Citation Nr: 19155263 Decision Date: 07/18/19 Archive Date: 07/17/19 DOCKET NO. 15-07 373 DATE: July 18, 2019 ORDER Entitlement to service connection for a disability manifested by left-sided weakness is denied. REMANDED Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a left knee disability, including as due to a service-connected right knee disability, is remanded. Entitlement to service connection for hypertension, including as due to a service-connected right knee disability, is remanded. FINDING OF FACT The record evidence shows that the Veteran does not experience any current disability due to his claimed disability manifested by left-sided weakness which is related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability manifested by left-sided weakness have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2012) 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active duty for training (ACDUTRA) in the U.S. Army from September 1988 to February 1989 and in May 1990. He also had a period of active service in the U.S. Army from September 1990 to July 1991, including in the southwest Asia theater of operations during the Persian Gulf War. He further had additional unverified active service. The Veteran appointed his current attorney to represent him before VA by filing a completed VA Form 21-22a at the Agency of Original Jurisdiction (AOJ) in June 2018. A videoconference Board hearing was held in June 2018 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In September 2018, the Board remanded the currently appealed claims to the AOJ for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives only with respect to the Veteran’s service connection claim for a disability manifested by left-sided weakness. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. 1. Entitlement to service connection for a disability manifested by left-sided weakness The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of service connection for a disability manifested by left-sided weakness. Despite the Veteran’s assertions to the contrary, the record evidence shows that he does not experience any current disability due to his claimed disability manifested by left-sided weakness which is attributable to active service. The Veteran has contended that he experienced left-sided weakness during active service, specifically as a residual of being struck by lightning while on a period of ACDUTRA in May 1990. The Board previously conceded in the September 2018 remand that the Veteran experienced electrical shock, status-post lightning strike, while in the field during a period of ACUDTRA in May 1990. The Veteran’s available service treatment records show that he was placed on a temporary physical profile in March 1991 due to left-sided weakness. Following subsequent outpatient physical therapy treatment in April 1991, the Veteran was diagnosed as having weakness of the left upper extremity. He was prescribed a course of physical therapy for this diagnosis. The post-service evidence also does not support granting the Veteran’s service connection claim for a disability manifested by left-sided weakness. A review of the Veteran’s voluminous post-service VA outpatient treatment records shows that, although he complained of and sought treatment for reported left-sided weakness since his service separation, repeated neurological examinations showed no weakness. In an October 2018 opinion, a VA clinician opined that it was less likely than not that the Veteran’s claimed disability due to left-sided weakness is related to active service or any incident of service, including as a residual of being struck by lightning while on a period of ACDUTRA in May 1990. The rationale for this opinion was a review of the Veteran’s claims file. The rationale also was that there was no objective evidence on multiple orthopedic examinations conducted in October 2018 that the Veteran experienced any current disability due to his claimed left-sided weakness which is attributable to active service or any incident of service, including as a a residual of being struck by lightning while on a period of ACDUTRA in May 1990. The VA clinician stated that “multiple specialty evaluations and multiple neurology evaluations in 1990 and 1991 found no objective evidence of left sided weakness and 01/22/91 physical therapy evaluation noted subjective left sided weakness reported by the Veteran but no objective findings of left sided weakness during physical therapy.” This clinician also stated that “04/04/91 neurology evaluation reported Veteran having extensive work up by multiple specialists with normal neurological exams, and neurology had nothing more to offer.” A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a disability manifested by left-sided weakness at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no indication – other than the Veteran’s lay assertions – that he experiences any current disability due to his claimed disability manifested by left-sided weakness which is attributable to active service or any incident of service, including as a residual of being struck by lightning while on a period of ACDUTRA in May 1990. Further, the October 2018 VA clinician specifically opined that the Veteran’s claimed disability manifested by left-sided weakness is not related to active service. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for a disability manifested by left-sided weakness. In summary, the Board finds that service connection for a disability manifested by left-sided weakness is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left hand disability, a left knee disability, including as due to a service-connected right knee disability, and for hypertension, including as due to a service-connected right knee disability, is remanded. The Veteran contends that his service-connected left hand disability, left knee disability, and hypertension are related to active service. He also contends that he incurred each of these disabilities as a residual of being struck by lightning while on a period of ACDUTRA in May 1990. He alternatively contends that a service-connected right knee disability caused or aggravated (permanently worsened) his left knee disability and his hypertension. The Board acknowledges that these claims were remanded to the AOJ previously. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding these claims again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). With respect to these claims, the Board notes that a VA clinician opined that they were not related to active service in a series of opinions provided on October 29, 2018. A review of these etiology opinions shows that they are unlikely to survive judicial review as the rationale for each of these opinion was that there was “no evidence” in the Veteran’s service treatment records showing a link between each of these claimed disabilities and active service. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In Stegall, 11 Vet. App. at 268, the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to recertify these issues to the Board in May 2019 with complying with the prior remand directives. Given this error, another remand is required. The matters are REMANDED for the following action: 1. Send the claims file to a clinician for opinions concerning the etiological relationship between the Veteran’s left knee disability, left hand disability, and hypertension, if possible to a clinician other than the clinician who provided opinions on October 29, 2018. The clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a left knee disability is related to active service or any incident of service, including as a residual of being struck by lightning while on a period of ACDUTRA in May 1990. The clinician next is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s service-connected right knee disability caused or aggravated (permanently worsened) a left knee disability. The clinician also is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a left hand disability is related to active service or any incident of service, including as a residual of being struck by lightning while on a period of ACDUTRA in May 1990. The clinician next is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hypertension is related to active service, including as a residual of being struck by lightning while on a period of ACDUTRA in May 1990. The clinician finally is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected right knee disability caused or aggravated (permanently worsened) the Veteran’s hypertension. A complete rationale must be provided for any opinion(s) expressed. The clinician is advised that the Veteran experienced electrical shock, status-post lightning strike, while on active service in May 1990 and that the absence of contemporaneous records documenting complaints of or treatment for a left knee disability, a left hand disability, or for hypertension, alone, is insufficient rationale for a medical nexus opinion. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.