective-date elements of the claim was provided after the initial adjudication of the positive tuberculin and anxiety disorder claims, the Board finds that the Veteran has not been prejudiced by the timing of this letter. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the AMC readjudicated the Veteran's claims in the August 2012 SSOC. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. Additionally, the March 2005 letter informed the Veteran as to the reason his positive tuberculin reaction and anxiety disorder claims were previously denied: "[y]our claim was previously denied because these conditions did not [occur] nor were aggravated by your military service. Therefore, the evidence you submit must relate to this fact." The RO subsequently issued the August 2005 rating decision currently on appeal and explained why the Veteran had not submitted new and material evidence sufficient to reopen his claims of entitlement to service connection for a positive tuberculin reaction and anxiety disorder. In particular, the Veteran was advised that there was no evidence showing active tuberculosis and/or a link between his anxiety disorder and service. The Veteran was further advised by way of a May 2006 statement of the case (SOC) of the criteria outlined in 38 C.F.R. § 3.156 pertaining to the submission of new and material evidence. He was also informed that the evidence did not show that he had active tuberculosis. As such, the Veteran was adequately advised of the basis for the previous denials and of what evidence would be new and material to reopen the claims. See Kent, supra. Based on the notices provided, a reasonable person would be expected to understand what was required to reopen the claims. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). As alluded to above, under the VCAA, VA's statutory duty to assist a claimant in the development of a previously finally denied claim does not attach until the claim has been reopened based on the submission of new and material evidence. Once a claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for benefits under a law administered by VA, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims. The pertinent evidence of record includes the Veteran's statements, his service treatment records, SSA records, as well as VA and private treatment records. The Board notes that the Veteran was not provided a VA examination and nexus opinion with regard to his claims for positive tuberculin reaction and anxiety disorder. However, to the extent that these claims involve an attempt to reopen previously disallowed claims, VA does not have a duty to provide the Veteran with medical examination and opinion in response to a claim to reopen as it is the Veteran's responsibility in such a claim to generate new and material evidence that would warrant a reopening of the claim. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341-44 (Fed. Cir. 2003) (upholding validity of 3.159(c)(4)(C)(iii) and finding that, "without the introduction of new and material evidence, VA is not required to provide a medical examination or opinion"). See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board observes that the Veteran has been asked to provide VA with specific details, to include evidence showing that he has a current positive tuberculin reaction and anxiety disorder that are related to his military service. As will be discussed in greater detail below, the Veteran has not provided new and material evidence that he has a positive tuberculin reaction or that he has anxiety disorder that was incurred during military service. The Board notes that the Veteran has identified several private sources of outstanding treatment records pertaining to his claim. For instance, he requested that VA obtain private records from A. Perez-Toro, M.D. and J. Torres-Flores, M.D. In a September 2011 letter, the AMC requested that the Veteran return a signed and dated VA Form 21-242 Authorization and Consent to Release Information in order to obtain these treatment records. As evidenced by the claims folder, the Veteran did not return a signed and dated medical authorization form. Although the absence of the private treatment records from A. Perez-Toro, M.D. and J. Torres-Flores, M.D. is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records because the Veteran had an obligation to assist VA in the development of his claims by providing a signed and dated medical authorization form. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim]. The Board's decision to not remand the appeal for a second time to obtain these records is supported by the fact that it appears that the AMC made a sufficient attempt to locate the private treatment records. The Veteran was afforded a VA examination for his bilateral hand numbness in October 2011. The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of a representative. In his May 2006 substantive appeal [VA Form 9], he declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision as to the issues of whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection for positive tuberculin reaction and anxiety disorder as well as entitlement to service connection for bilateral hand numbness. New and material evidence for positive tuberculin reaction and anxiety disorder The RO originally denied the Veteran's service connection claims for a nervous condition and a positive tuberculin reaction in a rating decision dated December 2001. Although the RO acknowledged that the Veteran had positive tuberculin reaction test in service, it denied the Veteran's claim because there was no evidence of "an active disease process." The RO also denied the Veteran's claim for a nervous condition noting that there was no evidence linking the Veteran's currently diagnosed anxiety disorder to his period of active service. In reaching this conclusion, the RO considered the Veteran's service treatment records, VA treatment records, including VA examination reports, and the Veteran's lay statements. The Veteran was notified of these decisions and did not appeal. In addition, no new and material evidence was submitted within one year. Therefore, this decision is final. The Veteran subsequently attempted to reopen his service connection claims for a nervous condition and a positive tuberculin reaction by way of a statement dated November 2003. The RO denied the Veteran's claims to reopen in a rating decision dated March 2004 on the grounds that the newly submitted evidence was not material to the Veteran's service connection claims. In determining that the Veteran failed to submit new and material evidence to reopen his service connection claims, the RO considered VA treatment records, including psychiatric treatment records, as well as lay statements. In February 2005 (and within one year of the March 2004 rating decision), the Veteran requested re-evaluation of his non-service-connected disabilities, including a "system condition" and anxiety disorder. He also requested VA obtain "my medical records." As set forth in 38 C.F.R. § 3.156(b), when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, if a veteran merely states that he wishes to reopen his claim before the appeal period ends, but does not submit new and material evidence with that request, then his statement will be accepted as a new claim and not as new and material evidence relating to the original claim. See Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005). Although the Veteran requested re-evaluation of his non-service-connected disability, including a "system condition" and anxiety disorder, in February 2005 (within one year of the March 2004 rating decision) the Veteran submitted no evidence in support of this contention. Furthermore, a careful reading of the Veteran's February 2005 statement shows no intent to disagree with the findings of the March 2004 rating decision. See 38 C.F.R. § 20.201 (2012) (defining a notice of disagreement as "a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement."). Accordingly, the Board concludes that the Veteran's February 2005 statement cannot be construed as a valid notice of disagreement to the March 2004 rating decision and that the March 2004 rating decision is final. Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Moreover, no new and material evidence pertaining to these issues was obtained or submitted within one year of the rating decision. The RO subsequently denied the Veteran's claims to reopen in the August 2005 rating decision currently on appeal on the grounds that he failed to submit new and material evidence. The Veteran was notified of these decisions and timely perfected his appeal. With a claim to reopen filed on or after August 29, 2001, such as this, "new" evidence is defined as evidence not previously submitted to agency decision-makers and "material" evidence as evidence, that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (2013). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial and must raise a reasonable possibility of substantiating the claim. Id., The Board acknowledges that a change in diagnosis or the specificity of the claim must be carefully considered in determining the etiology of a potentially service-connected condition as well as whether the new diagnosis is a progression of the prior diagnosis, a correction of an error in diagnosis, or the development of a new and separate condition. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 203-4 (2009). The Veteran's current claims of service connection for anxiety disorder and positive tuberculin reaction are based on the same factual basis that was of record when the previous claims were last decided on the merits. Thus, new and material evidence is necessary to reopen the claims. As noted above, the RO denied the Veteran's service connection claim for positive tuberculin reaction because there was no evidence of "an active disease process." The RO also denied the Veteran's claim for anxiety disorder noting that there was no evidence linking the Veteran's currently diagnosed anxiety disorder to his period of active service. Evidence received since the RO's last final denial on the claim in March 2004 includes VA treatment records, including inpatient psychiatric treatment reports, and lay statements. For example, the Veteran sought VA care as well as private treatment from February 2005 through March 2009 for symptoms including severe anxiety, depressed mood, and difficulty sleeping. He has been diagnosed with psychiatric disorders including anxiety disorder, not otherwise specified (NOS); depressive disorder, NOS; and generalized anxiety disorder. He was also diagnosed with impaired impulse control. These diagnoses were rendered in relation to situations including the Veteran's stressful work hours and rotational assignments as well as economic problems and lack of primary support. Moreover, in applying for SSA, the Veteran indicated that he was unable to work due in part to his anxiety and loss of memory. The Board further notes that in May 2006, the Veteran submitted his substantive appeal in which he requested that his claims be granted and that he was disabled from his job in law enforcement. Given the evidence of record, the Board finds that new and material evidence sufficient to reopen the Veteran's claims for a positive tuberculin reaction or an acquired psychiatric disorder, to include anxiety disorder, has not been submitted. In this regard, the new evidence does not show a disability related to a positive tuberculin reaction, nor does it show a link between the currently diagnosed anxiety disorder and the Veteran's period of military service. The Veteran has not done so even though the responsibility rests with him. A careful review of VA and private treatment records as well as SSA records and lay statements associated with the claims folder since March 2004 contains no references to an active disease process related to his positive tuberculin reaction. The Veteran was noted to have a past medical history significant for Lyme disease and a positive tuberculin reaction, but no evidence of active Lyme disease was found and no evidence of active tuberculosis was noted. None of the objective evidence of record received since the March 2004 rating decision linked (or could be interpreted to link) the Veteran's psychiatric disorder to his period of military service. On the contrary, the sources included occupational stress, difficult work conditions, rotational work assignments, chronic pain, economic problems, and/or a lack of primary support. The Board acknowledges that the Veteran has submitted "new" evidence since the March 2004 rating decision in that the evidence described immediately above was not previously submitted to agency decision-makers. However, the evidence submitted is not "material" (i.e. evidence, that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim). 38 C.F.R. § 3.156. As the Veteran has not submitted evidence showing "an active disease process" related to his positive tuberculin reaction and/or evidence linking his currently diagnosed psychiatric disorder(s) to his period of military service, new and material evidence has not been submitted and the Veteran's claims to reopen service connection for a positive tuberculin reaction and an acquired psychiatric disorder, to include anxiety disorder, must be denied. The Board has applied the benefit-of-the-doubt doctrine in reaching these conclusions. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection for bilateral hand numbness The Veteran contends that his current bilateral hand numbness is related to his military duties which included working long hours on a computer typing written reports. He has stated that these symptoms were present at a lesser degree while in service but during the past several years the symptoms have intensified. Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including organic diseases of the nervous system, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). The Board initially notes that the record does not reflect medical evidence showing any manifestations of disease of right or left upper extremity during the one-year presumptive period after the Veteran's separation from service. On the contrary, the record does not reflect any complaints or findings of an organic disease of the right or left upper extremity until March 2000 (more than 3 years after the Veteran's separation from active service). Service connection is therefore not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). As to element (1), current disability, the medical evidence of record documents diagnosis of bilateral carpal tunnel syndrome. See, e.g., the October 2011 VA examination report. Element (1) is therefore satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Veteran has stated that his bilateral hand numbness is related to military duties which included working long hours on a computer typing written reports. The Board notes that the Veteran's service treatment records do not document complaints of or treatment for bilateral hand numbness or any other problems associated with the Veteran's hands or forearms. However, the Board notes that the Veteran is competent to attest to experiencing numbness and pain in his hands from typing. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition 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). Therefore, although the Veteran as a lay person has not been shown to be capable of making medical conclusions, he is competent to report the circumstances of experiencing numbness or pain in his hands from typing. Further, the Veteran's DD 214 verifies that his military occupational specialty was a food services specialist, which reasonably involved frequent typing on a computer. Turning to crucial element (3), nexus, the Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran's current bilateral hand numbness is related to his military service. In this regard, the Board notes that the Veteran was afforded a VA examination in October 2011. Pertinently, the examiner considered the Veteran's report that his current bilateral hand numbness is related to his military duties which included working long hours on a computer typing written reports, and that the symptoms were present at a lesser degree while in service but intensified during the past few several years. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with carpal tunnel syndrome and concluded that the Veteran's disability was less likely than not (less than 50 percent probability) incurred in or caused by military service. The examiner's rationale for his opinion was based on his review of the evidence of record which included a nerve conduction study taken four years after the Veteran's discharge from service which revealed normal findings. He also noted that the evidence did not reveal carpal tunnel syndrome until February 2005. Moreover, he indicated that there was no evidence in the record which gave proof of any of the Veteran's hand numbness or symptoms related to his hands during military service. The October 2011 VA examination report is based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the VA examiner's opinion is consistent with the Veteran's medical history, which is absent any symptomatology of bilateral hand numbness for multiple years after service. Further, in rendering the opinion, the VA examiner considered the Veteran's report of working on a computer during service and frequently typing reports, and determined that the Veteran's in-service duties did not cause his current bilateral hand numbness. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so as to. See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including numbness and pain in his hands), has presented no probative clinical evidence of a nexus between his bilateral hand numbness and his military service. The Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to his military service. That is, the Veteran is not competent to opine on matters such as the etiology of his current bilateral hand numbness. Such opinion requires specific medical training referable to the neurological system and its functionality and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a nexus between his bilateral hand numbness and his military service to be of no probative value. See 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]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a nexus. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. The Board notes that the Veteran appears to be contending that he has had bilateral hand numbness continually since service. However, the first postservice evidence of complaint of, or treatment for this disability is dated in March 2000, when the Veteran filed his initial claim of service connection for bilateral hand numbness. This was more than 3 years after the Veteran left service in January 1997. While the Veteran is competent to report symptoms such as pain and numbness in his hands over the years since service, the Board notes that his service treatment records are absent complaints of or treatment for any symptoms related to the hands or forearms. Moreover, on a service report of medical history dated July 1997, the Veteran specifically denied neuritis, and an examination at that time was absent for any symptoms related to his hands. The Board therefore finds that his current statements regarding a continuity of bilateral hand numbness that began in service are not credible. His service treatment records, July 1997 service examination, and the October 2011 VA examination contradict any current assertion that his current bilateral hand numbness was manifested during service. The Board accordingly places no probative value on the assertions of the Veteran that there has been a continuity of symptomatology dating to service. Therefore, continuity of symptomatology after service is not demonstrated. Accordingly, Hickson element (3) is not met, and the Veteran's claim fails on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection bilateral hand numbness. The benefit sought on appeal is accordingly denied. ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for positive tuberculin reaction, claimed as tuberculosis. The benefit sought on appeal remains denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for an anxiety disorder, claimed as nervous condition. The benefit sought on appeal remains denied. Entitlement to service connection for bilateral hand numbness is denied. REMAND The Veteran's service-connected left shoulder rotator cuff tear, status-post repair; partial tear supraspinatus; supraspinatus tendonitis is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5201 (limitation of motion of the arm). It is noted that the Veteran is right-handed. Therefore, his service-connected left shoulder is his "minor" (i.e. non-dominant) hand. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered the potential applicability 38 C.F.R. § 4.73, Diagnostic Codes 5301-5304 pertaining to left shoulder muscle impairment, in particular Diagnostic Code 5304 (Muscle Group IV). The function of Muscle Group IV includes stabilization of the shoulder against injury in strong movements, holding the head of the humerus in the socket, abduction, and outward rotation, and inward rotation of the arm. These muscles include the intrinsic muscles of the shoulder girdle: (1) supraspinatus, (2) infraspinatus and teres minor, (3) subscapularis, and (4) coracobrachialis. Diagnostic Code 5304 assigns a zero percent rating for slight disability of the dominant extremity; a 10 percent rating is assigned for moderate disability; and a 20 percent rating is warranted for moderately severe disability or severe disability. Notably, the competent and probative evidence of record indicates limitation of external and internal rotation. Specifically, a March 2005 VA examination recorded left shoulder internal rotation to 75 degrees, external rotation to 90 degrees, and muscle strength testing of 4.5/5. Furthermore, a March 2006 VA examination indicated active internal rotation to 45 degrees with pain beginning at zero degrees and passive range of motion to 45 degrees with pain beginning at zero degrees. The VA examiner reported additional loss of motion on repetitive use at 45 to 90 degrees with pain being the factor most responsible for additional loss of motion. The examination also indicated active external rotation to 90 degrees with pain beginning at zero degrees and no additional loss of motion on repetitive use. The Veteran's most recent VA examination of record is dated October 2011. Range of motion testing revealed left shoulder forward flexion and abduction to 135 degrees with pain at 90 degrees. The examiner noted that the Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of motion. The examiner further reported no functional loss and/or functional impairment of the shoulder and arm. Although the examiner indicated that the Veteran had localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon of the shoulder, there was no evidence of guarding or ankylosis. Moreover, strength testing was 5/5 for flexion and abduction. Hawkins' Impingement and empty-can tests were negative, although external rotation/infraspinatus strength test and lift-off subscapularis test were positive. A history of mechanical symptoms such as clicking or catching was indicated. There was no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. Crank apprehension and relocation test was negative. The Veteran did not have an acromioclavicular joint condition or any other impairment of the clavicle or scapula. He also did not have tenderness on palpation of the acromioclavicular joint. Cross body abduction test was positive, however. The examiner reported that the nature and severity of the left shoulder is left shoulder rotator cuff tear with moderate severity intensity pain and loss of range of motion of left shoulder. Furthermore, the examiner reported that the Veteran did not have weakened movement, excess fatigability, or incoordination. He did have pain of the left shoulder, but did not have additional loss of range of motion as a result of these symptoms. Pertinently, however, no range of motion testing with regard to left shoulder external or internal rotation was conducted. The Board finds that the current evidence of record is unclear as to the severity of the Veteran's limitation of left shoulder external and internal rotation and if it is due to muscle impairment. Moreover, it is unclear as to whether his left shoulder muscle impairment is a manifestation of his left shoulder rotator cuff tear, status-post repair; partial tear supraspinatus; supraspinatus tendonitis. In light of the foregoing, the Board finds that a VA examination is warranted in order to determine whether the Veteran currently suffers from limitation of external and internal rotation due to muscle impairment and whether the applicability of 38 C.F.R. § 4.73, Diagnostic Code 5304 is warranted to evaluate his left shoulder rotator cuff tear, status-post repair; partial tear supraspinatus; supraspinatus tendonitis. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2013) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA joints and muscle examination to assess the nature and severity of his currently service-connected left shoulder rotator cuff tear, status-post repair; partial tear supraspinatus; supraspinatus tendonitis. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. Specifically, the examiner is asked to provide a complete assessment of the severity of the Veteran's service-connected left shoulder disability, to include a discussion of the ranges of motion of the appropriate joint(s), to include range of flexion, abduction, external rotation, and internal rotation. The examiner is also asked to state whether the Veteran's service-connected left shoulder disability is manifested by weakened movement, excess fatigability, incoordination, or pain, and if so, whether there is an additional loss of range of motion as a result of these symptoms. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain, to include during flare-ups and on repeated use. Identify all muscle groups of the left shoulder affected by the rotator cuff tear, status-post repair; partial tear supraspinatus; supraspinatus tendonitis. For each affected muscle group, describe all residuals of the rotator cuff tear, status-post repair; partial tear supraspinatus; supraspinatus tendonitis. The examiner should address all current manifestations that are shown on examination or indicated by the record to include any loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, limitation of motion, and uncertainty of movement due to any muscle injury. The examiner should evaluate whether residual dysfunction is of slight, moderate, moderately severe, or severe degree. The examiner must provide a complete rationale for any stated opinion. 2. Thereafter, the RO or AMC should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the RO or AMC should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case, which also considers whether a higher or separate rating is warranted based on disability of a muscle group, and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs