Citation Nr: 19123701 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 13-24 370 DATE: April 2, 2019 ORDER Entitlement to service connection for disability of the nerves of the right and left upper extremities is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current disability of the nerves of the right and left upper extremities causes impairment in earning capacity and is related to an in-service injury. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for disability of the nerves of the right and left upper extremities have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1995 to May 1998. The claims for entitlement to service connection for bilateral arm nerve damage and bilateral shoulder nerve damage are before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied the following service connection claims: PTSD; carpal tunnel syndrome (CTS) of the right upper extremity (claimed as pain, bilateral hands); CTS of the left upper extremity (claimed as pain, bilateral hands), nerve damage, bilateral arms (also claimed as pain, bilateral arms); and nerve damage, bilateral shoulders (also claimed as pain, bilateral shoulders). The Veteran initially also appealed the issues of entitlement to service connection for bilateral CTS. However, in his August 2013 substantive appeal (VA Form 9), the Veteran expressly limited his appeal to the denial of service connection for nerve damage of the bilateral shoulders and arms. Thus, the issue of service connection for CTS is not before the Board. In May 2015 and June 2017, the Board remanded claims for service connection for verve damage of the bilateral arms and shoulders because the November 2011 and November 2016 VA examinations were inadequate. The case has been returned to the Board for further appellate review. For the reasons below, the Board has recharacterized the issues on appeal as a single claim for disability of the nerves of the right and left upper extremities and will grant the claim as recharacterized. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Service Connection Service connection will be granted if the evidence demonstrates that the current disability resulted from an injury or disease incurred in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, direct service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for disability of the nerves of the right and left upper extremities. The Veteran contends that this current bilateral arm and bilateral shoulder nerve pain are related to his military service. In his August 2013 Form 9 the Veteran asserted he “should be getting compensation for nerve damage/pain in bilateral shoulders and arms” due to an electrical shock during duty. The Veteran further asserted that his disability is not carpal tunnel, as VA examiners have diagnosed previously: he asserted that he never indicated that his wrists hurt. In the Veteran’s July 2010 Application for Compensation and/or Pension, the Veteran detailed the incident that occurred while in service, one he believes caused his bilateral shoulder and bilateral arm nerve damage. The Veteran indicated that while he was working on a piece of high voltage equipment, he was accidentally electrocuted by 15 to 30 000 volts of electricity. He was knocked unconscious for a few minutes and when he awoke he was sent home and told to go to the ER. Further, the Veteran remembers that he has “had severe pains in [his] shoulders and arms and hands ever since it happened.” Moreover, a service treatment record from April 1997 indicated that the Veteran sought treatment after he “shocked himself” in service. The Veteran’s DD Form 214 lists the Veteran’s military occupation specialty as electronic equipment repairman and computer, digital interface unit technician. Thus, the Veteran’s statements are consistent with the places, types, and circumstances of his service. 38 U.S.C. §1154 (a); 38 C.F.R. § 3.303(a). The Veteran is competent to describe events that happened to him and his statements regarding the electric shock are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). Furthermore, throughout the claim period, the Veteran has continuously indicated that he has had right and left upper extremities nerve symptoms since the shock incident in service and the evidence of record is consistent with that assertion. There are three VA examinations on record: November 2011, November 2016, and January 2019. As noted, the November 2011 and November 2016 VA examinations have been found inadequate. The Veteran was again examined by the VA in January 2019. There, the examiner indicated that the Veteran had CTS and that this was the only diagnosis warranted at the time. The examiner did not answer whether the claimed conditions were incurred in or caused by the Veteran’s service, to include to include his in-service shock, but answered only in the secondary service connection section of the examination report that it was not likely that the Veteran’s claimed disabilities were proximately due to or the result of a service connected disease or injury. Moreover, the examiner diagnosed only CTS but also noted pain that could not be measured. Recently, the Federal Circuit held that a diagnosis is not required to establish the current disability element and that pain alone can constitute disability if it causes impairment in earning capacity. Saunders, 886 F.3d at 1364-65. Significantly, in his substantive appeal (VA Form 9), the Veteran wrote that his upper extremities’ symptoms have been a problem since service, thereby implying that his “nerve damage/pain” severely hinders his day-to-day activities, including his earning capacity. January 2011 correspondence from an acquaintance further attested to the Veteran’s reduced participation in society. The Board finds these statements competent and credible. This is precisely the type of impairment that the Federal Circuit indicated in Saunders constitutes disability. Consequently, the current disability requirement has been met with regard to the claim. Moreover, the January 2019 VA examiner’s opinion is inadequate because it did not consider whether the pain constituted disability and, if so, whether it was related to the in-service injury. There are thus inadequate negative nexus opinions weighing against the claim, and competent, credible lay evidence in support. While the Board could remand the claim for an additional medical opinion, this could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”). The evidence of record in this case is sufficient to decide the claim. (Continued on the next page)   The above evidence indicates that the Veteran has experienced the same symptoms in the upper extremities from the time of his in-service injury until the present and the current symptoms cause impairment in earning capacity. There is no competent medical evidence to the contrary, as each of the VA opinions have been inadequate. Moreover, there have been medical findings of upper extremity nerve abnormalities. Thus, the evidence is approximately evenly balanced as to whether the Veteran’s disability of the nerves of the right and left upper extremities is related to his in-service electric shock incident. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for disability of the nerves of the right and left upper extremities is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lopez, Law Clerk