Citation Nr: 20022416 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 18-51 744 DATE: March 31, 2020 ORDER Entitlement to service connection for a right arm disability manifesting in numbness, tingling, and loss of strength is denied. REMAND Entitlement to a disability rating in excess of 20 percent for cervical spine degenerative disc disease is remanded. FINDING OF FACT The Veteran is not diagnosed with a right arm disability manifesting in numbness, tingling, and loss of strength. CONCLUSION OF LAW The criteria for entitlement to service connection for a right arm disability manifesting in numbness, tingling, and loss of strength have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 until November 1997. This case comes before the Board of Veterans’ Appeals from a July 2017 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran timely appealed and the matter is ready for adjudication. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Until recently, pain alone, without a diagnosis or identifiable underlying malady or condition, did not in and of itself constitute a disability for which service connection could be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). However, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term “disability” as used in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and held that pain alone can serve as a functional impairment and therefore qualify as a disability. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit also limited its holding, stating, “We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain... [t]o establish the presence of a disability, a veteran will need to show that [his or her] pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. 1. Entitlement to service connection for a right arm disability manifesting in numbness, tingling, and loss of strength. The Veteran contends that he has a right arm disability manifesting in numbness, tingling, and loss of strength. However, after a review of the medical evidence, the Board finds that the Veteran is neither diagnosed with such a disability nor exhibits such symptoms. The Veteran’s post-service treatment records show that he receives treatment for numbness in his left thumb and index finger, and not his right arm. The Veteran participated in a June 2017 VA examination. Therein, the examiner opined that “there is no objective evidence to support a current numbness tingling in right arm and hand loss of strength condition at this time.” The examiner noted that during the interview the Veteran stated that the condition “is actually on the left arm, not the right . . . he presents today with complaints of numbness and tingling on the left thumb and index finger.” Based upon this evidence, the Board finds that the preponderance of the evidence is against the claim as Shedden element one is not met. There is simply no evidence of a diagnosis of a right arm disability. Indeed, the June 2017 VA examination and post-service treatment records show that the Veteran is seeking treatment for left thumb and index finger numbness and not any right arm numbness. Indeed, the Veteran told his June 2017 VA examiner that his numbness and tingling manifested on the left arm and not the right. The Board finds the June 2017 VA examination and post-service treatment records probative as they are based on a thorough examination of the Veteran and are based on the Veteran’s observations of his own disability picture. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For the same reasons, the Veteran does not meet the Saunders test as he does not have any right arm disability functionally impairing his earning capacity. Simply put, the medical evidence shows that the Veteran does not have any right arm numbness, tingling, or loss of strength. All of his reported symptoms manifest on his left side, specifically, his left thumb and index finger. The Board notes that the Veteran is currently service-connected for left upper extremity radiculopathy. Consequently, the Board concludes that the Veteran does not have a right arm disability for which service connection can be granted. A preponderance of the evidence is also against a finding that the Veteran currently has a diagnosed right arm disability that causes functional impairment that would be considered a disability for compensation purposes. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran has not met the current disability requirements with regard to his claim for entitlement to service connection for a right arm disability. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS AND BASES FOR REMAND When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is considered adequate “where it is based on consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 2. Entitlement to a disability rating in excess of 20 percent for cervical spine degenerative disc disease is remanded. The Veteran participated in VA examinations in January 2017 and June 2017. The Board finds these examinations inadequate. At both examinations, the Veteran reported “frequent flare-ups” resulting in “soreness and . . . aches.” The Veteran also stated that he has issues turning his neck when it flares up. However, the VA examiner did not estimate the loss of function during flare-ups. In situations where an examination is not conducted during a flare-up, the VA examiner should still estimate the Veteran’s additional functional impairment, in terms of additional range of motion loss, based on the Veteran’s descriptions of his additional loss of function during flare-ups and information gleaned from his medical records. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the Board finds that remand is required to obtain a new VA examination. If the new examination is not conducted during a flare-up, the VA examiner should be asked to estimate functional loss during flare-ups based on the Veteran’s descriptions of his additional loss of function during flare-ups and information gleaned from his medical records. The matters are REMANDED for the following action: 1. Obtain any updated VA or private treatment records which are not already associated with the claims file. Any negative reply should be properly included in the claims file. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to address the current severity of his service-connected cervical spine disability. Review of the claims file, including a copy of this remand, must be noted. Range of motion measurements must be included in both active and passive motion in weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should clearly be noted. The examiner must also asses the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up at the time of the examination, the examiner must still provide an estimated assessment, using lay observations elicited from the Veteran and as gleaned from the Veteran’s medical record in the claims file. If it is not possible to provide any of the requested information, the examiner must explain why this is so. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale indicating that the Veteran is not having a flare-up at the time of the examination, without more explanation, will not be deemed adequate. In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms are and when they began. If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, Associate 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.