Citation Nr: 1504519 Decision Date: 01/30/15 Archive Date: 02/09/15 DOCKET NO. 12-18 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include degenerative disc disease, discogenic disease with left radiculopathy, and cervical spondylogenic myelopathy. 2. Entitlement to service connection for right wrist carpal tunnel syndrome. 3. Entitlement to service connection for left wrist carpal tunnel syndrome with radiculopathy and left arm numbness. 4. Entitlement to service connection for a left shoulder disability. 5. Entitlement to service connection for a low back disability, to include lumbar spine degenerative disc disease. 6. Entitlement to service connection for a bilateral leg disability. 7. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from February 1988 to April 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The RO in Muskogee, Oklahoma, transferred jurisdiction to the RO in Roanoke, Virginia. In his July 2012 substantive appeal, the Veteran requested a travel Board hearing. In March 2014, the Veteran withdrew his hearing request. In September 2013, the Veteran filed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, effectively revoking the power of attorney of record. The issues of service connection for a low back disability, to include lumbar spine degenerative disc disease, a bilateral leg disability, and sleep apnea are being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A cervical spine disability, to include cervical spine degenerative disc disease, status post cervical discectomy fusion, discogenic disease with left radiculopathy to the radial nerve, and cervical spondylogenic myelopathy, was not manifested during service or within the initial year of separation, and is not otherwise related to service. 2. Right wrist carpal tunnel syndrome is not related to service. 3. Left wrist carpal tunnel syndrome with radiculopathy and left arm numbness is not related to service. 4. A left shoulder disability, to include arthritis, was not manifested during service or within the initial year of separation, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). 2. The criteria for service connection for carpal tunnel syndrome of the right wrist have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 3. The criteria for service connection for carpal tunnel syndrome of the left wrist with radiculopathy and left arm numbness have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 4. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159 (2014). VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters in June 2009, August 2009, October 2009, and January 2010 satisfied the duty to notify provisions. These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. The claims were subsequently readjudicated, most recently in a July 2013 supplemental statement of the case. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. The Veteran's Social Security Administration disability determination and the records considered in that determination, were obtained in March 2013. VA examinations were conducted in September 2010 and May 2013; the record does not reflect that these examinations were inadequate. The rationales for the opinions provided are based on objective findings, reliable principles, and sound reasoning. There is no indication in the record that any additional evidence relevant to the issues decided is available and not part of the claim file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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). Service connection may be established by chronicity or continuity of symptoms for certain chronic conditions. 38 C.F.R. § 3.303(b); See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is listed as a chronic disease. Analysis I. Cervical Spine The Veteran maintains that service connection is warranted for a cervical spine disability. The May 2013 VA examination report reflects diagnoses of osteoarthritis of the cervical spine with degenerative disc disease; status post cervical discectomy fusion; discogenic disease with left radiculopathy; and cervical spondylogenic myelopathy. Thus, the issue is whether the Veteran's current cervical spine disability is related to service. Service treatment records are negative for complaints or a diagnosis of a cervical spine disability. Although service treatment records in 1988 reflect assessments of muscle strain and "muscle skeletal pain," the complaints were associated with right lower quadrant pain and/or symptoms in the lower extremities. The Veteran is competent to report his symptoms. However, he is not shown to have medical expertise and the etiology of his cervical spine disability falls outside the realm of common knowledge of a lay person. Thus, neither his May 2009 assertion that his cervical spine disability is due to exposure to uranium from artillery rounds, and resulting in arthritis, damage to his nervous system, and/or bone deterioration, nor his January 2013 assertion in a VA treatment record to the effect that a cervical spine disability is due to having had to carry several rounds of missiles in his arms on a few occasions during service, is of probative value with respect to causation. With respect to the Veteran's allegations of sustaining a neck injury in service, the Board notes that competence and credibility are to be distinguished. Although the Veteran is competent to describe an injury that happened as a result of a motor vehicle accident (MVA), in this case, the Board finds the Veteran's assertions lack credibility as they are contradicted by other evidence of record, including the Veteran's own statements. For instance, although the Veteran asserted in his substantive appeal that he sustained a severe neck injury in an MVA during service, the October 1989 service treatment record noting a history of having been involved in a motor vehicle accident three days earlier reflects only a cut on the finger. Moreover, a February 2010 private report notes the Veteran did not recall any trauma that instigated onset of neck pain, which was placed two to three years earlier, and the September 2010 VA hand examination report reflects the Veteran's report of having sustained a neck injury in a motor vehicle accident in 2002. In addition, although a January 2013 VA psychology note reflects the Veteran's report that the vehicle he was driving at the time of the in-service MVA had landed upside down on railroad tracks after he hit a pole, and that he had to be pulled from the vehicle, the October 1989 service treatment record noting a history of an MVA reflects the Veteran was alert and oriented times three, pupils were reactive to light, and Valsalva's maneuver was normal. No abrasion to the head was noted, and good vision, reflexes, and neurologic signs were reported. The assessment was "normal exam." There was no mention of a neck injury, and given the thoroughness of the physical examination report, the Board finds it unlikely that had the Veteran incurred some sort of neck injury in the MVA, this would not have been noted in the service treatment records. As for the January 2013 VA treatment record noting he was "almost given an Article 15" due to the in-service MVA, service personnel records are negative for reference to a motor vehicle accident, although his DD Form 214 reflects he was separated for a pattern of misconduct. In short, the Board finds that service treatment records do not show a chronic neck disability, to include arthritis, during service or within the initial year after separation. A March 2004 VA treatment record reflects that the Veteran denied joint pains, and although a September 2011 private report notes a history of neck pain since service, a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The competent evidence does not establish that a cervical spine disability is related to service. Moreover, and to the extent that the Veteran has attempted to establish continuity of symptoms based on lay statements, the Board finds any such assertion to be inconsistent with the more probative contemporaneous record as noted above, to include not only the negative service treatment records, but also the lengthy gap between separation and the initial documented complaints in regard to the neck. An April 2009 private report reflects onset of cervical spine symptoms in 2008, and the May 2013 VA examination report reflects an initial diagnosis of a cervical spine disability in 2009. In reaching a determination, the Board has accorded greater probative value to the May 2013 VA opinion to the effect that it is less than likely that the Veteran's cervical spine disability, to include degenerative disc disease, status post cervical discectomy fusion, discogenic disease with left radiculopathy, and cervical spondylogenic myelopathy, is related to service. The opinion notes negative service treatment records along with an initial diagnosis of a cervical spine disability many years after service. The opinion is consistent with not only the contemporaneous evidence, but also the September 2010 VA opinion, as well as the probative VA and private treatment records. Such is far more probative than the Veteran's remote lay assertions. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for a cervical spine disability is not warranted. II. Carpal Tunnel Syndrome of the Wrists The Veteran maintains that service connection is warranted for carpal tunnel syndrome of the right wrist and for carpal tunnel syndrome of the left wrist with radiculopathy and left arm numbness, to include as secondary to a cervical spine disability. The May 2013 VA examination report reflects that radiculopathy and numbness of the left arm were attributable to the Veteran's cervical spine condition. As reflected above, service connection for a cervical spine disability is not established. As such, secondary service connection is not warranted. With respect to direct service connection, service treatment records are negative for complaints or a diagnosis pertaining to the right or left wrist. Although service treatment records reflect a sensation of numbness in the hands and fingers in January 1989 following cold weather exposure, assessed as chilblain, there is no evidence of carpal tunnel syndrome of either wrist during service. The September 2010 VA examination report notes no causation between cold injury and carpal tunnel syndrome in medical literature. The examiner concluded that the Veteran's current upper extremity numbness was not caused or aggravated by the hand complaints during service, noting no long-term tissue destruction or diagnosis of frost bite during service. Although service treatment records in 1988 reflect assessments of muscle strain and "muscle skeletal pain," the symptoms were right lower quadrant pain and/or symptoms in the lower extremities, not in the wrists/ upper extremities. The competent evidence does not establish carpal tunnel syndrome of the right or left wrist is related to service. To the extent that a March 2010 VA record notes a history of wrist pain, a bare transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The competent evidence does not relate carpal tunnel syndrome of the right wrist or carpal tunnel syndrome of the left wrist with radiculopathy and left upper extremity and numbness to service. To the extent that the Veteran has attempted to establish continuity of symptoms based on lay statements, carpal tunnel syndrome is not a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, § 3.303(b) does not apply to the claim for service connection for carpal tunnel syndrome. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is competent to report his symptoms; however, he is not shown to have medical expertise and the etiology of his right wrist carpal tunnel syndrome and left wrist carpal tunnel syndrome with radiculopathy and left arm numbness falls outside the realm of common knowledge of a lay person. Thus, and to the extent asserted, neither his May 2009 assertion that his bilateral carpal tunnel syndrome is due to exposure to uranium from artillery rounds, resulting in arthritis, damage to his nervous system, and/or bone deterioration, nor his January 2013 assertion in a VA treatment record that carpal tunnel syndrome is due to having had to carry several rounds of missiles in his arms on a few occasions during service, is of probative value with respect to causation. The May 2013 VA examiner specifically concluded that it is less than likely that carpal tunnel syndrome of the wrists is related to service. The report of examination notes that the Veteran's bilateral wrist condition is not functionally or anatomically related to his left shoulder chronic strain and subacromial bursitis as those conditions exclusively involve the musculoskeletal structures and bursa of the shoulder without involvement of the brachial plexus nerve bundle. In any event, service connection for a left shoulder disability is not established. In reaching a determination, the Board has accorded greater probative value to the May 2013 VA opinion concluding that the Veteran's bilateral carpal tunnel syndrome with radiculopathy and left arm numbness is not related to service. The opinion is consistent with the contemporaneous evidence, and is supported by the September 2010 VA examination report, as well as probative VA treatment records. The rationale provided for the opinion is based on objective findings, reliable principles, and sound reasoning. Such is far more probative than the Veteran's remote lay assertions. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for carpal tunnel syndrome of the right wrist and left wrist with left radiculopathy and left arm numbness is not warranted. III. Left Shoulder The Veteran maintains that service connection is warranted for a left shoulder disability, to include as secondary to a cervical spine disability. As reflected above, service connection for a cervical spine disability is not established. Thus, service connection for a left shoulder disability secondary to a cervical spine disability will not be further addressed. With respect to direct service connection, the May 2013 VA examination report reflects diagnoses of chronic left shoulder strain and subacromial bursitis. Although the report of examination notes a history of left shoulder pain since service, a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Service treatment records are negative for complaints or a diagnosis of a left shoulder disability. Although service treatment records in 1988 reflect assessments of muscle strain and "muscle skeletal pain," the complaints were associated with right lower quadrant pain and/or symptoms in the lower extremities. In addition, and although arthritis was noted on VA x-ray examination in September 2010 and in a September 2011 VA record, arthritis was not shown during service or within the initial year of separation. To the extent that the Veteran has attempted to establish continuity of left shoulder symptoms based on lay statements, the Board finds such to be inconsistent with the more probative contemporaneous record, to include not only the negative service treatment records, but also the lengthy gap between separation and the initial documented complaints in regard to the left shoulder. In fact, a March 2004 VA treatment record reflects that the Veteran denied joint pains, and no complaints of weakness, paresthesias, or numbness were noted. In addition, an April 2009 private report reflects onset of shoulder symptoms in 2008 in association with a cervical spine disability. The Veteran is not shown to have medical expertise and the etiology of his left shoulder disability falls outside the realm of common knowledge of a lay person. Thus, neither his May 2009 assertion that his left shoulder disability is due to exposure to uranium from artillery rounds resulting in arthritis, damage to his nervous system, and/or bone deterioration, nor his assertion in a January 2013 VA treatment record that a left shoulder disability is due to having had to carry several rounds of missiles in his arms on a few occasions during service, is of probative value with respect to causation. In reaching a determination, the Board has accorded greater probative value to the May 2013 VA opinion concluding that the Veteran's left shoulder disability is not related to service. The opinion is consistent with the contemporaneous evidence, is supported by the September 2010 VA examination report and VA treatment records, and the rationale provided is based on objective findings, reliable principles, and sound reasoning. Such is far more probative than the Veteran's remote lay assertions. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for a left shoulder disability is not warranted. ORDER Service connection for a cervical spine disability is denied. Service connection for right wrist carpal tunnel syndrome is denied. Service connection for left wrist carpal tunnel syndrome with radiculopathy and left arm numbness is denied. Service connection for a left shoulder disability is denied. REMAND The Veteran seeks service connection for a low back disability, to include degenerative disc disease, as well as for a bilateral leg disability, including as secondary to the lumbar spine disability, and for sleep apnea. With respect to the issue of sleep apnea, the matter was denied by the RO in a June 2014 rating decision and the Veteran filed a timely August 2014 notice of disagreement. However, the record does not reflect that the RO has issued a statement of the case (SOC). This matter must be remanded for issuance of a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). A December 2008 VA treatment record reflects left hip tenderness with mildly decreased vibration in the toes. A May 2004 VA treatment record reflects an assessment of likely musculoskeletal pain involving the lower ribs. An October 1998 VA treatment record reflects lumbago, and although a history of lower back pain with radiation following a lifting injury in 1996 was noted, the 1997 report of magnetic resonance imaging (MRI) referenced is not of record. VA has a duty to assist in obtaining relevant records. In addition, and although the May 2013 VA opinion is to the effect that lumbar intervertebral disc syndrome right leg sciatica is not related to service, the opinion was based, at least in part, on a finding of no lumbar spine or right leg condition during service. The AOJ's May 2013 VA examination request, however, notes that service treatment records show "Continued treatment for right leg pain diagnosed as muscle strain" in July 1988. The service treatment records noting complaints of right lower quadrant pain and inability to do sit ups reflect assessments to include muscle strain and "muscle skeletal pain." In addition, a March 1989 service treatment record reflects complaints of tenderness in the right thigh after a run. As such, the Board finds the VA opinion to be inadequate. The Veteran is to be afforded a VA examination with respect to nature and etiology of a back disability and bilateral leg disability. Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case in response to the timely Notice of Disagreement filed on the issue of entitlement to sleep apnea that was denied in a June 2014 rating decision. 2. Obtain the 1997 back MRI report referenced in an October 1998 VA treatment record. If the record is unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA back and leg examination by an appropriate medical professional. The entire claim file, to include all electronic files, must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a back disability, to include arthritis, and/or lower extremity disability was manifested in service or within the initial year after separation or is otherwise related to his active service. The examiner must consider any service treatment records noting lower extremity complaints, including the March 1989 record noting tenderness in the right thigh. The examination report must include a complete rationale for all opinions expressed. 4. Finally, readjudicate the appeal. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs