Citation Nr: 1340405 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-18 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right arm disorder other than right posterior cutaneous nerve neuropathy, to include as residual of a shell fragment wound. 2. Entitlement to service connection for a neck disorder, to include as residual of a shell fragment wound. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. In addition to other awards and decorations, the Veteran is in receipt of the Combat Infantryman's Badge and the Purple Heart with Oak Leaf Cluster (i.e. second award) for combat service provided in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2008 and August 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied service connection for a right arm disorder and a neck disorder. In February 2010, the Veteran testified before the Board at a travel board hearing. A transcript of this hearing has been associated with the claims file. The Board remanded these claims for additional development in November 2010. The Board notes that a rating decision dated in January 2012 granted service connection for sensory focal neuropathy of the right posterior cutaneous nerve distribution, sequelae of shell fragment wound. Therefore, the Board has recharacterized the issue as entitlement to service connection for a right arm disorder other than right posterior cutaneous nerve neuropathy, as reflected on the title page. The Board notes that, in addition to the paper claims file, there is a paperless, electronic record associated with the Veteran's claims (including Virtual VA and Veterans Benefits Management System (VBMS)). A review of the documents in such record reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The most competent and probative evidence does not relate a right arm disorder other than right posterior cutaneous nerve neuropathy to the Veteran's period of service. 2. The most competent and probative evidence does not relate a neck disorder to the Veteran's period of service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a right arm disorder other than right posterior cutaneous nerve neuropathy have not been met. 38 U.S.C.A. §§ 1110, 1112, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for establishing service connection for a neck disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 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. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a 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 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). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In a February 2008 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The February 2008 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA medical records, VA examination reports, hearing testimony, and the Veteran's statements. The Board finds that the February 2011 VA examinations and June 2012 VA addendum opinion conducted in connection with the claims are adequate because the examiner was informed of the relevant facts regarding the Veteran's medical history and addressed the relevant criteria regarding whether the Veteran's neck disorder and right arm disorder other than right posterior cutaneous nerve neuropathy were due to his period of service. The Veteran has been afforded a Board hearing in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2013) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned and the Veteran's representative asked questions regarding the elements that were lacking to substantiate the Veteran's claims. The Veteran also volunteered his treatment history. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that no further action pursuant to Bryant is necessary. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claims being decided included obtaining the Veteran's updated VA medical records and scheduling the Veteran for a VA examination to determine the etiology of his disabilities. In response, the RO/AMC scheduled the Veteran for February 2011 VA examinations for his right arm and neck and also obtained a VA addendum opinion in June 2012. The RO/AMC additionally obtained the Veteran's current VA medical records. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument, including at a Board hearing. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) (West 2002) provides a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). Satisfactory evidence is credible evidence. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). This provision does not establish a presumption of service connection. Rather, it eases a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service. Both of those inquiries generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155 (1997). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service personnel records show that the Veteran received two Purple Heart awards and the Combat Infantryman's Badge for meritorious service in support of combat operations in Vietnam. Therefore, the Board concedes that the Veteran had combat exposure during service. The Veteran alleges that as the result of direct combat with the enemy or participation in combat in Vietnam, he received two wounds in the right arm and neck. Since right arm and neck injuries are consistent with the circumstances and conditions of combat, the Board concedes that the Veteran incurred right arm and neck injuries during service. 38 U.S.C.A. § 1154(b) (West 2002). While the Veteran's military duties show that he likely had right arm and neck injuries in service, in order to establish service connection, there still needs to be a medical nexus linking his current disabilities to the in-service injuries on his right arm and neck. A March 2006 x-ray of the right forearm revealed that the Veteran had posterior olecranon spur. The Veteran testified before the Board at a travel board hearing in February 2010. Testimony revealed, in pertinent part, that during service, the Veteran received a bullet wound in the right arm and a "mortar scratch" in the neck. The Veteran testified that he currently treated his right arm disorder with a cream that relieved the pain, but that he was not receiving treatment for his neck disorder. On VA examination in February 2011 for the Veteran's right arm, the Veteran reported having right elbow pain since 1967. He complained that he experienced occasional right elbow and dorsal forearm current-like pain which occurred when he put pressure on his arm. Examination revealed right elbow bony joint enlargement and tenderness. An x-ray showed large degenerative spur at the olecranon. There was no objective evidence of a right forearm scar. The Veteran was diagnosed with right olecranon bursitis and right olecranon spurs. The examiner indicated that he had reviewed the claims file and VA medical records. He noted that the June 1967 separation examination was within normal limits and that the Veteran had received a Purple Heart for wounds received in connection with military operation against a hostile force. The examiner also found that service treatment records were silent for any right elbow or forearm conditions. He reported that there were no complaints, objective findings, or treatment for any right elbow or forearm conditions in the Veteran's military records. The examiner opined that the Veteran's right arm/forearm condition was not caused by or a result of his period of active service. He instead concluded that the elbow condition was secondary to the normal aging process. At the February 2011 VA examination for the neck, the Veteran reported having neck pain since 1967. He complained that he experienced occasional stabbing-like pain over his upper right neck that was mild in severity and lasted for minutes every 1 to 6 days a week. Examination revealed cervical muscle spasms, tenderness, and pain with motion. There was some limitation of motion, and an x-ray showed decreased bone mineral, cervical spondylosis, and degenerative arthrosis at the uncovertebral joints. The Veteran was diagnosed with cervical spondylosis and myositis. The examiner indicated that he had reviewed the claims file and VA medical records. He noted that the June 1967 separation examination was within normal limits and that the Veteran had received a Purple Heart for wounds received in connection with military operation against a hostile force. The examiner also found that service treatment records were silent for any neck conditions. He reported that there were no complaints, objective findings, or treatment for any neck conditions in the Veteran's military records. The examiner opined that the Veteran's neck condition was not caused by or a result of his period of active service. He instead concluded that the neck condition was secondary to the normal aging process. In June 2012, the VA examiner from the February 2011 VA examination was requested to provide an addendum opinion in order to consider the Veteran's statement of treatment in the field by a combat medic for his injuries to the neck and right forearm. The examiner was instructed to accept the Veteran's statement as sufficient proof of injury in service even though there was no official record of incurrence in service. The examiner reviewed the Veteran's claims file and again opined that the Veteran's right arm and neck disabilities were less likely than not incurred in or caused by service. He explained that when he had conducted the February 2011 VA examination, he had already acknowledged the Veteran's receipt of the Purple Heart for wounds received in connection with military operation against a hostile force. He further reported that there was not only lack of medical evidence in the Veteran's service treatment records, but there was also no evidence of treatment for the Veteran's neck and elbow upon release from service. He noted that the Veteran's medical records were silent for any right arm or neck conditions for over 20 years. The examiner stated that "[c]ervical spondylosis nor right olecranon bursitis/spurs are etiologically related to a trauma with a riffle bullets while he was on active [s]ervice in 1967." He found that the right arm and neck conditions were instead related to the normal aging process, especially in a 69 year old patient. The examiner concluded that the Veteran's cervical spine and right arm disabilities were less likely than not etiologically related to service, caused by service, or due to sequelae from the in-service combat injury. The Board notes that although there was evidence of in-service injuries to the right arm and neck, on June 1967 separation examination, the Veteran did not make any complaints about his arm or spine, and his arm and spine were found to be within normal limits. In addition, arthritis of the right elbow and cervical spine were not shown to a compensable degree within one year following the Veteran's discharge from service. Moreover, the Board notes that at no time did any of the Veteran's treating providers find that his right arm disorder other than right posterior cutaneous nerve neuropathy and his neck disorder were due to his period of service, to include as residuals of a shell fragment wound. However, the VA examiner who performed the February 2011 VA examination and provided the June 2012 addendum opinion thoroughly reviewed the claims file, interviewed and examined the Veteran, considered the Veteran's lay assertions and combat service, and provided adequate reasoning and bases for the opinion that it was less likely than not that the Veteran's right arm disorder other than right posterior cutaneous nerve neuropathy and his neck disorder were due to his in-service combat injuries. Specifically, the examiner found that although the Veteran had received wounds in connection with military operation against a hostile force during service, the service treatment records did not otherwise show any complaints, objective findings, or treatment for any neck or right arm conditions, particularly the June 1967 separation examination in which the Veteran made no neck or right arm complaints and his neck and spine were determined to be within normal limits. The examiner also explained that cervical spondylosis and right olecranon bursitis/spurs were not etiologically related to a trauma caused by bullets, but were instead related to the normal aging process, especially in a 69 year old patient. The Board acknowledges that the VA examiner's statement that "[c]ervical spondylosis nor right olecranon bursitis/spurs are etiologically related to a trauma with a riffle bullets while he was on active [s]ervice in 1967" is unclear, as the sentence by itself appears to suggest that the neck and right arm disorders are related to in-service trauma from rifle bullets. However, the Board has determined that after reviewing the four corners of the June 2012 VA opinion as a whole, it is clear that the VA examiner was supportive of a negative nexus opinion. For these reasons, the February 2011 VA opinion and June 2012 VA addendum opinion by the VA examiner, taken together, are afforded great probative value. The Board notes that the Veteran has been diagnosed with right olecranon spurs and cervical spondylosis (confirmed by x-ray), which are conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a) (2013) (arthritis). Service connection based on a continuity of symptomatology can be warranted under 38 C.F.R. § 3.303(b) (2013) for chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran is competent to report the onset and chronicity of symptomatology of his right elbow and neck pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, as to the specific issues in this case, whether the Veteran's cervical spondylosis and right olecranon spurs are etiologically related to his service falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms of elbow and neck pain, any actual diagnoses of cervical spondylosis and right olecranon spurs require objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to any current cervical spondylosis and right olecranon spurs requires medical expertise to determine because it involves complex medical matters. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). To the extent that the Veteran himself believes that he has cervical spondylosis and right olecranon spurs that are due to his period of service, including as residuals of shell fragment wounds, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinions as to the etiologies of his current cervical spondylosis and right olecranon spurs are not competent evidence, as the nexus questions involved in this case require medical expertise to determine. Id. The Veteran contends that he has continuously experienced right elbow and neck pain since 1967, but he is not competent to determine that he had diagnoses of cervical spondylosis and right olecranon spurs during that entire time or that the continuous right elbow and neck pain are due to his in-service injuries. Although the Veteran is competent to report the onset and chronicity of symptomatology of his right elbow and neck pain, the Board notes that there are inconsistencies in the evidence of record regarding the onset of his right elbow and neck pain. During his February 2011 VA examination that was scheduled in conjunction with his right arm disorder and neck disorder claims for service connection, the Veteran reported that he had continuously experienced elbow and neck pain since 1967. However, on separation examination in June 1967, the Veteran denied having any arthritis, rheumatism, or bone or joint deformities. The Board finds that the Veteran's lay assertions that his right elbow and neck pain had first manifested during his period of service are not credible. The lay statements made at an examination that was conducted in connection with the Veteran's compensation claims dated in February 2011 contradict the contemporaneous statements that he made upon service separation (denying a history of arthritis, rheumatism, or bone or joint deformities). The Board finds that the medical evidence generated at the time of the Veteran's period of service, including the Veteran's statements and responses on medical questionnaires, to be highly probative. These records are contemporaneous with the Veteran's period of service and contain information that is inherently more reliable than that recorded at a later time, as they are not made in connection with filing a claim for compensation purposes. The June 1967 separation examination report shows that the Veteran's spine and joints were normal upon separation from service, and the Veteran denied a history of arthritis or bone or joint deformities. In sum, the Board finds that the preponderance of the evidence indicates that the Veteran did not have a chronic neck disorder or right arm disorder other than right posterior cutaneous nerve neuropathy in service for which he is already service connected and is receiving compensation. However, there is no competent and credible evidence indicating he had arthritis manifested to a compensable degree within a year following discharge from service. Likewise, the weight of the competent and probative evidence does not show the Veteran's current chronic neck disorder and right arm disorder other than right posterior cutaneous nerve neuropathy are related to his period of service, to include his combat-related injuries therein. Accordingly, service connection for chronic neck disorder and right arm disorder other than right posterior cutaneous nerve neuropathy is not warranted on any basis. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a right arm disorder other than right posterior cutaneous nerve neuropathy, to include as residual of a shell fragment wound, is denied. Entitlement to service connection for a neck disorder, to include as residual of a shell fragment wound, is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs