Citation Nr: 1637306 Decision Date: 09/22/16 Archive Date: 09/30/16 DOCKET NO. 10-24 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a right arm nerve disability, including as secondary to service-connected residuals of a right clavicle fracture or cervical spine degenerative joint disease. ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to August 1973. The Veteran died in April 2011, and the appellant is his surviving spouse, who is continuing this claim through substitution. See December 2011 VA Memorandum. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran requested a Travel Board hearing in his June 2010 substantive appeal; however, a May 2013 Report of General Information reveals that the appellant did not wish to appear at a Travel Board hearing. The hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704(e) (2015). The Board previously remanded this appeal in December 2013 and November 2014. FINDINGS OF FACT 1. The Veteran has not had a right arm "nerve disability" at any point during the pendency of his claim, or proximate to the filing thereof. His complaints of pain, numbness, weakness, and reduced grip strength are not neurological in nature and are associated with nonservice-connected lateral epicondylitis. 2. In a final decision issued in November 2014, the Board denied service connection for a right forearm disability, including lateral epicondylitis. CONCLUSION OF LAW The criteria for service connection for a right arm nerve disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and 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 April 2007 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 and personnel records have been obtained. Post-service VA and private treatment records have also been obtained, including records from the Social Security Administration (SSA). The Veteran was provided several VA examinations pertaining to his right forearm muscle strain and cervical and thoracolumbar spine problems. Additionally, January 2014 and May 2015 VA medical opinions specifically address the alleged nerve problems in his right arm. The examinations, along with the expert medical opinions, are sufficient evidence for deciding the claim. The reports and opinions are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, and describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. Thus, VA's duty to assist has been met. II. 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; 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)). Service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310. The threshold determination in any claim for service connection is whether there exists a "present" or "current" disability. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. In Romanowsky v. Shinseki, 26 Vet. App 289 (2013), the Court added that when the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. For the reasons that follow, the Board finds that service connection is not warranted for a right arm nerve disability because the Veteran did not have a current right arm nerve disability at any point during the pendency of his claim. The Board notes that the Veteran's claim was filed in September 2006. In reaching this determination, the Board is cognizant that the record contains evidence of possible neurologic abnormalities in the right arm. See September 2006 and September 2009 VA examinations (decreased grip strength test results in right versus left hand); May 2007 Magnetic Resonance Imaging study (showing mild left neural foraminal narrowing at C6-7, moderate severe right neural frontal narrowing at C4-5, and moderate neural foraminal narrowing at C5-6); May 2006 VA treatment record (numbness in the trapezius, upper arm radiating to the lateral elbow); December 1999 Electromyography test (finding nonspecific "neuropathic" motor unit pattern with no acute denervative potentials, best described as a diffuse brachial plexus injury, old and recovered). The Board is also aware of the December 2007 letter from a VA medical employee, which indicated that recent magnetic resonance imaging (MRI) and x-rays showed extensive degenerative disease of the cervical spine with narrowing of the spinal canal and impingement of the nerve roots. The employee wrote that the Veteran continues to complain of neck, shoulder, and upper arm pain, and that it was the employee's belief that these problems were directly associated with the motor vehicle accident that the Veteran sustained while on active duty. While the Board recognizes that this is a competent and positive nexus opinion which purports to relate impingement of the nerve roots to an injury sustained on active duty, it does not provide a diagnosis for a nerve disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (Service connection is available for diseases or disabilities, not symptoms. Pain is not a disability for the purposes of a claim for service connection.). Moreover, an April 2008 VA examination for the spine noted the same radiological examinations, to include their findings of neural foraminal narrowing in the cervical spine, and determined there to be no resultant neuropathy. That examination did diagnose a muscle strain in the right forearm, but no nerve condition was found. (A claim of service connection for right forearm muscle strain was discussed and decided in a November 2014 Board decision, therefore this diagnosis is not pertinent to the claim in this appeal which focuses on a nerve problem in the right arm.) The Veteran's VA treatment records do not provide a diagnosis for a right arm nerve disability. The Veteran's private medical records provide a diagnosis of brachial plexus injury, old and recovered, and note that it is likely related to the Veteran's service-connected right clavicle fracture; however, this diagnosis was provided in February 1999, well before the filing of the Veteran's claim for service connection in 2006. VA obtained a January 2014 medical opinion to determine the nature and etiology of the Veteran's right arm problem and in May 2015 the same doctor wrote an addendum opinion. The doctor concluded that the Veteran did not have a nerve condition during the pendency of the claim that affected his right arm. The doctor noted that medical records associated with the motor vehicle accident did not show associated peripheral neurologic findings. He acknowledged that the December 1999 electromyography test did provide a diagnosis of brachial plexus injury, old and recovered; however, the fact that it was characterized as old and recovered indicated that any potential nerve condition that had previously existed was no longer present during the claim period. He also noted that treatment records from neurologists and hand specialists subsequent to that study did not attribute any then-current symptoms to that injury. Instead, the doctor stated that the Veteran's medical history indicated that he had lateral epicondylitis, better known as "tennis elbow." (This muscular condition was considered in the Board's prior November 2014 denial of a right forearm muscle strain.) The doctor wrote that the Veteran's symptoms of pain and reduced grip strength with exacerbation with working and improvement with resting were consistent with this diagnosis. A review of the medical records also show that since a 1991 or 1992 surgery to remove glass from his right hand the Veteran had experienced numbness and weakness in that hand. There were also records that indicated elbow soreness in connection with a 1999 pipe wrench incident and with lifting heavy envelopes of x-rays. All these incidents and symptoms were related to lateral epicondylitis. The doctor also wrote that the Veteran had undergone multiple VA examinations, including some performed by neurologists, that had found no peripheral neuropathy. Lastly, the Board has considered the Veteran and the appellant's lay statements pertaining to the nerve disability. The fact that the Veteran experienced suggestive symptomatology such as pain, numbness, weakness, and reduced grip strength is not in doubt, and the Veteran and the appellant are competent to relay such lay observations. The Veteran and the appellant are not competent, however, to render a diagnosis based on this symptomatology as they do not possess the requisite medical training and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In summary, the Board finds that the preponderance of the evidence does not support that the Veteran has had a current disability during the pendency of his claim. There is no doubt to be resolved; the first element of service connection is not met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a right arm nerve disability is not warranted. ORDER Service connection for a right arm nerve disability is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs