Citation Nr: 1815005	
Decision Date: 03/12/18    Archive Date: 03/19/18

DOCKET NO.  14-15 132	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a left arm disability.

2.  Entitlement to service connection for a low back disability.

3.  Entitlement to service connection for a right arm disability.

4.  Entitlement to service connection for an acquired psychiatric disability, to include a depressive disorder.


ATTORNEY FOR THE BOARD

R. Gandhi, Associate Counsel





INTRODUCTION

The Veteran served on active duty in the U.S. Army from November 1973 to November 1976.  He also had service in the Army Reserve.

The matters currently on appeal come before the Board of Veterans' Appeals (Board) from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  These matters were previously remanded by the Board in October 2015 and April 2016. 

The issues of entitlement to service connection for a right arm disability and an acquired psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran has a left arm disability that is etiologically related to active service.  

2.  The Veteran has a low back disability that is etiologically related to active service.


CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a left arm disability have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2017).

2.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a low back disability have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link, or nexus, between the claimed in-service disease or injury and the present disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303 (2017).  For chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, an alternative to the nexus requirement exists: A Veteran may demonstrate a relationship to service through a showing of continuity of symptomatology since service.  38 C.F.R. § 3.303.  Under the continuity of symptoms provision, "symptoms, not treatment, are the essence of any evidence of continuity of symptom[s]."  Savage v. Gober, 10 Vet.App. 488, 496 (1997).

Left Arm Disability

With regard to a current disability, the Veteran is shown to have several disorders affecting the left arm, including left shoulder impingement, rotator cuff tendonitis, left shoulder arthritis, carpal tunnel syndrome, and left ulnar neuropathy.  See, e.g., May 2016 VA examination report; December 2015 VA examination report; November 2008 private treatment record.  Thus, the first element of service connection is met.  See Shedden, supra.

With regard to in-service incurrence, the Veteran contends that he had left arm symptoms during service, perhaps as a result of carrying heavy items such as machine guns and packs during training.  See May 2016 VA Examination.  The record provides support for his contention.  A service treatment record (STR) from the Army Reserve, dated in June 1979, reflects that the Veteran complained of pain in his left side following a four-mile run the previous day, especially around his left shoulder, which was described as being stiff and sore.  The clinical assessment was that he had a pulled abductor muscle.  In another entry (dated in August, but with the year left blank), the Veteran complained that he had pain in his left arm for 48 hours and that his hand felt numb.  Given these in-service notations of left-arm injury during service, the Board finds that the second element of service connection is met.  See id.

With regard to nexus, the Board notes that lay assertions may serve 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.  See 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  Here, the Board finds that the Veteran has persuasively established continuity of symptomatology since service.  See Waters, supra.  When he filed his original claim for compensation in June 2006, the Veteran indicated that the pain and numbness in his arm began in August 1978 (when he was enrolled in the Army Reserve).  During treatment in February 2014, he reported that he had had chronic intermittent left shoulder pain since service, worse over the previous three years.  During a VA examination in May 2016, he similarly asserted that he had had problems with his shoulders since service.

The Board acknowledges that a private medical record from June 2000 reflects that the Veteran had left shoulder pain at that time that had been "going on" for approximately three years.  However, one interpretation of the June 2000 record is that left shoulder pain had been present on an intermittent or recurring basis for more than three years, but that it became constant (ongoing) approximately three years prior the episode of treatment.  In light of that ambiguity, and based on the totality of the record, including the clearly documented complaints during service, the Board finds the Veteran's statements with respect to continuity to be both competent and credible.  The evidence, at a minimum, gives rise to a reasonable doubt on the matter.  38 C.F.R. § 3.102 (2017).

The VA examiner who conducted the most recent VA examination in May 2016 opined that the Veteran's left arm impingement syndrome, left shoulder osteoarthritis and left median and ulnar neuropathy were less likely than not caused by or related to service.  However, the examiner did not accept the Veteran's competent and credible statements with respect continuity of symptomatology since service.  As such, the Board assigns no probative value to the examiner's conclusions.  

As all elements of service connection are established, service connection for a left shoulder disability is granted.  

Low Back Disability 

With regard to a current disability, the record reflects that the Veteran has diagnosed low back disorders, including lumbosacral strain and degenerative arthritis of the spine (DJD).  See May 2016 VA examination.  Thus, the first element of service connection is met.  See Shedden, supra.

With regard to in-service incurrence, the Veteran contends that he had low back problems during service, perhaps as a result of carrying heavy items such as machine guns and packs during training.  See May 2016 VA Examination.  The record provides support for his contention.  An STR reflects that he was seen during service in August 1976 for complaints of pain in his lower back and around both hips for five days.  The clinical impression was that he had a questionable muscle strain of the lumbar region.  Thus, the second element of service connection is met.  See id.

With regard to nexus, the Board finds that, as with the left arm disability, the Veteran has persuasively established continuity of symptomatology since service.  See Waters, supra.  The record reflects that the Veteran was seen at a chiropractic center for back pain in November 2008 and was given diagnoses that included lumbosacral arthritis.  The chiropractor noted that the Veteran began to experience back pain during service and opined, in part, that "the chronicity of the [Veteran's] injuries [from service] cannot be overstated."  Further, in a February 2014 VA examination, the Veteran complained of back pain that began in the 1970s.

The Board acknowledges that the VA examiner who conducted the most recent VA examination in May 2016 opined that the Veteran's lumbar DJD was less likely than not caused by or related to service.  However, the examiner did not accept the Veteran's competent and credible statements with respect continuity of symptomatology since service.  As such, the Board assigns no probative value to the examiner's conclusions.  

As all elements of service connection are established, service connection for a low back disability is granted.  

ORDER

Entitlement to service connection for a left arm disability is granted.

Entitlement to service connection for a low back disability is granted.


REMAND

Upon review of the record, the Board finds that the remaining issues must be remanded.  The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims.

The record reflects that pertinent medical records are outstanding.  Specifically, the Veteran reported in his original June 2006 application for benefits that he received treatment for pain and numbness is his arms from a "Dr. L" (initial used to protect privacy) beginning in 1978.  Furthermore, the Veteran has indicated that he underwent outpatient mental health counseling or psychotherapy by a private care provider in the 1990s and the Mental Health Center in Greensboro, North Carolina, the reports of which are not of record.  See May 2016 VA examination.  Because such records, if obtained, could bear on the outcome of the claims remaining on appeal, efforts must be made to procure them.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). 

Accordingly, the case is REMANDED for the following action:

1.  Assist the Veteran in associating with the claims folder updated treatment records.  Specifically, ask the Veteran to provide releases for relevant records of treatment from Dr. L and the Mental Health Center in Greensboro, North Carolina, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues remaining on appeal.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran.

2.  If, as a result of the foregoing development, additional evidence is received that bears on the etiology of the Veteran's right arm disabilities, schedule the Veteran for a new VA examination with an appropriate examiner to address the nature and etiology of such disabilities.  The claims folder must be made available to the examiner for review in connection with the examination.  The examination report should reflect that the claims file was reviewed, including any newly associated medical records, and a full history should be elicited from the Veteran with regard to his right arm condition(s).

With regard to any diagnosed right arm disability, the examiner should state whether it is at least as likely as not (a 50 percent probability or more) that such a disability began in service, was caused by active service, or is otherwise related to active service.  

The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions.

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

3.  If, as a result of the foregoing development, additional evidence is received that bears on the etiology of the Veteran's acquired psychiatric disorder(s), schedule the Veteran for a new VA examination with an appropriate examiner to address the nature and etiology of any such disorder(s).  The claims folder must be made available to the examiner for review in connection with the examinations.  The examination reports should reflect that the claims file was reviewed, including any newly associated medical records, and a full history should be elicited from the Veteran with regard to his psychiatric condition(s).

(a) The examiner should opine as to whether the Veteran meets the DSM criteria for any acquired psychiatric disorder.

(b) With regard to each acquired psychiatric disorder diagnosed, the examiner should state whether it is at least as likely as not (a 50 percent probability or more) that such disability began in service, was caused by active service, or is otherwise related to active service.  

The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions.

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

4.  After completing any additional notification or development deemed necessary, the claims remaining on appeal should be readjudicated.  If any benefit sought remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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These matters 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. §§ 5109B, 7112 (2012).



______________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs