Citation Nr: 1641715 Decision Date: 10/27/16 Archive Date: 11/08/16 DOCKET NO. 08-29 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a left arm disability. 2. Entitlement to service connection for a left leg disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The Veteran served on active duty from September to December 1981, May to September 1994, October 1994 to March 1995 and September 2004 to March 2005. She also had Reserve service including a period of active duty for training (ACDUTRA) that began on January 12, 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In September 2010, the Veteran presented testimony before the undersigned; a copy of the transcript is associated with the electronic record. This appeal was most recently before the Board in September 2015, at which time it was remanded to the RO for additional development. The issue of service connection for a left leg disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran is not shown to have/or have had a left arm disability during the pendency of this claim. CONCLUSION OF LAW A left arm disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance With respect to the matter of service connection for a left arm disability decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria, Factual Background, and Analysis The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 19 (2007). In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran claims service connection for a left arm disability as a result of injuries sustained in service, including a 1994 or 1995 fall during her active duty service in Germany and a January 2004 automobile accident. Service treatment records (STRs) include a December 1981 complaint of a one month history of left arm pain after immunization/shot. Subsequent service records show that the Veteran was ordered to ACDUTRA on January 12, 2004, when she was involved in a motor vehicle accident. The accident was determined to have occurred in the line of duty. Clinical records in connection with this accident show that the Veteran complained of left hand and forearm pain. The assessment was left arm contusion. On a June 2007 VA joints examination, the Veteran reported that her musculoskeletal complaints treated in service had resolved and were not causing difficulties prior to the time of the January 2004 automobile accident. On examination, she complained of constant pain in the left biceps area and the left shoulder area above the elbow since the January 2004 accident. X-ray studies showed a normal left elbow examination and "sclerotic changes head of the humerus raising the possibility of old trauma" on left shoulder examination. Regarding a diagnosis, the examiner noted "no pathology found in left upper extremity." The examiner further noted that "it is more likely than not that any symptoms that the Veteran might have in her left upper extremity would be related to complaints in her neck" and "[a]ny findings of contusions or soft tissue injury at the time of the motor vehicle accident as reported in the record would not be causing any symptoms at this time." VA treatment records include a June 2008 complaint of "neck pain radiating to left arm with tingling sensation and weakness s/p [status post] MVA 04." Subsequent VA treatment records notes similar complaints of ongoing left arm pain Records from the Social Security Administration include an April 2009 Physical Residual Functional Capacity Assessment which notes that the Veteran complained of left arm pain when "reaching." During her September 2010 Board hearing, the Veteran testified that her left arm started hurting when she fell in 1994 or 1995 during her active duty service in Germany, and "never got better." She reported that her left arm pain radiates from her neck into her biceps. A March 2015 VA examination report notes the Veteran's subjective complaints of pain from her scapula and trapezius muscles and neck area radiating to the left wrist. There were no physical findings to indicate radiculopathy. She had normal range of elbow motion with no pain, weakness, fatigability or lack of endurance. The impression was "no pathology with reference to the elbow nor arms, right or left." The examiner noted the Veteran's "soft tissue injuries" in service and explained that "there are no findings nor history to suggest that the veteran's symptoms, as she now has, are a continuation of those inservice conditions nor are they related to the inservice condition." In a January 2016 addendum opinion, after review of the prior examination reports and the electronic claims file, the examiner found "no evidence" of a left arm disability. Regarding the June 2007 left shoulder X-ray which showed sclerotic changes in the head of the humerus raising the possibility of prior trauma, the examiner noted that the "glenohumeral and acromioclavicular joints are negative. There is no soft tissue calcification. The rather faint sclerosis in the humeral head on the left is insignificant. It is not related to any trauma. It is not related to a previous fracture. It is a totally benign condition having no effect upon shoulder function nor symptoms." The threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually has the disability for which service connection is sought, i.e., a left upper extremity disability. In the absence of proof of a present disability, there is no valid claim of service connection. Brammer, 3 Vet. App. at 225. The record does not show a diagnosis of a left upper extremity disability during the appeal period. The Board has considered the Veteran's assertions of left upper extremity pain; however, pain alone without an identifiable underlying malady or condition is not, in and of itself, a compensable disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 259 F 3d. 1356 (Fed. Cir. 2001). While a layperson may be competent to observe symptoms of pain, the diagnosis and etiology of an underlying condition are complex medical questions that require medical expertise/diagnostic study. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The only medical (and competent) evidence regarding whether or not the Veteran has pathology underlying her reports of left arm pain are the opinions of the VA examiner, who found no arm disability. The Board finds that the findings of a medical professional outweigh the Veteran's lay assertions regarding a current diagnosis. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran now has (or at any time during the appeal period had) a diagnosis of a left arm disability. As there is no competent evidence that she has a left arm disability, she has not presented a valid claim of service connection for such disability, and the appeal in the matter must be denied. ORDER The appeal seeking service connection for a left arm disability is denied. REMAND Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The September 2015 Board remand noted that the March 2015 VA examiner discussed the knee but failed to provide an opinion addressing other aspects of the left lower extremity. As such, an addendum opinion addressing the entire left lower extremity was requested. Accordingly, in a January 2016 addendum opinion, the examiner noted the Veteran's inservice January 2004 car accident and 1994 injury and found "no current left leg disability related to any of the above-mentioned incidents or Service." The examiner provided no explanation for this opinion or comment on the Veteran's competent assertions of ongoing left lower extremity pain since the January 2004 automobile accident. The Board finds the January 2016 addendum opinion to be inadequate as it is conclusory and without explanation of rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (noting that "[a] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion.") Therefore, additional development as to this matter is required. On remand, complete updated VA and private treatment records should also be obtained. Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA treatment records. 2. Schedule the Veteran for an examination to determine the nature and likely etiology of any left lower extremity disability. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. Any required diagnostic testing should be performed. Based on the examination and review of the record, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any left lower extremity disability that may be present is etiologically related to the Veteran's active duty service, including her January 2004 car accident and 1994/1995 injury. The examiner is to specifically consider and address the Veteran's competent assertions regarding her in-service left arm symptoms and postservice continuity of such symptoms. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner determines that the questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided. 3. Thereafter, review the expanded record and readjudicate the issue on appeal. If the benefit sought remains denied, the Veteran and her representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim 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). ___________________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs