Citation Nr: 21003154 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-18 737 DATE: January 19, 2021 ORDER Entitlement to service connection for a right arm condition, to include as secondary to service-connected cervical spine condition or service-connected thoracic and lumbosacral strain with degenerative arthritis, is denied. Entitlement to service connection for a left arm condition, to include as secondary to service-connected cervical spine condition or service-connected thoracic and lumbosacral strain with degenerative arthritis, is denied. FINDINGS OF FACT 1. The competent, probative evidence of record fails to relate a right arm condition to service or a service-connected disability. 2. The competent, probative evidence of record fails to relate a left arm condition to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right arm condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for a left arm condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to November 1987, from December 1989 to April 1992, and from October 1992 to September 1994. In March 2018, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2018 and April 2020, the Board remanded this appeal for further development. The requested actions have been completed and the appeal is once again before the Board for adjudication. Service Connection 1. Right and left arm conditions The Veteran is seeking entitlement to service connection for right and left arm conditions that she believes are due to or the result of her service connected lumbar and cervical spine conditions. Specifically, she states her arms are “1/2 worthless” and she experiences tingling, numbness, and sometimes no sensation down both arms and into her hands. See September 2019 Statement in Support of Claim. 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 between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal as the preponderance of the evidence weighs against a finding of a relationship between the Veteran’s claimed disorders and any service-connected disability. In deciding a claim for service connection, all theories of entitlement must be considered. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). Here, the Veteran has consistently stated that her right and left arm conditions are due to or aggravated by her service-connected lumbar and cervical spine disabilities, which resulted from traumatic injuries during service. She does not contend, and the evidence does not suggest, that the right and left arm conditions are due to or the result of her active duty on a direct incurrence basis. See November 2012 VA Form 21-526b; see also July 2014 Notice of Disagreement; see also March 2018 Hearing Transcript. Therefore, the only remaining theory of entitlement is secondary service connection. However, assuming arguendo that she did claim it was related to service, this part of the claim fails as there is no nexus evidence that would demonstrate that there is a connection between the current right and left arm conditions and service. Specifically, neither of these disorders were noted in service and there has been no showing that the diagnosed conditions are attributable to her military service on a direct basis. See 38 C.F.R. § 3.303. See generally Service Treatment Records. Concerning the remaining theory of entitlement, secondary service connection, the Board concludes that, while the Veteran has current diagnoses of right and left carpal tunnel syndrome, left ulnar neuropathy, left shoulder strain, and right and left lateral epicondylitis (see October 2019 Peripheral Nerve Conditions, Shoulder and Arm Conditions, and Elbow and Forearm Conditions Disability Benefits Questionnaires (DBQs), respectively), the preponderance of the evidence is against finding that the Veteran’s disorders are proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). As an initial matter, the Board also notes the Veteran has already established her entitlement to service connection for right and left upper extremity radiculopathy, associated with her cervical spine disability. Following the June 2018 Board remand, the RO granted service connection for these disabilities in a July 2018 rating decision and assigned an initial rating of 40 percent. Therefore, the Board will not discuss any of the evidence pertaining to radiculopathy. Additionally, the record contains prior final rating decisions denying service connection for a right shoulder disorder. See February 2000 and June 2009 Rating Decisions. The Veteran has not filed a petition to reopen this claim. Moreover, the Board finds that she very clearly has been referring to problems with her arms and extending down the right and left extremities, as opposed to describing problems with her shoulders. As such, further discussion pertaining to the right shoulder will also not be undertaken. Should the Veteran wish to again pursue service connection for a right shoulder condition, she is encouraged to file a petition to reopen the claim with the RO. Post-service VA and private treatment records reflect that the Veteran’s complaints of and treatment for her diagnosed disorders prior to and during the pendency of the appeal. However, no opinion was promulgated in these treatment records regarding the etiology of the Veteran’s right and left arm condition, to include whether they are due to or aggravated by the service-connected lumbar and/ or cervical spine disabilities. The Veteran underwent VA examinations pertaining to the lumbar spine in July 1992, April 1998, May 1998, July 1999, November 2006, October 2013, and June 2015. However, none of these VA examinations noted any evidence of upper extremity involvement in connection with the lumbar spine disability. Similarly, the October 2013 cervical spine examination only provided diagnoses of left and right upper extremity radiculopathy, disabilities for which service connection has already been established. In October 2019, the Veteran was scheduled for VA Peripheral Nerve Conditions, Shoulder and Arm Conditions, and Elbow and Forearm Conditions DBQs, in compliance with the prior June 2018 remand directives, which resulted in the above noted diagnoses. As to the matter of etiology of the diagnosed left arm conditions, the accompanying medical opinion, signed by the VA examiner in November 2019, determined that it is less likely than not the diagnosed left arm conditions were due to, caused by, or aggravated by the Veteran’s service connected disabilities. As rationale, the examiner noted that carpal tunnel syndrome is caused by nerve compression at the wrist, not the neck. Further, the left ulnar neuropathy is caused by compression at the elbow, not the neck. Neither the left carpal tunnel syndrome or left ulnar neuropathy are caused by the thoracic or lumbar conditions. As to the matter of etiology of the diagnosed right arm conditions, the accompanying medical opinion, signed by the VA examiner in November 2019, determined that it is less likely than not the diagnosed right arm conditions were due to, caused by, or aggravated by the Veteran’s service connected disabilities. As rationale, the examiner noted that carpal tunnel syndrome is caused by nerve compression at the wrist, not the neck. Further, the right carpal tunnel syndrome is not caused by the thoracic or lumbar conditions. In May 2020, an addendum opinion was obtained to address whether the diagnosed right and left epicondylitis was due to, caused by, or aggravated by the Veteran’s service connected disabilities since the November 2019 opinion failed to comment on that diagnosis. The VA examiner concluded it was less likely than not the diagnosed epicondylitis is due to, caused by, or aggravated by the service connected disabilities. As rationale, the VA examiner stated there is no competent medical evidence that the Veteran has a right or left arm condition, to include epicondylitis, that underwent an incremental increase in disability due to a cervical spine condition or thoracic or lumbosacral spine condition with degenerative arthritis. The examiner further explained that lateral epicondylitis is a focal condition where a tendon attaches to the bone and is independent of the spine. Further, the examiner stated: “The spine does not have the capacity to cause this condition directly, and the only indirect way the spine could influence this would be if there was a significant cervical spine condition that impaired function of the right upper extremity to cause an over-use of the wrist extensor muscles. This is contrary to what typically is seeing with a cervical spine condition. When we see a cervical spine condition affecting the upper extremity, it usually results in less, not more use, and therefore it is not felt the cervical, thoracic or lumbar spine conditions could have caused her right [or left] lateral epicondylitis.” See May 2020 Addendum Opinion. The Veteran also submitted an August 2014 statement from a Registered Nurse, L.L., in support of her claims. L.L. noted the Veteran’s inability to pick up and hold on to objects without dropping or spilling them. L.L. also confirmed reports of numbness, pain, and tingling in the arms and wrists. However, despite the fact L.L. clearly has medical training, she did not provide an opinion as to the etiology of the claimed disorders. Instead, she described the Veteran’s symptomology, which has been consistently repeated throughout the pendency of this appeal. Therefore, while the Board acknowledges that L.L. has medical training and expertise, and therefore finds her credible, the fact remains no opinions were promulgated in support of the pending appeal. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the Court has held that a nurse practitioner, having completed medical education and training, fits squarely into the requirement of 38 C.F.R.§ 3.159 (a)(1) as one competent to provide diagnoses, statements, or opinions). The Board has also considered the Veteran’s lay statements in support of her claims that her right and left shoulder conditions are due to or aggravated by the service-connected lumbar and cervical spine disabilities are the Veteran’s own statements. To this extent, the Board notes that she is competent to describe the symptoms associated with her disorders, such as numbness, tingling, and decreased sensation, which are readily observable by laypersons. Indeed, she has done so during her VA examinations, in her several written correspondences to VA, and in the course of treatment for the disorders during the appeal. However, as a lay person, the Veteran has not shown that she has specialized training sufficient to render such an opinion as to the etiology of her diagnosed disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of orthopedic and neurological disorders, such as is the case here, requires medical testing to diagnose and medical expertise to determine the etiology. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s opinions regarding the etiology of her claimed disorders are not competent medical evidence. The Board finds the opinions of the VA examiners, collectively, to be significantly more probative than the Veteran’s lay assertions as to etiology. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). (Continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.