Citation Nr: 1410157	
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  10-47 600	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for a right wrist disability.

2.  Entitlement to service connection for a right elbow disability.

3.  Entitlement to an initial rating in excess of 30 percent for myofascial pain syndrome, excluding a period of a temporary 100 percent disability rating.

4.  Entitlement to an initial rating in excess of 10 percent for a right shoulder disability.

5.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. A. Rein, Counsel


INTRODUCTION

The Veteran served on active duty from July 1996 to February 2009.

This case comes before the Board of Veterans' Appeals (the Board) from a September 2009 rating decision of the St. Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO). 

In May 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge and a transcript of that hearing is of record.

The issue of entitlement to service connection for a left arm disability, to include as secondary to a cervical spine disability, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. 

The issues of entitlement to service connection for a right wrist disability, initial higher ratings for a right shoulder disability and for myofascial pain syndrome, and entitlement to TDIU are REMANDED to the RO via the Appeals Management Center in Washington, D.C.



FINDINGS OF FACT

The Veteran does not have a current diagnosis of any right elbow disability, separate from the already service-connected myofascial pain syndrome.


CONCLUSION OF LAW

The criteria for service connection for a right elbow disability have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice must:  (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice.  Shinseki v. Sanders, 129 S.Ct. 1696 (2009).

The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the Veteran was notified in letters dated in August 2009 and March 2011. 	

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim).  

Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent February 2012 supplemental statement of the case.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).  

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  VA has obtained an examination with respect to the claim decided.  Thus, the Board finds that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).  That determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2013). 

The first requirement for any service connection claim is evidence of a current disability.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  The Veteran alleges that he sustained a right elbow injury in service.  The Service medical records include a record of effusion of the right elbow joint.  When asked during the May 2012 Board hearing as to the Veteran's current problems with his right elbow and if there was a separately diagnosed right elbow disability, aside from the service-connected myofascial pain syndrome, the Veteran's representative stated that the Veteran was looking for an increased rating.  An actual separate right elbow disability was not identified by the Veteran or his representative.   August 2009 and an October 2010 VA joints examinations included x-rays which were negative and the examiner determined on each examination that there was no diagnosable right elbow condition.  VA and private medical records are negative for any right elbow disability, aside from the already service-connected myofascial pain syndrome.  

In this case, there is no post-service evidence of record of any diagnosis of or treatment for any right elbow disability, separate from the Veteran's already service-connected myofascial pain syndrome.  Absent evidence of a current disability, service connection for a right elbow disability must be denied.  There is no competent medical evidence of record that demonstrates the presence of a right elbow disability.  Therefore, the Board finds that service connection for a right elbow disability not warranted. As the preponderance of the evidence is against the claim for service connection, the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49  (1990). 



ORDER

Entitlement to service connection for a right elbow disability is denied.


REMAND 

With regard to the claims for initial higher ratings for a right shoulder disability and for myofascial pain syndrome, the Veteran testified that his symptoms were more severe than the currently assigned ratings and that they had worsened.  The Board also notes that subsequent to the most recent VA examination in December 2011, the Veteran underwent surgery due to a herniated disc of the cervical spine.  In a November 2012 VA examination report, a VA physician opined that the Veteran's herniated disc was at least as likely as not a progression of his service-connected myofascial pain syndrome.  However, no findings as to the severity of the service connected disability were provided.  In addition, an October 2010 VA examination report shows that the VA examiner suggested that the Veteran be evaluated by a rheumatologist for symptoms related to myofascial pain syndrome.  However, there is no evidence that a separate rheumatology examination was performed.  Therefore, to ensure that the record indicates the current severity of the Veteran's service-connected right shoulder disability and myofascial pain syndrome, more contemporaneous examinations are warranted, with findings responsive to all applicable rating criteria.  Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (examination too remote for rating purposes cannot be considered contemporaneous).

With regard to the claim for service connection for a right wrist disability, the service medical records show that in August 2000, the Veteran was assessed with a soft tissue injury to the right hand.  In October 2004, the Veteran hurt his right arm and was found to have edema of the right wrist.  In December 2004, the Veteran fell down onto his outstretched hands and force was transmitted through his right wrist.  The Veteran had mild swelling and tenderness in the right lateral epicondyles.  An x-ray from November 2004 revealed a nondisplaced fracture of the radial head.  A February 2008 MRI of the wrist revealed a reported conclusion of slight effusion at the proximal compartment of the radiocarpal joint, to be respectfully correlated clinically.  A December 2008 report of medical examination diagnosed the Veteran with right ulnar hand/wrist pain.  On contemporaneous self report of medical history, the Veteran complained of right wrist pain when pressing, resting on area. or when typing.  An August 2009 VA examination shows no diagnosis, but that the problem was right wrist tendonitis.  

As part of a November 2010 VA examination, the Veteran underwent an EMG that showed bilateral median neuropathy (carpal tunnel syndrome).  The examiner opined that no nexus could be made between bilateral median neuropathy and a shoulder injury.  In a March 2011 addendum, the prior examiner opined that the Veteran's currently diagnosed right wrist median neuropathy was not related to the incident of right wrist effusion and tenosynovitis of the right hand noted in service.  The rationale was that median neuropathy is caused by repetitive motion and no nexus can be made between median neuropathy and the service injury as an MRI interpretation from 2008 showed no evidence of pathology in the carpal tunnel so medial neuropathy is unrelated.  The examiner further opined that the Veteran's right wrist median neuropathy was not due to or aggravated by service-connected myofascial pain syndrome, cervical spine, or right shoulder disabilities because median neuropathy is localized to the wrist and no nexus between that and the other disabilities could be made.  However, the VA examiner did not consider findings on the Veteran's December 2008 medical examination report where he was diagnosed with right ulnar hand/wrist pain and his contemporaneous self report of medical history where he complained of right wrist pain when pressing, resting on area, or when typing.  

In light of the above, the Board find that there is insufficient medical evidence of record to make a decision on the claim and believes it is necessary to have a VA physician (M.D.) perform an additional examination and render an opinion regarding the etiology of the Veteran's right wrist disability, currently diagnosed as median neuropathy, that considers all the evidence of record.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013).

Prior to arranging for the Veteran to undergo further examination, all outstanding VA records should be obtained and associated with the claims file.  Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992).

Lastly, during the May 2012 Board hearing, the Veteran testified that he had been unable to obtain employment due to his service-connected disabilities.  A TDIU claim is part of an increased rating claim when a TDIU claim is raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the issue of entitlement to a TDIU rating has been raised by the record and is within the jurisdiction of the Board.  However, it is inextricably intertwined with the other pending claims that are being remanded and must also be remanded.

Accordingly, the case is REMANDED for the following actions:

1.  Send the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization, so that any additional evidence pertinent to the claims remaining on appeal that is not currently of record can be obtained.  With regard to the claim for a TDIU, the letter should explain what evidence it is the Veteran's responsibility to submit, to specifically include notice of the requirements for establishing a TDIU

2.  Obtain all outstanding VA medical records.

3.  Then, after completing the above, schedule the Veteran for a VA examination, by an examiner with the appropriate expertise, to determine the current severity of his service-connected right shoulder disability and myofascial pain syndrome.  The examiner must review the claims file and must note that review in the report.  All necessary tests and studies should be accomplished and all clinical findings reported in detail.

(a) Identify all symptoms and manifestations associated with the service-connected right shoulder disability and myofascial pain syndrome.

(b) Identify all symptoms associated with the service-connected right shoulder disability, to include any separate neurological manifestations.

(c) Conduct range of motion testing, expressed in degrees, to include supination, pronation, flexion and extension.  Make specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with the Veteran's service-residuals of right shoulder disability.  If pain on motion is observed, the examiner should indicate the point at which pain begins.  In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain or any of the other symptoms noted above during flare-ups or with repeated use.  To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion.  If there is no specific limitation of motion of the right shoulder due to the service connected impairment, that should also be stated. 

(d) Provide the Veteran a separate rheumatology examination for his myofascial pain syndrome to ensure that all manifestations of his service-connected disabilities are properly addressed.

3.  Then, schedule the Veteran for a VA examination, by a physician (M.D.) with the appropriate expertise, to determine the etiology of a right wrist disability, currently diagnosed as median neuropathy (carpal tunnel syndrome).  The examiner must review the claims file and must note that review in the report.  All necessary tests and studies should be accomplished and all clinical findings reported in detail.  In providing the requested opinions, the examiner must consider lay statements as to the in-service onset of right wrist pain and the continuity of symptomatology since service.  Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner should reconcile the opinion with any other medical opinions of record, to include the November 2010 and March 2011 VA opinions.  The rationale for all opinions expressed should be clearly set forth in the report.  The examiner should provide the following information:

(a) Identify all diagnosed right wrist disabilities, to include CTS, and opine whether is at least as likely as not (50 percent or greater probability) that each disability is the result of injury or disease incurred in or aggravated during service. 

(b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right wrist disability was caused by the service-connected right shoulder disability.

(c) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right wrist disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected right shoulder disability.  If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation.  38 C.F.R. § 3.310 (2013). 

4.  Then, schedule the Veteran for a VA examination to ascertain the cumulative impact of his service-connected disabilities.  The examiner must review the claim file and must note that review in the examination report.  The rationale for all opinions should be explained.  The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, without consideration of his non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation.  If the Veteran's service-connected disabilities do not render him unemployable, the examiner should suggest the type of employment the Veteran would be capable of performing with his current service-connected disabilities, considering his current skills and educational background.  The examiner should also state what accommodations would be necessary due to the service-connected disabilities. 

5.  Then, readjudicate the claims, to include entitlement to a TDIU.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs