Citation Nr: 1600481 Decision Date: 01/07/16 Archive Date: 01/21/16 DOCKET NO. 11-15 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a left arm disability. 2. Entitlement to service connection for a right arm disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to December 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA). Throughout the pendency of her appeals, the Veteran has referred to her disabilities in different ways, calling them injuries to her arms, wrists, and hands. In the interest of clarity, and in an effort to be consistent and to encompass all possible disabilities, the Board shall simply refer to her claims broadly as seeking service connection for both right and left arm disabilities. On the Veteran's June 2011 substantive appeal, she requested the opportunity to testify before a member of the Board at the RO. She was scheduled for such a hearing in November 2011; at that time, she asked to be rescheduled for a video conference hearing. A second hearing was scheduled for January 2012. The Veteran did not attend this hearing, nor has she asked for her hearing to be rescheduled. Her hearing request is thus considered withdrawn. Additional evidence (specifically VA treatment records) was received subsequent to the May 2011 statement of the case. As the evidence is not pertinent to the claim decided here, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c) (2015). The issue of entitlement to a right arm disability is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction. FINDING OF FACT The Veteran did not injure her left arm during her active service, and her current left arm disability is related to a post-service automobile accident. CONCLUSION OF LAW The criteria for service connection for a left arm disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). A standard March 2009 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained. Post-service VA and private treatment records have also been obtained. The Veteran was provided a VA medical examination in May 2009. The examination, along with the expert medical opinion, is sufficient evidence for deciding the claim. The report is adequate as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. Thus, VA's duty to assist has been met. II. Entitlement to Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). At a May 2009 VA examination, the Veteran was diagnosed as suffering from left hand and wrist sympathetic dystrophy. Though the examiner stated that this condition affected the Veteran's right wrist rather than her left, the entirety of his examination and his questioning regarding the Veteran's medical was focused on her left arm rather than her right. The examiner's use of right rather than left in his diagnosis section appears to be a mere conflation of the two. The Board shall resolve all reasonable doubt in the Veteran's favor and concludes that the Veteran does currently suffer from a left arm disability. There is, however, insufficient evidence that the Veteran suffered a left arm, wrist, or hand injury during her active service, or that she was diagnosed as suffering from any such disability at that time. A March 1974 record does reflect that the Veteran injured her right wrist when it was crushed in a door at a missile silo (a fact explored in greater detail in the remand section below), but there is nothing at all regarding her left arm. Her December 1976 separation examination and December 1976 report of medical history at separation are similarly silent as to any particular left arm, wrist, or hand injury. Moreover, the Veteran has not identified a possible in-service event, injury or disease pertaining to the left arm. The in-service incurrence criterion is not met. Further, the evidence shows that the Veteran's current disability relates to a post-service automobile accident. Two letters from the Veteran's previous private physicians note that she injured her left arm in 1988. In a May 1990 letter, T.L.M., MD, wrote that the Veteran was involved in a motor vehicle accident on December 6, 1988 when she "braced her left arm against the steering wheel" before her accident. Dr. T.L.M. diagnosed the Veteran as suffering from left sided thoracic outlet syndrome and early reflex sympathetic dystrophy of the left hand. In an October 1990 letter, P.E.M., MD, similarly noted that the Veteran's left arm "history starts on December 6, 1988" when the Veteran was injured in a car accident. Based on these letters, the examiner from the Veteran's May 2009 VA examination concluded that the Veteran's current left arm disability "is at least as likely as not due to or a result of" the injuries she suffered in her 1988 accident. There is no other evidence, medical or otherwise, relating the Veteran's current left arm, wrist, or hand disability to her active service. Indeed, the Veteran herself had previously noted that her left arm disability is related to her post-service accident. On an earlier December 1990 pension claim, the Veteran stated that her right hand was "crushed in 1974 by [a] missile silo door." She also noted that she injured her left hand and arm in a December 1988 automobile accident. In summary, the Board finds that, while the Veteran does currently suffer from a left arm disability, the evidence does not show an in-service incurrence or occurrence of this disability, and the evidence does show that her current disability is related to a post-service car accident and not to her active service. The preponderance of the evidence is against her claim, there is no doubt to be resolved, and service connection for a left arm disability is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left arm disability is denied. REMAND The Veteran's claim for service connection for a right arm disability must be remanded. A review of the history of her claims illustrates why. As noted above, the Veteran injured her right wrist during her active service in 1974. When she filed the claim at issue here in February 2009, she sought service connection for an "arm injury from getting caught in the silo door closing." The Veteran did not specify to which arm she was referring. At her May 2009 VA examination, the examiner noted the Veteran's in-service injury to her right arm. However, the examiner also noted that the Veteran was "a somewhat difficult historian" with regard to her in-service injury, and he focused on the Veteran's post-service left arm injury and disability in his examination and his etiology discussion. The May 2009 rating decision at issue here denied service connection for both a right hand and wrist disability and a left arm disability. In her October 2009 notice of disagreement (NOD), the Veteran stated that she "would like to appeal the [decision] about my arm that was hurt by a missile silo door." The RO interpreted this as a notice of disagreement with regard to the denial for a left arm disability, and the May 2011 statement of the case addressed that issue only. Though the Veteran did not specify to which arm she was referring in her October 2009 NOD, the evidence of record clearly established that she injured her right wrist in service. Thus, the Board concludes that the Veteran intended to appeal the denial of service connection for disabilities of her right arm. When there has been an adjudication by the RO and a timely NOD has been filed, a statement of the case addressing the issue must be furnished to the appellant. Manlincon v. West, 12 Vet. App. 238 (1999). As no statement of the case has been issued for the Veteran's right arm claim, it must be remanded. Accordingly, the case is REMANDED for the following action: Provide a statement of the case to the Veteran regarding the issue of entitlement to service connection for a right arm disability. Return this issue to the Board only if the Veteran perfects a timely appeal of the issues. The appellant has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs