Citation Nr: 18146400 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 09-37 090A DATE: October 31, 2018 ORDER Entitlement to service connection for right upper extremity neuropathy is denied. REMANDED Entitlement to an increased rating for right shoulder impingement syndrome is remanded. FINDING OF FACT A current neurological disability of the right upper extremity was not incurred in service, did not manifest to a compensable degree within a year of service separation, has not been chronic since service, and is not due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a neurological disability of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1970 to August 1972. In May 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. The Board notes the Veteran also previously perfected an appeal of his service connection claim for a cardiovascular disability. As the Veteran testified before a different Veterans Law Judge regarding that issue, it will be the subject of a separate Board decision. Entitlement to service connection for right upper extremity neuropathy The Veteran seeks service connection for a neurological disability of the right upper extremity, claimed as neuropathy. He asserts he has such a disability due to service, or as due to or aggravated by a service-connected disability. He has been granted service connection for posttraumatic stress disorder (PTSD), bilateral hearing loss, tinnitus, and right shoulder impingement syndrome. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Finally, service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In the present case, the Veteran’s service treatment records are negative for any diagnosis of or treatment for a neurological disability of the right upper extremity. While he did sustain an injury of the right shoulder resulting from a fall, no neurological symptoms, such as numbness or paralysis, of the right upper extremity were noted at that time. On examination for service separation in July 1972, his neurological system was within normal limits, and on his report of medical history, he denied any history of neuritis or paralysis of any extremity. As noted above, the Veteran was subsequently awarded service connection for right shoulder impingement syndrome. Thus, based on this competent evidence, the Board must conclude the Veteran did not sustain a neurological disability of the right shoulder during service. Likewise, he did not seek and was not treated for a neurological disability for many years after service. He also did not report neurological symptoms of his right upper extremity for many years after service. For example, no numbness, loss of strength, or other symptomatology of the right upper extremity were reported on VA examinations in August 2001 and December 2010. His first diagnosis of a neurological disability dates to approximately 2013, when he was diagnosed with mild median neuropathy of the right wrist. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, service connection on a direct basis is not warranted, as such a disability was not incurred in service, did not manifest to a compensable degree within a year thereafter, and has not been continuous since service separation. Regarding the issue of service connection on a secondary basis, the Veteran asserts his service-connected right shoulder impingement syndrome has caused or aggravated his neuropathy of the right shoulder. The Veteran was afforded a VA examination of the right shoulder in May 2013. The claims file was reviewed in conjunction with the examination. On examination of the Veteran and review of the record, the VA examiner diagnosed a neuropathy of the right upper extremity, based on a VA EMG study which confirmed a mild median neuropathy at the right wrist. Regarding the etiology of this disability, the VA examiner opined that because this neuropathy originated at the Veteran’s wrist, it was unrelated to his right shoulder disability. The examiner could find no evidence of a radiculopathy, plexopathy, myopathy, or polyneuropathy of the right shoulder. Based on this competent evidence, uncontroverted in the record, the Board finds the preponderance of the evidence to be against the award of service connection on a secondary basis for a neurological disability of the right upper extremity. The Veteran himself asserts his neuropathy of the right upper extremity is due to service, or a service-connected disability. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, neurological disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the claim of service connection for a neuropathy of the right upper extremity, as such a disability was not incurred in service, did not manifest to a compensable degree within a year of service, has not been chronic since service separation, and is not due to an incident of service. Additionally, a current neurological disability of the right upper extremity is not due to or aggravated by a service-connected disability. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). REASONS FOR REMAND Entitlement to an increased rating for right shoulder impingement syndrome is remanded. Remand of this issue is required to afford the Veteran new VA examination to assess the functional impairment resulting from this disability. Specifically, the prior examinations are insufficient for determining the proper disability rating for the Veteran’s service-connected orthopedic disability based on the recent holding of the U.S. Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such an examination must, among other findings, determine range of motion on both active and passive motion, with and without weight-bearing. Accordingly, remand of this issue is warranted so that a new examination may be conducted and appropriate findings obtained. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination so as to determine the current nature and extent of all impairment due to his service-connected right shoulder disability. The record must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the entire record has been reviewed. All indicated tests should be performed and all findings should be reported in detail. The examiner must test and record the range of motion for the right shoulder in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he/she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. To the extent possible, the examiner is asked to provide retrospective commentary on the Veteran’s impairment level of the right shoulder disability during the appeal period, to include the prior VA examinations performed in conjunction with this claim, and to comment on the range of motion movements that would be painful on passive use, in weight-bearing and non-weight-bearing. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel