Citation Nr: 1806536 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-19 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a left arm disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1979 to March 1982. This current matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction is now with the RO in Chicago, Illinois. Initially, the Veteran requested a Board hearing but failed to show for the videoconference hearing scheduled in March 2017 before a Veterans Law Judge of the Board. The Veteran received notification of the scheduled hearing in February 2017. He subsequently contacted the RO and requested to reschedule the hearing. In August 2017, the RO issued another notification for a videoconference hearing scheduled in August 2017. The Veteran again failed to show for the rescheduled hearing. There is no reason indicated for his failure to appear. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran has had a left arm disability at any time during the current appeal period. CONCLUSION OF LAW The criteria for service connection for left arm condition have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Neither the Veteran, nor his representative has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As to the duty to assist, the Board notes that no VA examination was obtained in relation to the issue of service connection for a left arm disability. In determining whether the duty to assist requires the VA to provide such examination or opinion, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claim for a left arm disability. See 38 U.S.C. § 5103A(a). To that end, the Board observes that there is no competent medical evidence of a current disability or symptoms documented to establish element (1). As described above, his service treatment records are absent of any treatment, findings, or diagnosis of a left arm or left upper extremity disability. Rather, treatment records show treatment for a right arm blood clot which appears to have resolved prior to discharge. Lastly, there is simply no competent evidence of record even suggesting nexus as there is no present disability. As such, in the absence of the required elements, VA has no duty to provide a VA examination or obtain an opinion in this case. Moreover, the United States Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McClendon, 20 Vet. App. at 81. This standard has not been met in this case, and there is sufficient competent medical evidence of record to make a decision on the Veteran's claim herein. Under these circumstances, the Board concludes that appellate review may proceed without prejudice to the Veteran. Service Connection The Veteran filed his service connection claim for a left arm disability in April 2012. This claim was denied by a June 2012 rating decision. He generally contends that he has a left arm disability etiologically related to his active service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). The Veteran's service treatment records do not show any complaints, treatment, findings or diagnosis of a left arm disability. His August 1978 enlistment examination shows normal clinical findings. In particular, upper extremities were found to be normal. He was treated in May 1980 for a blood clot in his right arm and was placed on temporary limited duty. Notably, there was nothing indicated by the examining physician regarding the Veteran's left arm or symptoms reported by the Veteran at that time. Likewise, an April 1983 enlistment examination reflects normal clinical findings of the upper extremities with no symptoms of the left arm reported by the Veteran. He was deemed qualified for enlistment to the Army Reserves. See April 1983 Report of Medical Examination. Medical records after separation from service further fail to show persistent or recurrent symptoms of a left arm disability. In fact, treatment records of February 1994 indicate normal clinical findings upon examination. The examiner found no abnormalities except for a ganglion cyst on the Veteran's left wrist. Upon a review of the evidence, the Board finds the weight of the evidence is against the finding of a present left arm disability, and service connection is not warranted. In so finding, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Specifically, service connection requires a showing of a current disability. A current disability is shown if the claimed condition is present at the time of the claim or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the evidence does not indicate a diagnosis of any left arm disability at any point during the course of this appeal. Contemporaneous medical records do not demonstrate treatment for a left arm disability. Although the Veteran had subjective complaints of shoulder pain in November 2005, there was no diagnosis assigned for such complaints at the time. In this regard, the Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. West, 239 F.3d 1356, 1361-62 (Fed. Cir. 2001). Therefore, the Board finds that the record is absent for a current disability for which entitlement for service connection can be established. To the extent that the Veteran claims he has a current chronic left arm disability, his lay assertions are not considered competent medical evidence. Although he is certainly capable of describing the history in this case and competent to report symptoms which are within the realm of his personal experience, he is not competent to render a medical diagnosis of a left arm disability, as this requires medical expertise. See Davidson v. Shinseki, 581 F.3d 1313 (2009). For this purpose, the Veteran's statements, standing alone, have little probative value, and the Board assigns more weight to the objective medical evidence of record. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection of a left arm disability. The benefit-of-the-doubt doctrine is not for application, and this claim must be denied. 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a left arm disability is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs