Citation Nr: 20052927 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 19-36 237 DATE: August 10, 2020 ORDER Entitlement to service connection for degenerative arthritis of the right-hand is denied. Entitlement to service connection for pain, numbness, and tingling for the right upper extremity (“right upper extremity”) disability is denied. Entitlement to service connection for pain, numbness, and tingling for the left upper extremity (“left upper extremity”) disability is denied. FINDINGS OF FACT 1. The Veteran’s a right-hand disability is not related to service. 2. The Veteran’s right upper extremity disability is not related to service. 3. The Veteran’s left upper extremity disability is not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right-hand disability are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for entitlement to service connection for a right upper extremity disability are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a left upper extremity disability are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1964 to May 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (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, 1167 (Fed. Cir. 2004); VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for a right-hand disability The Veteran claims his right-hand disability is related to an in-service injury. Specifically, he alleges he was electrocuted and suffered burns to his right hand. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran’s current disability is related to service. Therefore, service connection is not warranted. Turning to the evidence, service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a right-hand disability. In January 1968 he was treated for second to third degree burns to the right index finger. The finger was debrided without difficulty. On the March 1968 separation examination, the Veteran indicated he was in good health and no past or present joint pain was noted. The Veteran’s skin and neurologic functioning were normal on clinical examination. Post service, in March 2016 private treatment records reflected right hand complaints. The Veteran reported painful right-hand symptoms related to electrical shock/burns experienced in service. In a March 2018 statement, the Veteran indicated while completing his assigned duties on an aircraft he was electrocuted and suffered burns to his hands. His supervisor took him to the first aid station after the incident. A May 2018 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with bilateral degenerative arthritis, bilateral upper extremity ulnar neuropathy, and right carpal tunnel syndrome. He reported the condition began in 1968. The examiner opined the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. For the rationale the examiner found, per ‘A Study of Carpal Tunnel Injury Following Electrical Trauma.’ M. Stephen Morse, Ph.D. Engineering in Medicine and Biology Society, 2000. Proceedings of the 22nd Annual International Conference of the IEEE. “Carpal Tunnel Syndrome (CTS) is sometimes diagnosed post electrical injury. Unfortunately, there is no clear causal connection between electric shock and the electro-diagnostic indications of CTS.” Medical records in VBMS are silent for some 40 years, as the veteran reports self-treatment with OTC pain medications. Therefore, it is less likely than not (less than 50% probability) that the Veteran’s right-hand condition was incurred in or caused by (the) injury and burns to right hand during service. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is not related to service. In this regard, the Board finds the most probative evidence of record is the May 2018 VA examination. The VA opinion is competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale. The VA examiner interviewed and examined the Veteran, was informed of the pertinent evidence, reviewed the Veteran’s claims file, and fully articulated the opinion in the report. The examiner found the disability was not related to service, noting there is no clear causal connection between electric shock and the electro-diagnostic indications of carpal tunnel syndrome. There are no competent conflicting medical opinions and the VA opinion is supported by the post service records which fail to demonstrate ongoing pain or treatment for a right-hand disability until March 2016. The Board finds the failure to mention the alleged ongoing right-hand pain due to an alleged in-service injury is evidence against the allegations. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded). Therefore, the May 2018 VA opinion is the most probative evidence. Likewise, the Board finds the Veteran’s ongoing in-service right-hand pain allegation is in direct conflict with the contemporaneous service treatment records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). During the May 2018 VA examination the Veteran reported an onset of 1968, however the record is devoid of any in-service treatment. Although, there is treatment for the right index finger, there are no STRs reflecting complaints or treatment for a right-hand disability and the March 1968 service separation examination did not identify any hand complaints or pathology. As such, any in-service injury to the finger appears to have been acute and transitory and resolved prior to discharge. The memory fades and becomes more imperfect with the passage of time, while the documented reports more accurately reflect what actually happened. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). Therefore, the Board finds the contemporaneous medical records more credible that the Veteran’s later assertion of an issue since service. The Board acknowledges that the evidence established that an event or injury occurred in service. As described above, the STRs document an isolated occurrence of what appears to be burns to the right index finger. However, as noted above there are no other STRs related to the right hand and the service separation examination did not identify any hand complaints or pathology. As such, any in-service injury to the knees appears to have been acute and transitory and resolved prior to discharge. There are no competent and credible records demonstrating a link between service and the disability other than the Veteran’s lay statements. However, these statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). As such, as a lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address. Accordingly, service connection for a right-hand disability is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102. 2. Entitlement to service connection for a right upper extremity disability 3. Entitlement to service connection for a left upper extremity disability The Veteran claims his bilateral upper extremity neuropathy is related to an in-service electrocution. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran’s current disability is related to service. Therefore, service connection is not warranted. STRs do not reflect any symptoms, diagnosis, or treatment for bilateral upper extremity neuropathy. On the March 1968 separation examination, the Veteran indicated he was in good health with no complaints of carpal tunnel, tingling or neuropathy in the upper extremity. In January 2017 private treatment records, an assessment revealed diagnoses of right upper limb carpal tunnel syndrome; bilateral ulnar neuropathy; and idopathic peripheral neuropathy. An April 2017 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with bilateral upper extremity ulnar neuropathy and right carpal tunnel syndrome. He reported the symptoms began in 1980. The numbness, tingling, and pain could be daily or weekly, however, the condition has lasted for 20 years and is worst now. The examiner opined the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. For the rationale the examiner found the “nerve condition was not due to or the result of the 2nd and 3rd degree burns to his hands on 01-17-1968 during service. There was no evidence of nerve damage found associated with the injury. In addition, they are different diagnoses with distinct etiologies.” In November 2017, K.A., M.D., the Veteran’s private doctor for over 10 years, wrote a favorable medical opinion. The doctor indicated, since the electrical shock, the Veteran has experienced neuropathic symptoms of pain, numbness and tingling, and decreased sensation of the bilateral upper extremities. It was opined the symptoms the Veteran experienced and the pathology evidenced in his EMG/NCS tests are as likely as not due to the electrical shock he sustained in service. In April 2018, K.A., M.D., the Veteran’s private doctor for over 11 years, wrote a favorable medical opinion. The doctor indicated, since the electrical shock, the Veteran has experienced neuropathic symptoms of pain, numbness and tingling, and decreased sensation of the bilateral upper extremities. It was opined the symptoms the Veteran experienced and the pathology evidenced in his EMG/NCS could be due to the electrical burn accident the Veteran sustained in service. The letter also noted “the nerve damage he has today, could have resulted from the same etiology.” In November 2018 private treatment records the Veteran complained of a lack of sensation in both arms and hands. He reported experiencing the symptoms after being electrocuted while working on airplanes in 1966 during service. He suffered severe burns mostly to his right hand. In an April 2019 private electromyography and nerve conduction study, an impression revealed evidence of brachial plexopathy on upper extremity nerve testing, suspected as due to electrocution. There is no evidence of generalized neuropathy and no significant compressive lesion on MRI that would explain the symptoms. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is not related to service. In this regard, the Board finds that the April 2017 VA opinion, discussed above, is the most probative evidence of record. The VA opinion is competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale. The VA examiner interviewed and examined the Veteran, was informed of the pertinent evidence, reviewed the Veteran’s claims file, and fully articulated the opinion in the report. The examiner found the disability was not related to service, noting the nerve condition was not due to or the result of the 2nd and 3rd degree burns to his hands during service as they are different diagnoses with distinct etiologies. To the contrary in November 2017 and April 2018 K.A., M.D. provided two opinions finding the Veteran’s neuropathy is related to service. For the November 2017 report, the doctor opined the symptoms the Veteran experienced and the pathology evidenced in his EMG/NCS tests are as likely as not due to the electrical shock he sustained in service. However, the factual evidence does support ongoing symptoms of neuropathy since service as demonstrated by the Veteran’s April 2017 VA examination self-report of an onset in 1980. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual basis is of no probative value). Additionally, the doctor failed to provide a rationale. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). For the April 2018 opinion the doctor opined the symptoms and the pathology evidenced in his EMG/NCS could be due to the electrical burn accident the Veteran sustained in service. The letter also noted “the nerve damage he has today, could have resulted from the same etiology.” In this regard, the Board finds the opinion is speculative and not sufficiently definitive. The doctor notes the symptoms and pathology could have resulted from an electrical burn accident, specifically noting nerve damage he has today, could have resulted from the same etiology. The opinion appears to be tentative, with the use of words such as “could be” and provides no rationale. The April 2018 opinion also inconclusive, stating that the current disability “could” be due to the in-service shock. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor’s opinion that “it is possible” and “it is within the realm of medical possibility” too speculative to establish medical nexus). It is unclear why K.A. retreated from the certainty of the earlier opinion, but this undermines the probative value of the opinions substantially. Likewise, the Board acknowledges the April 2019 private electromyography and nerve conduction study, indicating an impression revealed evidence of brachial plexopathy on upper extremity nerve testing, suspected as due to electrocution. However, the “suspected” language is speculative. Therefore, the April 2017 VA opinion is the most probative evidence. The Board has a duty to address the credibility and weight to be given to the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As noted above the Veterans onset account of the symptoms have been inconsistent. As noted above, during the April 2017 VA examination he indicated the symptoms began in 1980. However, he reported ongoing symptoms since service to his private doctors. The ongoing reports are in direct conflict with the contemporaneous service treatment records as well as the April 2017 VA examination statement. See Buchanan, 451 F.3d at 1336. The record is devoid of any in-service treatment, complaints, or pathology. Therefore, the Board finds the contemporaneous medical records more credible that the Veteran’s later assertion of an issue since service. Accordingly, service connection for a bilateral upper extremity disability is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102. J. B. Freeman Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.