Citation Nr: 21064963 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 15-42 601 DATE: October 22, 2021 ORDER Service connection for an arm disability, to include conditions of the elbow and forearm, is denied. REMANDED Service connection for a bilateral shoulder disability is remanded. Service connection for a cervical spine disability (neck disability) is remanded. Entitlement to a temporary total rating based upon the need for post-surgical convalescence following right shoulder surgery is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of arm disability, to include a condition of elbow and forearm. CONCLUSIONS OF LAW The criteria for service connection for an arm disability, to include conditions of the elbow and forearm, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1976 to February 1979. This matter is before the Board of Veterans' Appeal (Board) on appeal from a June 2011 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in October 2018 and April 2021 and the matter has been returned for appellate consideration. As discussed below, the Board finds the AOJ did not comply substantially with the April 2021 directives for certain issues, and another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). For the issue decided herein, however, the Board does find substantial compliance with its remand directives. The appeal originally included the issue of service connection for a disability of the right shoulder, arm, and neck. Essentially, combining the disabilities of three distinct parts of the body into one disability. For the sake of clarity, however, the Board has recharacterized the Veteran's issue of service connection for a right shoulder, neck, and arm disability, as service connection for a right shoulder, neck, and arm disabilities, individually. Service Connection Service connection for an arm disability. The Veteran asserts that service connection is warranted for an arm disability. The initial threshold question for the Board is whether the Veteran has a current disability, and if so, whether that disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of an arm disability, to include any disability of the elbow and forearm and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky, 26 Vet. App. at 294 (2013); McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303 (a), (d). Review of the record indicates, there is no evidence of record which reflects a current diagnosis of an arm disability. The Veteran was afforded a June 2021 VA elbow and forearm conditions examination to determine the nature of his claimed arm condition. The VA examiner found that the Veteran did not suffer from an arm disability, to include any conditions of the elbow and forearm. Additionally, the Veteran did not report painful motion of his elbow, or forearm. The Board this examination adequate (as it responded directly to the questions posed by the Board in its remand, contained a well-reasoned rationale, and was based on a thorough review of the record), and it is probative evidence against a finding of a current an arm disability. The remaining evidence, to include VA and private treatment records, similarly fails to show that the Veteran is currently diagnosed with an arm disability. While the Board recognizes that pain alone can constitute a disability for VA purposes when such pain amounts to functional impairment of earning capacity; however, the evidence of record does not show that pain related to his arms amounts to a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Veteran has not alleged any reports of arm pain that amounts to a functional impairment of earning capacity. While the Veteran believes that he is diagnosed with an arm disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence provided by the June 2021 VA examiner. Further, any statements of the Veteran's regarding his symptoms alone are not sufficient to show an arm disability for VA benefits purposes. Thus, the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran currently has an arm disability. As such, service connection is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As noted above, entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability, and in absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In sum, the Veteran has not satisfied the necessary element of a present disability with respect to an arm disability, and thus, further discussion of the in-service incurrence or nexus elements (or of secondary service connection consideration) is unnecessary. The preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for an arm disability. REASONS FOR REMAND 1. Service connection for a bilateral shoulder disability is remanded. 2. Service connection for a cervical spine disability (neck disability) is remanded. The Veteran is seeking service connection for bilateral shoulder and neck disabilities. The Veteran contends that he was injured during basic training, when he fell backwards while in snake formation. As noted above, in April 2021, the Board remanded the issues of entitlement to service connection for cervical spine and bilateral shoulder disabilities. The RO was instructed to schedule the Veteran for additional VA examinations to determine the nature and etiology of his claimed disabilities. As the April 2021 Board decision found the October 2019 VA medical opinion to be inadequate due to relying on the absence of in-service complaints or treatment of the claimed disabilities. To that end, the June 2021 VA examinations were provided. However, the VA examiner's medical opinions related to the Veteran's neck and shoulder disabilities once again relied on the absence of in-service complaints and treatments of such. Nor did the VA examiner address or consider the Veteran's statement of an in-service injury during basic training. As such, the Board finds the June 2021 medical opinions related to theory of direct service connection as it relates to the Veteran's shoulder and neck disabilities to be inadequate. As the June 2021 VA medical opinion did not adequately address the etiology of the Veteran's cervical spine and bilateral shoulder disabilities as requested in the April 2021 remand, the Board finds a remand is necessary to ensure compliance with the remand's directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to a temporary total rating based upon the need for post-surgical convalescence following right shoulder surgery is remanded. 4. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status is remanded. The Veteran also contends that he is entitled to a temporary total disability rating under 38 C.F.R. § 4.30 based upon the need for post-surgical convalescence following right shoulder surgery. He finally contends that he is entitled to SMC based on the need for the regular aid and attendance of another person or housebound status. He specifically contends that he is entitled to a temporary total disability rating because his right shoulder surgery was for a service-connected disability. He also contends that he requires the regular aid and attendance of another person or is homebound because of his right shoulder disability. Because adjudication of the service connection claim for a right shoulder and neck disability likely will impact adjudication of the temporary total disability rating claim and SMC claim, the Board finds that all these claims are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, adjudication of the temporary total disability rating claim and SMC claim must be deferred. The matters are REMANDED for the following action: Obtain an opinion as to whether the Veteran's bilateral shoulder and neck conditions are related to his active service. Whether an examination is needed prior to rendering this opinion is left to the discretion of the examiner. Regardless of whether an examination is performed, the examiner is to state: (a) Whether it is at least as likely as not that the Veteran's current bilateral shoulder disability is related to his active service. (b) Whether it is at least as likely as not that the Veteran's current neck disability is related to his active service. The examiner must specifically note and discuss the Veteran's contention that he was injured during basic training while in snake formation. The examiner cannot base his/her opinion solely on the absence of in-service complaints, treatment, or diagnosis, and without consideration of the Veteran's lay statements. A complete rationale for all requested opinions must be provided. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.