Citation Nr: 1751579 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 08-04 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right wrist disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. M. Johnson, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to November 1969, June 1970 to October 1970, October 8, 1974 to October 25, 1974, and September 2002 to December 2002. The Veteran also had various periods of service in the National Guard and Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a Board hearing at the RO in Denver, Colorado in June 2011. This transcript has been associated with the file. In October 2011, the Board remanded this matter for further development. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that the issues of entitlement to service connection for posttraumatic stress disorder and entitlement to service connection for hepatitis C were previously on appeal. Subsequent to the Board's October 2011 remand, service connection for these issues was granted in an August 2012 rating decision; accordingly, entitlement to service connection for posttraumatic stress disorder and entitlement to service connection for hepatitis C are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Board notes that the Veteran was previously represented before the Board by attorney Kenneth L. LaVan. In May 2016, during the pendency of the appeal, the Veteran submitted a statement to VA requesting that this attorney's representation in relation to his active claims be terminated. In July 2016, Kenneth L. LaVan submitted a motion to withdraw representation of the Veteran in all active claims before the Board. Kenneth L. LaVan stated that various factors make continued representation impractical or otherwise unethical. The Board notes that the Veteran's appeal was certified to the Board in July 2010. Under 38 C.F.R. § 20.608 (b), following certification of an appeal to the Board, a representative may not withdraw representation without good cause shown on motion; a copy of the motion must be sent to the Veteran who must be provided the opportunity to respond within 30 days of receipt. Here, the Veteran was provided notice of Mr. LaVan's intention to withdraw his representation and was doing so at the request of the Veteran. The Veteran did not dispute these statements. The Board finds that Kenneth L. LaVan properly withdrew his current involvement in the Veteran's claim. See 38 C.F.R. § 14.631. During the pendency of the previously remanded issues, the following issues were perfected by the Veteran: entitlement to service connection for tinnitus, entitlement to service connection for osteoarthritis of the bilateral knees, entitlement to service connection for bilateral cataracts, entitlement to service connection for a scar of the left eye, entitlement to an increased rating for upper right extremity radiculopathy, entitlement to an increased rating for a cervical spine disability, entitlement to a temporary total rating under 38 C.F.R. § 4.29 based on hospitalization over 21 days, and entitlement to a total disability rating based upon individual unemployablity (TDIU). The Board notes that these issues have not been certified to the Board and that the Veteran is awaiting a Board hearing on each of these issues. Consequently, these issues are not ready for adjudication at this time and will be the subject of a separate decision at a later date. FINDINGS OF FACT 1. The Veteran's symptoms of upper right extremity pain and numbness are associated with his service-connected cervical radiculopathy. 2. The Veteran's arthritis of his right shoulder was not incurred during his active service and is not etiologically related to any period of active service. 3. Throughout the appeal period, the Veteran has not had a diagnosis of a right wrist disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.317 (2016). 2. The criteria for entitlement to service connection for a right wrist disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.317 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303 (a) (2016). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for disability which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may also be established on a presumptive basis under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. However, any such condition must not be attributed to any known clinical diagnosis by history, physical examination, and laboratory tests. Objective indications of chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 U.S.C.A. §§ 1117, 1118 (West 2014); 38 C.F.R. § 3.317 (2016). Additionally, several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. § 3.309 (a), including arthritis. 38 C.F.R. § 3.309. Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307 , and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Additionally, the continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection for the chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker, at 1331. The Board finds, however, that service connection for arthritis is not available under 38 C.F.R. § 3.309 (a) as there is no evidence that the Veteran developed arthritis during a period of active service or within a year of separation from a period of active service. The Veteran's service treatment records are silent for a diagnosis of arthritis during service. The Veteran has not contended that his arthritis began during active service or within a year of separation from a period of active service. Further, as will be discussed below, the 2015 VA examiner opined that it was less likely than not that the Veteran's arthritis was incurred during a period of active service. Accordingly, as the evidence weighs against a finding that the Veteran's right shoulder arthritis began during a period of active service or within a year of separation from active service, the Board finds that service connection for arthritis is not warranted under 38 C.F.R. § 3.309. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In May 2005, the Veteran filed a claim for a "neck injury with pain to right hand and arm." During the development of this claim, the Veteran was denied entitlement to service connection to a right wrist disability and arthritis of his right shoulder. The Veteran appealed these issues and a denial of entitlement to service-connection for cervical radiculopathy in an attempt to obtain service connection for the right upper extremity pain and numbness that began during his period of active service. The Veteran was granted service connection for cervical radiculopathy in November 2011, and the issues of entitlement to service connection to a right wrist disability and a right shoulder have remained on appeal. After review of the evidence of record, the Board finds that the Veteran's right shoulder arthritis is not due to any period of his active service and the Veteran has not had a right wrist disability during the appeal period; accordingly, service connection for these issues must be denied. During his June 2011 Board hearing, the Veteran stated that he first noticed his right upper extremity symptoms in 1991. He stated that he was going to Desert Storm out of Charlotte and he had his helmet on and his rucksack and he felt "like bees were stinging me in my neck and then there was tingling in my arm." He reported intermittent problems after this incident and then in 2002 he was getting ready to deploy again and he was carrying his bags and he noticed the pain again. "The stinging in [his] neck... but the pain was in [his] wrist coming down [his] back." Afterwards, the Veteran stated that he saw the medics several times and was told that his symptoms were due to carpal tunnel. Later, he was told that he did not have carpal tunnel and his symptoms were related to his neck. A line of duty report from November 2005 notes that the Veteran was initially seen in October 2002 with complaint of a right wrist sprain. The report states the Veteran was seen again in June 2004 for complaints of right wrist pain with numbness and tingling from elbow to hand and neck pain without known injury. Then, the Veteran underwent an EMG at the USAF Academy Hospital which demonstrated latency of the right median sensory nerve. Finally, the Veteran was seen by a neurologist at the USAF Academy Hospital related to three years of neck pain with right upper extremity radiculopathy. In November 2006, the Veteran underwent a VA examination regarding his complaints of right upper extremity pain. The Veteran reported that he did not recall any injury to his right wrist or shoulder, but that he "simply has pain that radiates from the neck into these areas." He reported a burning pain around the shoulder and a burning, numbing pain around the wrist. X-rays taken of the shoulder demonstrated degenerative joint disease. The examiner did not diagnose any current right wrist injury. The examiner stated that there was no evidence of a current right wrist or shoulder disability related to his cervical spine disorder, and determined that the Veteran was suffering from radiculopathy of the upper extremity in these areas. The examiner opined that it was less likely than not that the Veteran's arthritis was caused or aggravated by his cervical spine condition. In March 2013, the Veteran's condition was evaluated by a VA examiner. The examiner opined that there are no diagnoses given separately for the hand, wrist or arm other than the cervical degenerative disc disease, cervical degenerative joint disease and radiculopathy. In October 2015, another VA medical examination was conducted. The examiner did not provide any current diagnosis for the right wrist and diagnosed glenohumeral joint osteoarthritis and acromioclavicular joint osteoarthritis. The examiner noted that the glenohumeral joint osteoarthritis and acromioclavicular joint osteoarthritis are incidental findings and are not the site of the Veteran's reported pain. While the Veteran reports symptoms in the region of his shoulder, it is technically the muscles attached to the neck and not the shoulder joint that are symptomatic. Based upon these findings, the examiner opined that the Veteran's symptoms are due to his cervical spine disorder. The examiner opined that both the glenohumeral joint osteoarthritis and acromioclavicular joint osteoarthritis are due to normal aging and are less likely than not caused by, or aggravated by, the Veteran's period of service or his service-connected cervical condition. The examiner also opined that the Veteran did not have a disability of the right wrist. The examiner stated that if any prior wrist strain had occurred, then it had resolved, and that the diagnosis of a wrist strain was likely an incorrect diagnosis of the Veteran's radiculopathy. Upon review of the evidence, the Board finds that the evidence weighs against entitlement to service connection for a right shoulder disability or a right wrist disability. With regard to the Veteran's right shoulder, the evidence indicates that the Veteran does have a diagnosis of glenohumeral joint osteoarthritis and acromioclavicular joint osteoarthritis, however, none of the competent evidence of record indicates that this disability is due to the Veteran's period of service or is due to a service-connected condition. All three VA examiners (2006, 2013, and 2015) have indicated that the Veteran's symptoms in the area of his right shoulder that began during service are not related to his right shoulder arthritis; rather these symptoms are related to his service-connected cervical radiculopathy. The 2015 examiner specifically opined that it was less likely than not that the Veteran's arthritis was caused by (or aggravated by) his period of active service or his service-connected cervical condition. The examiner stated that the findings of arthritis were consistent with the Veteran's age and were not shown to be symptomatic. Additionally, the Veteran has not specifically contended that his arthritis of his right shoulder either was caused by or was incurred in any period of active service. Rather, the Veteran indicated in his VA Form 9 and his hearing testimony that he was seeking service connection for symptoms of pain that radiated into his shoulders. As the competent evidence of record weighs against a finding that any disability of the right shoulder, including arthritis of the right shoulder, either was caused by the Veteran's active service or is due to a service-connected condition, the Board finds that service-connection for a right shoulder disability must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert, 1 Vet. App. at 58 (1990). With regard to a right wrist disability, the Board finds that the evidence weighs against a finding that the Veteran had a right wrist injury during the appeal period. While the Veteran reported symptoms of numbness and pain in the area of his right wrist, all of the evidence of record (including the Veteran's own testimony) indicates that this pain is related to his cervical disorder. The Veteran's service medical records indicate that the Veteran may have suffered a right wrist sprain in 2002, however, the Veteran has denied any specific history of injury and none of the VA examiners indicated that the Veteran had a current disability of the right wrist during the appeal period. The Board finds that the evidence weighs against a finding of a right wrist disability during the appeal period; accordingly, service connection for a right wrist disability must be denied. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board has also considered that the Veteran has qualifying service in Southwest Asia to be considered a Persian Gulf War Veteran. The evidence, however, is against a finding that the Veteran has a qualifying undiagnosed illness. The Veteran's symptoms of pain and numbness around his right wrist may not result in a diagnosis of a right wrist disability, but they are contemplated by a diagnosis of record. The Veteran's symptoms are specifically contemplated by his service-connected upper extremity radiculopathy. As the Veteran's symptoms have been attributed to a diagnosed condition, service connection for an undiagnosed illness manifested by pain and numbness in the area of the right wrist is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert, 1 Vet. App. at 58 (1990). Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a right wrist disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs