Citation Nr: 1805677 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-00 173A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a neurological disorder of the right upper extremity as secondary to service-connected degenerative joint disease of the lumbosacral spine. 2. Entitlement to service connection for a neurological disorder of the left upper extremity as secondary to service-connected degenerative joint disease of the lumbosacral spine. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1992 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a travel Board hearing before a Veterans Law Judge (VLJ) in May 2014. A transcript is of record. In October 2014 and November 2016, the Board remanded this issue for further development, including for the provision of a VA examination and addendum opinion regarding the etiology of his bilateral upper extremity peripheral neuropathy. That development having been addressed, the case has since returned to the Board. In July 2017, the Board notified the Veteran that the Veterans Law Judge before whom he testified was no longer employed at the Board, and that he was entitled to another hearing before another Veterans Law Judge, if he so desired. The Veteran did not respond to this letter within the required 30 day time limit, however. Accordingly, he is deemed to have waived his right to another hearing before the Board. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy and radiculopathy of the right upper extremity was not caused or aggravated by his service-connected degenerative joint disease of the lumbosacral spine. 2. The Veteran has not been diagnosed with a left upper extremity neurological disorder during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neurological disorder of the right upper extremity are not satisfied. 38 U.S.C. §§ 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 2. The criteria for entitlement to service connection for a neurological disorder of the right upper extremity are not satisfied. 38 U.S.C. §§ 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). Service connection will be established on a secondary basis for current disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish secondary service connection based on causation, the evidence must show that the claimant has a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). To establish secondary service connection based on aggravation, the evidence must show an increase in severity of a disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected condition. 38 C.F.R. § 3.310 (b). Service connection for a nonservice-connected disease or injury based on aggravation will not be established absent medical evidence of the baseline level of severity of such disease or injury created before the onset of aggravation, or the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). I. Right Upper Extremity The Veteran does not claim that his right upper extremity neurological disorder had its onset during service or is related to service. Rather, he asserts that the pain and numbness experienced in his right upper extremity is secondary to his service-connected degenerative joint disease of the lumbosacral spine. See Hearing Transcript, dated May 15, 2014. The Veteran has current diagnoses of moderately severe nonfocal right ulnar mononeuropathy and multi-level radiculopathies of the right upper extremity. See December 2009 and October 2011 VA EMG/NCS; June 2010 Neurology Follow-Up; January 2011 Neurological follow up; December 2016 VA C&P Examination Report. A January 2011 neurology follow-up note indicated the Veteran began noticing wasting in his right hand in early 2009. See January 2011 Neurology Follow-Up. The Veteran's right hand is characterized by weakness in the right interossei and flexor carpi ulnaris and would spontaneously form into a claw position. Id. The Veteran's physician reported that these symptoms may originate from the Veteran's c-spine diagnosis. See March 2011 Pain Out-patient Initial Evaluation Note. Pursuant to the November 2014 Board remand, the Veteran underwent a VA examination in January 2015 to determine whether his claimed bilateral upper extremity disorders were caused or aggravated by his service-connected lumbar spine DJD. The examiner opined that the claimed right upper extremity and/or left upper extremity neuropathy was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner further noted that the right upper extremity neuropathy was not due to the service-connected lumbar spine disability. Given that the VA examiner's opinion was incomplete, the RO requested an addendum opinion and specifically asked the examiner to address aggravation. In a June 2015 VA addendum opinion, the VA examiner stated that it was less likely than not that the claimed disorders of the upper extremities were secondary to or proximately due to or the result of the service-connected lumbar spine DJD. In support of the opinion the examiner noted that the lumbar spine disability involved degenerative arthritis of the spine and the moderately severe nonfocal right ulnar mononeuropathy and right upper extremity radiculopathy were diagnosed several years earlier. The examiner concluded that nerve damage and radiculopathy had not been caused by or were related to the lumbosacral spine disability. The January 2015/June 2015 VA examiner failed to opine as to whether the lumbar spine DJD aggravated any upper extremity disorder. Further, the opinions rendered by the examiner were conclusory in nature and not supported by an adequate rationale. Accordingly, the January 2015/June 2015 VA examiner's opinions lack probative value. In December 2016, the Veteran underwent an additional VA examination by a different examiner. The examiner concluded that due to "human anatomy, a lower motor neuron condition such as peripheral neuropathy or radiculopathy of the [right] upper extremity cannot be caused or aggravated by a lumbar spine condition." Rather, the examiner found that the Veteran's right upper extremity disorder was related to his cervical spine disorder. Of note, the issue of service connection for a cervical spine disorder is pending adjudication at the RO. See VA Memo, dated March 24, 2017. Accordingly, the Board finds that the most probative evidence of record establishes that the Veteran's right upper extremity neuropathy and radiculopathy were not caused or aggravated by his service-connected lumbar spine condition. While the Veteran believes his right upper extremity disorder was caused or aggravated by his low back disability, and he is competent to describe his symptomatology, he is not competent to determine the etiology of such symptoms. The issue is medically complex and requires specialized knowledge and experience. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 (Fed. Cir. 2007). Further, his opinion is outweighed by that of the December 2016 VA examiner, given his medical training and expertise. The December 2016 VA examiner also provided a rationale for his opinion, namely, that because of human anatomy a lower motor neuron condition cannot be caused or aggravated by a lumbar spine condition. Accordingly, the preponderance of the evidence weighs against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a neurological disorder of the right upper extremity is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Left Upper Extremity On VA neurological evaluations in October 2009, January 2010, June 2010, and October 2010, the Veteran's left upper limb was strong and without pain or numbness/tingling. In December 2010 and March 2011, he complained of numbness on the underside of his left arm. He reported pins and needles from the elbow to the wrist. The Veteran was as afforded a VA C&P examination in January 2015, however, examination of the left upper extremity was normal and the examiner did not diagnose a left upper extremity disorder. On VA examination in December 2016, the Veteran stated he was experiencing symptoms in the left hand that were similar to the neuropathy in his right upper extremity and hand that started years ago. He described that he would have the abrupt onset of involuntary contractions that will typically occur from doing physical activity with his left hand such as picking up a grocery bag. On examination, the examiner noted that the Veteran had no abnormality in the left upper extremity. The examiner stated that it was his medical opinion that the final diagnosis for the left upper extremity was, "Examined for peripheral neuropathy not found on examination." Thus, the Veteran does not have a current diagnosis of a left upper extremity neurological disorder and has not been diagnosed with such a disability during the appeal period. While the Veteran is competent to provide evidence of symptoms, he is not competent to diagnose any underlying neurological disorder. A diagnosis of a peripheral neuropathy or radiculopathy is a complex medical question requiring medical knowledge and expertise that the Veteran does not have. As such, the Board finds the December 2016 VA examiner's opinion to be the most probative evidence of record. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for a neurological disorder of the left upper extremity is not warranted. 38 C.F.R. §§ 3.102, 3.310. ORDER Entitlement to service connection for a neurological disorder of the right upper extremity as secondary to service-connected degenerative joint disease of the lumbosacral spine is denied. Entitlement to service connection for a neurological disorder of the left upper extremity as secondary to service-connected degenerative joint disease of the lumbosacral spine is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs