Citation Nr: 1334189 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-16 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for disability manifested by numbness in the upper extremities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In August 2013, the Board remanded the claim for additional development. The case has now been returned to the Board for further appellate action. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDING OF FACT A disability manifested by numbness in the upper extremities has not been present during the period of the claim. CONCLUSION OF LAW The criteria for service connection for a disability manifested by numbness in the upper extremities are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), 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. The Board also notes the United States Court of Appeals for Veterans Claims (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). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice by a letter mailed in May 2006, prior to the initial adjudication of the claim in the August 2006 rating decision. The Board also finds that VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, VA obtained the Veteran's service treatment records and his post-service medical evidence. He was also provided with a VA examination in June 2006. Additionally, the Board remanded the Veteran's claim in December 2012 for further development. In the December 2012 Remand, the Board directed that the Veteran be afforded a VA examination, as it was unclear from the medical evidence whether he has a diagnosed disorder affecting his upper extremities. The claims file reflects that he was scheduled for a VA examination in February 2013. However, the Veteran failed to appear for the examination or provide an explanation as to why he did not attend. While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. Ap. 449, 452 (2000) (veteran cannot passively wait for help from VA). As the Veteran has not cooperated with VA's attempt to provide him with another examination, no further assistance is warranted in this regard. As previously noted, the Board mostly recently remanded this case in August 2013. The Board directed the RO or the AMC to contact the Veteran and clarify whether he was claiming to have served in the Southwest Asia theater of operations during the Persian Gulf War. The AMC sent a letter to the Veteran in August 2013 requesting the required clarification. However, the Veteran did not respond. In the August 2013 Remand, the Board also directed the RO or the AMC to obtain any outstanding records pertinent to the Veteran's claim, to include a November 2008 electromyography (EMG) report and any other records identified by the Veteran. The RO requested in an August 2013 letter that the Veteran sign and return the enclosed authorization form to allow VA to obtain his private medical records from any provider he identified. The Veteran has not responded to this request or otherwise identified any outstanding records that VA has not yet obtained. See Woods, 14 Vet. App. at 224. The specified EMG report (dated in December 2007 and scanned into the Veteran's VHA records in November 2008) has been associated with the claims file. Thus, the Board finds that the agency of original jurisdiction has substantially complied with the August 2013 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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 (2013); 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. Factual Background and Analysis The Veteran claims that he currently has a disability manifested by numbness in his upper extremities that began during his active service. Although his representative suggested in written argument submitted in June 2013 the service connection is warranted for the disability on the basis of the Veteran's service in the Southwest Asia theatre of operations during the Persian Gulf War, the Veteran's DD 214 indicates that he had no foreign service and the Veteran denied having such service in his formal claim for service connection. Moreover, as discussed above, when specifically requested to clarify whether he is claiming to have served in the Southwest Asia during the Persian Gulf War, the Veteran did not respond. Therefore, the Board finds that the Veteran did not have such service. Service treatment records have been reviewed and document the Veteran's reports of experiencing neurological symptomatology in his left upper extremity. A July 2002 service treatment record documents the Veteran's report of experiencing constant pain and an aching pressure on his left side, to include his arm. He denied having sustained any injuries. He was assessed with left upper extremity pain. Later that same month, he reported experiencing left arm numbness; the associated examination was normal. A December 2004 service radiology report associated with the assessment of the Veteran's cervical spine includes a notation that a neurological assessment was normal. A November 2005 service treatment record reflects the Veteran's report of experiencing numbness and weakness in his left arm and the left side of his face, along with chronic neck and upper back pain. The physical examination revealed paresthesias, which the examiner thought was possibly secondary to chronic neck spasms. In December 2005, just prior to his separation from active duty, the Veteran stated that his left upper extremity symptoms had resolved. A post-separation, May 2006 private initial cervical spine examination report shows the Veteran's report of experiencing left arm pain, numbness, and/or tingling. The examination revealed normal sensation in the right arm. The examiner noted that sensation on the left arm was subjectively disturbed globally from the fingers to the neck, which he indicated was non-organic. The examination of the left shoulder was essentially normal. The Veteran underwent a VA examination in June 2006 in connection to his claim, at which time he reported experiencing intermittent numbness in his left arm. He also reported experiencing neck pain, and he stated that his symptoms began in service following a hand-to-hand training exercise. The examiner noted that the claims file was reviewed and highlighted that the in-service evaluations of the Veteran's symptoms lacked conclusive, objective findings. Following a clinical examination, the examiner opined that the Veteran's left arm numbness was not caused by or a result of his military service, as there was no objective clinical evidence indicating numbness in the left arm. Additional private records show that the Veteran sought treatment for his spine and left arm symptoms. A July 2006 record includes a notation that the Veteran's subjective complaints regarding his arms were "about the same." A September 2006 private chiropractic patient intake record includes the Veteran's report of experiencing neck pain, radiating pain/numbness from his head to his toes on his left side, and nerve problems. During a December 2007 VA examination, the Veteran reported experiencing diminished sensation in his left upper extremity. No diagnosis was provided with regards to his reported symptomatology. The claims file includes a December 2007 EMG report that documents the Veteran's report of left-sided weakness and numbness. Nerve conduction studies and the needle EMG were normal for the left upper extremity. The examiner concluded that there were no findings to suggest a cervical or lumbosacral radiculopathy. In February 2013, a VA examiner reviewed the claims file and the Veteran's medical records and provided an opinion regarding the Veteran's claim. The examiner noted the Veteran's subject complaints in December 2007 of decreased sensation in his upper left extremity. He also noted his review of a November 2008 EMG report showing that the examination of the Veteran's upper extremities was normal. (The Board again notes that the record includes a December 2007 EMG report that was scanned and included in the Veteran's medical records in November 2008). The examiner also noted that an in-service MRI of the Veteran's cervical spine was normal and without signs of disc disease or radicular impingement. Following his review of the evidence, the examiner opined that the claimed disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner determined that there was no evidence of peripheral neuropathy based on objective medical testing. He also concluded that there was no other medical conditions documented that would cause numbness in the upper extremities. The examiner explained that numbness is solely a dysfunction of the sensory neurons, which could only be present if neuropathy is also present. Thus, the examiner determined that the Veteran's numbness could not be explained by any other mechanism. He further stated that if there was no evidence of neuropathy there was no numbness. Having reviewed the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a disorder manifested by numbness of the upper extremities. The medical evidence pertaining to the period of this claim does not show that the Veteran has been diagnosed with an upper extremity disorder or that his claimed symptomatology has otherwise been attributable to any disease or injury. The evidence linking the Veteran's intermittent upper extremity symptomatology to his active service is limited to the Veteran's own statements. While he is certainly competent report that he has intermittent numbness, he does not possess the expertise required to attribute the numbness to a disease or injury. The medical evidence consistently shows that there is no disease or injury accounting for the claimed numbness. Moreover, the Veteran's statements are self serving. Objective evidence of the claimed numbness has not been found on any physical examination or diagnostic test conducted since the Veteran's discharge from service. Therefore, the Board concludes that the preponderance of the evidence establishes that a disability manifested by numbness in the upper extremities has not been present during the period of this claim. Accordingly, this claim must be denied. ORDER Service connection for a disability manifested by numbness in the upper extremities is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs