Citation Nr: 1335668 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-10 814 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to service connection for a neurological disability of the left upper extremity (claimed as peripheral neuropathy) , to include as secondary to service-connected left shoulder injury residuals. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1952 to October 1956. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2010 rating decision in which the RO, inter alia, denied service connection for ulnar palsy of the left arm, claimed as peripheral neuropathy of the left upper extremity, (and herein referred to as left arm nerve impairment). In June 2010, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in March 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2012. In his April 2012 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. Thereafter, in a July 2012 letter, he requested that his hearing request be withdrawn. See 38 C.F.R. § 20.704(d) (2012). In October 2012, the Acting Chairman of the Board advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). In December 2012, and again, in May 2013, the Board, inter alia, remanded the claim on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. Most recently, after accomplishing further action, the AMC continued to deny the claim (as reflected in a July 2013 SSOC) and returned this matter to the Board in August 2013. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the appellant's claim. The Veteran's Virtual VA claims folder was reviewed in connection with this claim. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim appeal have been accomplished. 2. Although the Veteran reported a history of a fractured left elbow at service entrance, no pre-existing disability was noted at service entrance, and service treatment records do not document any complaints, findings or diagnosis specific to the left arm, to include the elbow. 3. Left arm nerve impairment was not shown in service or for many years thereafter, and the only competent, probative opinions to directly address the question of whether there exists a medical nexus between current left arm nerve impairment and either service or service-connected left shoulder injury residuals weigh against the claim. CONCLUSION OF LAW The criteria for service connection for a neurological disability of the left upper extremity (claimed as peripheral neuropathy), to include as secondary to service-connected left shoulder injury residuals, are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 1137, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a December 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection on a direct and secondary basis, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter also provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The June 2010 RO rating decision reflects the initial adjudication of the claim after issuance of the December 2009 letter. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file includes service treatment records (STRs), VA and private treatment records, and February and July 2013 VA opinions. As mentioned in the Introduction, this appeal was remanded by the Board in December 2012 and May 2013, to obtain a medical opinion which adequately addressed the facts of the case in the context of specified legal criteria. VA opinions were obtained in February and July 2013, and these opinions, when read together, sufficiently answer the questions set out in the Board's December 2012 and May 2013 remands. The Board finds that, no additional RO action to further develop the record in connection with the claim for service connection for left arm nerve impairment, prior to appellate consideration, is required. In particular, as noted above, the Board finds that the RO has complied with the remand instructions, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from 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). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Determinations as to whether the required elements are met are based on 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). A layperson is competent to report his own symptoms, or matters within his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, such assertions must be considered in light of medical and other evidence of record. See Buchanan, supra. Also, under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52, 744-47 (Sept. 7, 2006). The new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52, 744-47 (Sept. 7, 2006). Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). III. Factual Background & Analysis The Veteran seeks service connection for a neurological disability of the left upper extremity, which he claims is due to his service-connected left shoulder injury residuals. The record has also raised the question of whether the Veteran's left arm disability is directly related to service. Here, in connection with his service entrance examination, the Veteran reported fracturing his left arm when he was 15 years old and that doctors "set" his bone. He denied a history of painful or "trick" elbow, and his upper extremities were found normal upon clinical evaluation. During service, treatment records reflect a left shoulder injury (for which service connection has been established), but are silent for any complaints relating to the left arm. At service separation, the Veteran's upper extremities were again found to be clinically normal. Post-service medical evidence documents the Veteran's first complaint of left arm numbness in April 2002. Subsequent VA treatment notes document the Veteran's continuing complaints of numbness and pain in his left arm and hand. None of these record reflect any comment or opinion by a medical professional linking the Veteran's left arm symptomatology to his service-connected left shoulder injury residuals. In May 2010, the Veteran was afforded a VA examination to obtain a medical opinion addressing whether the Veteran's neurological disability of the left upper extremity was caused or is aggravated by the residuals of his left shoulder injury. The Veteran reported that he first noticed left ulnar palsy in the early 1960s (post-service, after his shoulder injury) and that he received a diagnosis of such in the 1960s. He stated he did not notice ulnar palsy after his left arm fracture prior to service. The examiner found that the Veteran had ulnar palsy of the left upper extremity, but stated that he could not resolve the question of its relationship to the service-connected left shoulder injury "without resorting to mere speculation." In the December 2012 remand, the Board deemed this opinion insufficient as the Board could not find that the examiner did not invoke the phrase "without resort to mere speculation" as a substitute for full consideration of all pertinent and available medical facts. See Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). Specifically, the examiner did not identify with precision the exact facts which could not be ascertained from the record, the presence of which would permit him to formulate an opinion as to the etiology of the Veteran's peripheral neuropathy/ulnar palsy. Moreover, while the VA examiner also stated that it was "conceivable" but "unlikely" "based on its constructure," he provided no explanation or rationale regarding how the constructure would impact the likelihood of a relationship between the Veteran's disorders or possible etiologies for the Veteran's neurological disability of the left upper extremity. The examiner also did not discuss whether the Veteran's neurological disorder had been aggravated by residuals of his in-service shoulder injury and subsequent hemiarthroplasty. Pursuant to the Board's remand, the Veteran underwent VA examination in February 2013. The examiner found that it was less likely as not that the Veteran's left arm neurological impairment was caused or aggravated by residuals of his left shoulder injury and subsequent shoulder hemiarthroplasty surgery. The examiner reasoned: The Veteran suffered a supracondylar humerus fracture prior to entering the military. This required traction and casting and left him with permanent loss of extension of the elbow. Ulnar nerve palsies are part of the natural history of such injuries with loss of extension. History, exam and EMG studies are consistent with ulnar nerve palsy and carpal tunnel syndrome and not with radiculopathy or evidence of brachial plexus injury. If his symptoms were due to the shoulder injury or aggravated by the shoulder injury or subsequent surgeries, one would expect signs and symptoms of never damage proximal to the elbow. He does not have these signs or symptoms. Carpal tunnel syndrome is very common. He had it bilaterally and worse on the right side. His carpal tunnel syndrome is most likely related to his decades of manual labor work with his hands for phone companies. Symptoms improved after surgery. Here, the Board notes the examiner's discussion of the Veteran's left arm fracture prior to service entry, the resulting loss of extension of the elbow and that ulnar nerve palsies are a natural progression of such. Through these comments, the Board found that the February 2013 examiner raised, but did not clearly resolve, questions as to whether the Veteran entered service with pre-existing left arm nerve impairment, and, if so, whether such disability was aggravated by service. Accordingly, in May 2013, the Board sought an addendum opinion for clarification. In July 2013, the VA examiner who conducted the February 2013 examination reviewed the claims file and found that the Veteran's left arm nerve impairment did not clearly and unmistakably pre-exist service, as there was no mention of nerve impairment when the Veteran entered the military and his nerve impairment did not have its onset until the 1960s after service separation. The examiner further stated that it was less likely than not that the Veteran's left arm impairment was related to service, as such was did not have its onset until the 1960s, and that his nerve impairment was a direct result of his elbow fracture which he was treated for prior to entering service. He added that the ulnar neuropathy was the natural progression of the sequelae of the injury, and was not cause by or aggravated beyond natural progression by the Veteran's time in service. The Board accords the opinions by the February and July 2013 opinions significant probative value on the question of etiology, as such opinions were based on examination of the Veteran, and a thorough review of the Veteran's medical records and provides a rationale which discusses the Veteran's assertions and pertinent medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary competent evidence or opinion of record to refute the VA examiner's opinions, and neither the Veteran nor representative has identified or even alluded to an existing opinion by a competent professional to support the claim. Accordingly, the Board finds that the competent, probative evidence simply does not support a finding that the Veteran's left arm nerve impairment is etiologically related to service, or to service-connected left shoulder injury residuals. In particular, although the Veteran reported fracturing his left elbow prior to service, given the above, the Board finds that the evidence of record does not show that left arm nerve impairment pre-existed service. No such nerve impairment, or even a left arm disability generally, was noted at service entrance, and the Veteran is presumed sound in that regard. Therefore, there is no burden on VA's part to establish, by clear and unmistakable evidence, that a pre-existing left arm disability was not aggravated during service. Furthermore, the Veteran's left arm nerve impairment is shown to have had its onset in the 1960s, after service separation, and to have not been incurred during, or to have been caused by, service. In this regard, the examiner cited the Veteran's pre-service left arm fracture as the source of his current nerve impairment. He also ruled out the possibility that the Veteran's left arm nerve impairment was due to his service-connected left shoulder injury residuals, instead linking it to his prior left arm fracture and post-service occupation. As such, the probative medical evidence weighs against the claim. Moreover, to whatever extent lay statements of the Veteran are being offered in an attempt to establish that there exists a medical nexus between the Veteran's left arm nerve impairment and either service or service-connected left shoulder disability, such attempts must fail. As indicated above, the claim turns on the question of medical etiology of diagnosed nerve impairment, a complex medical disability-a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to be other than a layperson without appropriate medical training and expertise, he is not competent to render a probative (persuasive) opinion on the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, his lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for left arm nerve impairment must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a neurological disability of the left upper extremity (claimed as peripheral neuropathy), to include as secondary to service-connected left shoulder injury residuals, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs