Citation Nr: 1400161 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 10-46 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for left wrist disability. 2. Entitlement to service connection for low back disability. 3. Entitlement to service connection for left hip disability. 4. Entitlement to service connection for right hip disability. 5. Entitlement to service connection for left ankle disability. 6. Entitlement to service connection for right ankle disability. 7. Entitlement to service connection for left foot disability. 8. Entitlement to service connection for right foot disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from December 2003 to September 2007. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision by the White River Junction, Vermont Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for migraine headaches and disabilities of the right shoulder, left and right wrists, low back, left and right hips, left and right ankles, and left and right feet. In July 2011, the Veteran had a Travel Board hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is in the Veteran's claims file. In March 2013, the Board remanded the case to the RO via the VA Appeals Management Center (AMC). The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). In a May 2013 rating decision, the AMC granted service connection for headache syndrome, right shoulder disability, and right wrist disability. That action resolved the appeal for service connection for those disabilities. The Board has reviewed the Veteran's paper claims and his file on the Virtual VA electronic file system to ensure a total review of the evidence. FINDINGS OF FACT 1. Left wrist problems, including tendonitis, occurred during service and continued or recurred after service. 2. The Veteran has low back pain but does not have any medically diagnosable low back disorder. 3. The Veteran has intermittent left and right hip pain but does not have any medically diagnosable left hip disorder. 4. Bone stress changes of the ankles and feet noted in service have not been followed by any current medically diagnosable left or right ankle disorder or left or right foot disorder. CONCLUSIONS OF LAW 1. Left wrist disability including tendonitis and/or overuse syndrome was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. No low back disability, left or right hip disability, left or right ankle disability, left or right foot disability was incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. 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 appellant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the 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 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). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. The Board provided the Veteran VCAA notice in a November 2007 letter, issued before the initial unfavorable decision on the Veteran's claim. In that letter the RO addressed the information and evidence necessary to substantiate claims for service connection. The RO informed the appellant how VA assigns disability ratings and effective dates. The letter also addressed who was to provide the evidence. In the July 2011 Travel Board hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the appellant's hearing constitutes harmless error. The Veteran's claims file (including records in the paper file and in Virtual VA) contains service treatment records, records of post-service treatment and examinations, and a transcript of the July 2011 Board hearing. The Veteran has had VA medical examinations by qualified clinicians who reviewed his claims file and provided findings and opinions relevant to the claims on appeal. In March 2013, the Board instructed that the Veteran receive additional VA examinations to address the issues on appeal. The Veteran had additional examinations in May 2013, and the examination reports addressed the issues raised in the remand instructions. The Board is satisfied that there has been substantial compliance with the remand instructions. Therefore, no additional remand is warranted, and the Board may proceed with review of the claims on their merits. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. The appellant has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claims on their merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Left Wrist The Veteran contends that he has left and right wrist disabilities that began in service. Service connection has been established for right wrist carpal tunnel syndrome. The Veteran asserts that service connection also is warranted for disability in his left wrist. 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; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury, or for aggravation of a non-service-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2013). Service connection for certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. 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. As noted above, service connection has been established for the Veteran's right wrist carpal tunnel syndrome. Service connection also has been established for his right shoulder bursae and tendon disorders, and for a mental disorder, described as delusion disorder, mixed type, with grandiose and somatic themes. No disorder of the upper extremities was noted on the report of an April 2003 examination of the Veteran for entrance into service. In August 2004, the Veteran sought treatment, reporting a three day history of numbness in his left hand, particularly the fourth and fifth digits. The treating clinician noted mild tenderness to palpation over the medial epicondyle groove. The clinician's impression was mild ulnar neuropathy. In August 2006, the Veteran was seen for pain in the back of the forearm. He indicated that he had experienced the pain for a week associated with increased computer use. He stated that he had experienced such symptoms before, and that the symptoms had diminished with changes to the position of his keyboard. He denied hand or wrist pain or night time numbness. The treating clinician found evidence of minimal increase in pain with movement and palpation of the arm. The clinician provided an assessment of tendonitis, and prescribed wearing splints to minimize movement of the extensor tendons. Treatment notes dated from September 2006 to March 2007 reflect that the Veteran made many reports of musculoskeletal symptoms affecting one or both of his wrists and one or both of his hands. He reported having numbness of fingers in his right hand when he held his arm overhead. He related having pain in both wrists and both hands. He also reported migrating or all over joint and muscle pain. The report of a February 2007 examination contains a notation of a decreased range of wrist motion. The Veteran had a VA medical examination in March 2007, several months before his separation from service. He reported having bilateral wrist tendonitis that began in 2006. He reported ongoing pain in both wrists. The examiner found no disability of the left or right wrist. In statements submitted in 2009 and 2010, the Veteran indicated that he had ongoing pain in both wrists. Private treatment records show that, in January 2009, the Veteran reported recurrent cramping in his left hand. In August 2009, he was seen for pain and numbness in both hands, which he associated with computer work. The treating physician indicated that the Veteran had symptoms of bilateral carpal tunnel syndrome. Electromyography (EMG) performed in August 2009 showed very mild carpal tunnel syndrome in the right wrist only. The physician who interpreted the EMG stated that the Veteran's wrist pain might more likely be musculoskeletal in nature. On follow-up after the EMG, the Veteran reported that his symptoms had improved, though he had still had some limitations. The treating physician's impression was overuse syndrome with right carpal tunnel syndrome. In the July 2011 Board hearing, the Veteran indicated that during service he worked long hours on a computer, and his wrist started hurting. In March 2013, the Board remanded the case to the AMC or RO to provide diagnoses for the Veteran's current musculoskeletal disorders and opinions as to the likelihood that current disorders are associated with disease, injury, or other findings noted in his service treatment records. On VA examination in May 2013, the examiner reported having reviewed the Veteran's claims file. The Veteran reported intermittent aching in both wrists, worse in the left wrist. He stated that he used a work station with improved ergonomics, and that his symptoms had improved. On examination the Veteran's left wrist had motion to 80 degrees of palmar flexion and 70 degrees of dorsiflexion with no objective evidence of painful motion. His right wrist had motion to 60 degrees of palmar flexion and 70 degrees of dorsiflexion with no objective evidence of painful motion. After three repetitions of the motions, the ranges of motion remained the same. The examiner found that the left wrist had no functional impairment, while the right wrist had functional impairment in the forms of less movement than normal, weakened movement, and excess fatigability. On testing, each wrist had normal muscle strength. The examiner noted the 2009 EMG findings of right carpal tunnel syndrome. The examiner found that the Veteran had right carpal tunnel syndrome. The examiner stated that the evidence was not sufficient to diagnose any disorder of the left wrist without resorting to mere speculation. During service a clinician diagnosed tendonitis in both of the Veteran's forearms. The Veteran continued to report symptoms including pain in both wrists over the remainder of his service and since separation from service. The VA clinician who examined the Veteran in 2007 concluded that he had no diagnosable disorder in either wrist. Private physicians who treated the Veteran for symptoms in both wrists in 2009 found carpal tunnel syndrome only in the right wrist, indicated that the left and right wrist symptoms were more likely musculoskeletal, and listed an impression of overuse syndrome. The VA clinician who examined the Veteran in 2013 found that he had right wrist carpal tunnel syndrome and no diagnosable disorder in the left wrist. The private physician and the 2013 examiner each are competent to state whether the Veteran has a post-service left wrist disorder. The private physician's finding that the left wrist has overuse syndrome (while the right wrist has overuse syndrome and carpal tunnel syndrome) has at least as much probative weight as the 2013 examiner's conclusion that the left wrist has no diagnosable disorder. As the positive and negative weight of the evidence regarding that question are approximately balanced, the Board resolves reasonable doubt in the Veteran's favor, and accepts that the Veteran has ongoing left wrist disability. The many reports of left wrist symptoms during and after service support a connection between the disability described as tendonitis during service and as overuse syndrome after service. The Board grants service connection for the current left wrist disability. Low Back Disability The Veteran contends that he has a low back disorder, manifested by low back pain, that began during service and has continued or recurred through the present. No spine or other musculoskeletal disorder was noted on the report of an April 2003 examination of the Veteran for entrance into service. Service treatment records from September 2006 forward reflect the Veteran's numerous reports of pain in his whole body, or migrating joint and muscle pain. On some of those occasions he specifically related having low back pain. In 2006 and 2007 he received chiropractic treatments to address low back pain. Service treatment records do not contain any diagnosis of a medical disorder as a cause for the low back pain. On VA examination in March 2007, the Veteran reported having low back pain since 2006. The examiner found no evidence of pain on motion of the low back nor of muscle spasm. The thoracolumbar spine had a full range of motion. There were no signs of intervertebral disc syndrome. Lumbar spine x-ray findings were within normal limits. The examiner stated that there was no diagnosis of a low back disorder because there was no pathology to render a diagnosis. In a June 2009 statement, the Veteran reported that he had continued to have low back pain since service. In the July 2011 Board hearing, the Veteran stated that during service, in 2006, he began to have pain in many areas of his body, including his low back. In the May 2013 VA examination, the Veteran reported that he had muscle pains all over his body. He denied having back pain at the time of the examination. The examiner found that the Veteran had a full range of motion of the thoracolumbar spine, without objective evidence of painful motion. After three repetitions of motions he still had a full range of motion. The examiner found no functional loss, functional impairment, muscle guarding, or muscle spasm in the Veteran's back. Lower extremity muscle strength, reflexes, and sensory function were normal. The examiner found that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. X-rays did not show arthritis. The examiner provided the opinion that, although the Veteran reports back pain, available medical evidence is not sufficient to diagnose a back disorder without resorting to mere speculation. The examiner noted that the Veteran has service-connected delusional disorder, mixed type, with grandiose and somatic themes. The examiner stated that the back symptoms the Veteran describes are consistent with that mental disorder. The examiner opined that the Veteran does not have a medically diagnosed back disorder, and that therefore it is less likely than not that any post-service back symptoms constitute a disorder that is causally related to symptoms reported during service. The Veteran reported low back pain during service. He reports ongoing low back pain. He is competent to report his symptoms. Medical evidence is needed, however, to indicate whether he has a diagnosable disorder that is producing the back pain. Clinicians who have treated and examined the Veteran have found that he does not have any diagnosable disorder affecting his low back. The preponderance of the evidence indicates that he does not have a current low back disability. The Board therefore denies service connection for claimed low back disability. Left and Right Hip Disabilities The Veteran contends that he has left and right hip disabilities that began in service. Service connection has been established for infrapatellar bursitis of the Veteran's left and right knees, and for a delusion disorder with somatic features. No disorder of either hip was noted on the report of an April 2003 examination of the Veteran for entrance into service. In notes of treatment in June and July 2006 for right knee bursitis, a clinician found that the Veteran's right hip was normal. In September 2006 the Veteran reported pain in his whole body, including pain in both hips. Through the remainder of his service, on several occasions he reported bilateral hip pain, and on many occasions he reported whole body or migrating pain. On VA examination in March 2007, the Veteran reported bilateral hip pain since 2006. The examiner found that each hip had no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement, subluxation, or guarding of movement. Each hip had a full range of motion. After repetitive use, there was no additional limitation of function due to pain, fatigue, weakness, lack or endurance, or incoordination. Left and right hip x-ray findings were within normal limits. The examiner stated that there was no diagnosis of a left hip disorder or a right hip disorder because there was no pathology to render a diagnosis. In June 2009, the Veteran wrote that he began to have left and right hip disorders during service. He stated that presently his hips occasionally popped or snapped audibly, and that such symptoms were followed by tenderness or sometimes excruciating pain. In the July 2011 Board hearing, the Veteran stated that during service, in 2006, he began to have pain in many areas of his body, including both of his hips. In the May 2013 VA examination, the Veteran reported that he had joint and muscle pains all over his body. He stated that he had intermittent pain in each hip, and that the pain was not present at the time of the examination. The examiner found that the Veteran had full ranges of motion of the left and right hips, without objective evidence of painful motion. After three repetitions of motions he still had full ranges of motion. In each hip, the examiner found no functional loss, functional impairment, tenderness, or pain on palpation. Each hip had normal muscle strength. There was no malunion or nonunion of the femur or flail hip on either side, and there was no leg length discrepancy. X-rays did not show arthritis in either hip. The examiner provided the opinion that, although the Veteran reports intermittent left and right hip pain, available medical evidence is not sufficient to diagnose a disorder of either hip without resorting to mere speculation. The examiner noted that the Veteran has service-connected delusional disorder, mixed type, with grandiose and somatic themes. The examiner stated that the left and right hip symptoms the Veteran describes are consistent with that mental disorder. The examiner opined that the Veteran does not have a medically diagnosed disorder of either hip, and that therefore it is less likely than not that any post-service symptoms in either hip constitute a disorder that is causally related to symptoms reported during service. The Veteran reported left and right hip pain during service. He indicates that he continues to have intermittent hip symptoms including pain. He is competent to report his symptoms. Medical evidence is needed, however, to indicate whether he has a diagnosable disorder that is producing the hip symptoms. Clinicians who have treated and examined the Veteran have found that he does not have any diagnosable disorder affecting his left or right hips. The preponderance of the evidence indicates that he does not have a current left or right hip disability. The Board therefore denies service connection for claimed left and right hip disabilities. Left and Right Ankle, Left and Right Foot Disabilities The Veteran contends that he has left and right ankle and left and right foot disabilities that began in service. Service connection has been established for infrapatellar bursitis of the Veteran's left and right knees, and for a delusion disorder with somatic features. No disorder of either ankle or either foot was noted on the report of an April 2003 examination of the Veteran for entrance into service. In May 2004, a clinician removed a corn from the ball of the Veteran's left foot. An August 2006 bone scan showed mild stress changes of the knees, ankles, and midfeet. In September 2006 the Veteran reported pain in his whole body, including pain in both ankles. Through the remainder of his service, on several occasions he reported bilateral ankle and/or foot pain, and on many occasions he reported whole body or migrating pain. On VA examination in March 2007, the Veteran reported bilateral ankle pain since 2006 and a nine-month history of foot pain, with a 2006 diagnosis of stress fractures. The examiner found that left and right ankle and left and right foot x-ray findings were within normal limits. Each ankle had a full range of motion, even after repetitive use. The left and right ankles each had no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement, subluxation, or guarding of movement. There was no additional limitation of function due to pain, fatigue, weakness, lack or endurance, or incoordination. Examination of each foot revealed no tenderness, weakness, edema, atrophy, or disturbed circulation. There were no hammer toes, pes planus, pes cavus, Morton's metatarsalgia, hallux valgus, or hallux rigidus. Neither foot had any limitation with standing and walking. Gross examination of all other foot joints and muscles was within normal limits. The examiner stated that there was no diagnosis of a left ankle disorder, right ankle disorder, left foot disorder, or right foot disorder because there was no pathology to render any such diagnosis. In June 2009, the Veteran noted that during service mild stress changes in the ankles and feet were diagnosed. He asserted that those stress changes caused the bilateral ankle and foot pain he experienced during and since service. He stated that presently he had occasional audible cracking and popping of an ankle or foot, followed by pain and sometimes impaired ability to bear weight. In the July 2011 Board hearing, the Veteran reported that he sustained a knee injury in service, and subsequently developed pain and problems in other areas, including both ankles and feet. He stated that he had ongoing popping and pain in his ankles and feet. He noted that the bone scan performed during service showed stress changes in his ankles and feet. In the May 2013 VA examination, the Veteran reported almost constant aching in both ankles, worse in the right. The examiner found that the Veteran had full ranges of motion of the left and right ankles, without objective evidence of painful motion. After three repetitions of motions he still had full ranges of motion. In each ankle, the examiner found no functional loss, functional impairment, laxity, or pain on palpation. Each ankle had normal muscle strength. In the May 2013 VA examination, the Veteran denied any history of specific injury of either foot. He asserted that pain in his feet was related to disorders of his ankles. Regarding each foot, the examiner found that the Veteran did not have Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, or pes cavus, or other foot injuries. The VA examiner noted that the bone scan performed during the Veteran's service showed in both ankles and feet findings consistent with stress changes. The examiner expressed the opinion that, in the context of the excessive somatization associated with the Veteran's mental disorder, and in the absence of evidence of the progression of symptoms, the stress change findings in service were clinically insignificant. The examiner provided the opinion that, although the Veteran reports intermittent left and right ankle pain, and left and right foot pain, available medical evidence is not sufficient to diagnose a disorder of either ankle or either foot without resorting to mere speculation. The examiner stated that the left and right ankle and left and right foot symptoms the Veteran describes are consistent with his mental disorder. The examiner opined that the Veteran does not have a medically diagnosed disorder of either ankle or either foot, and that therefore it is less likely than not that any post-service symptoms in either ankle or either foot constitute a disorder that is causally related to symptoms reported during service. The Board accepts the Veteran's accounts of left and right ankle and left and right foot pain during service and pain and popping since service. While stress changes were noted on bone scan during service in 2006, no arthritis or other bone abnormality of the ankles or feet was found on x-rays in March 2007. The VA clinician who examined the Veteran in 2013 opined that, in the absence of further findings of ankle or foot disorders, the evidence of stress changes is clinically insignificant. The greater weight of the competent medical evidence indicates that the Veteran does not have current diagnosable disability of either ankle or either foot. In the absence of current disability, the Board denies service connection for claimed left and right ankle and claimed left and right foot disabilities. ORDER Entitlement to service connection for left wrist disability is granted. Entitlement to service connection for low back disability, left and right hip disability, left and right ankle disabilities, and left and right foot disabilities is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs