Citation Nr: 21071133 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 15-24 924 DATE: November 29, 2021 ORDER Entitlement to service connection for left upper extremity neuropathy, to include as secondary to his left shoulder disability is denied. REMANDED Entitlement to an evaluation in excess of 20 percent prior to October 9, 2019, and a rating in excess of 30 percent thereafter, for left shoulder impingement syndrome is remanded. FINDING OF FACT The preponderance of the evidence weighs against finding the Veteran's claimed left upper extremity neuropathy first manifested during service or to a compensable degree within one year after service; is otherwise related to an in-service event, disease, or injury; and was caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for left upper extremity neuropathy, to include as secondary to a left shoulder disability, are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to September 1979. These matters come before the Board of Veterans' Appeals (Board) following August 2018 and February 2021 Board remands. This matter was originally on appeal from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may also be awarded on secondary basis for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Allen v. Brown, 7 Vet. App. 439, 449 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). 1. Entitlement to service connection for left upper extremity neuropathy, to include as secondary to his left shoulder disability The Veteran contends that he is entitled to service connection for left upper extremity neuropathy due to service. In a January 1977 service treatment record (STR) the examiner noted the Veteran complained of occasional shooting pains down the left arm when reporting complaints of pain in the left shoulder. An August 1979 Report of Medical Examination separation report in the Veteran's STRs indicate the examiner found the Veteran's upper extremities and neurologic system to be normal. The Veteran's STRs include a notation of a profile for bursitis of the left shoulder but do not mention neuropathy. In the Veteran's separation examination Report of Medical History, the Veteran reported complications with the left shoulder involving pain, loss of strength, and loss of movement. The Veteran reported experiencing swollen/painful joints, arthritis/rheumatism/bursitis, and painful or "trick" shoulder/elbow. However, the Veteran reported he did not experience neuritis. In January 1980 the Veteran was afforded a VA examination. The examiner noted the Veteran reported that he has a feeling of numbness and sometimes electricity going through the forearm. The examiner noted the "injury suggests the possibility of a slight peripheral neuritis which is receding." The examiner noted as diagnoses, sebaceous cyst, status post laceration of the right forearm in the inner upper aspect with feeling of numbness and electricity, suggestive of a possibility of superficial neuritis, and periarthritis or bursitis of the left shoulder, with limitation of motion. A December 1996 VA treatment note indicates the Veteran stated he noticed numbness in his left shoulder and that he also has increasing weakness in his left arm. A May 2001 VA treatment note indicates the Veteran complained of numbness of the left arm, and pain in his left shoulder. A March 2011 shoulder VA examination did not indicate complaints of numbness or tingling. An August 2013 VA treatment note indicates the Veteran complained of occasional numbness in his left upper extremity which is positional in nature and quickly resolves with change in position. In an October 2019 VA examination report, the examiner noted the Veteran reported symptoms started approximately eight years ago and have continued to progress. The examiner noted initial symptoms began as periodic numbness down his left arm. The examiner opined the Veteran's left upper extremity neuropathy was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran had no issues related to the claimed left upper extremity neuropathy prior to military service. Onset of the condition was during service, and documented in the service medical records. There is evidence of current, chronic, and continuous treatment and care. The examiner further stated that a nexus has been established. The Veteran had a documented positive tinels at the cubital tunnel in June 2017. During the examination there was pain and decreased muscle strength in the left elbow. However, in July 2020, a clarification was requested as at the examination the Veteran had reported in history that his first symptoms were approximately eight years prior to the examination, which would be 32 years after his release from active duty service. A clarification was requested to explain the over 30 years span between service and first symptoms related to the Veteran's left upper extremity neuropathy. The examiner stated "please disregard positive opinion as this was made in error. Please disregard previous rationale as this was also made in error." The examiner found that the Veteran's left upper extremity neuropathy was less likely than not incurred in or caused by his left shoulder disability during service. Subsequent to this opinion, the examiner provided another addendum opinion that the Veteran's left upper extremity neuropathy was not aggravated by his left shoulder disability. However, the examiner did not provide a nexus opinion regarding direct service connection aside from noting that the prior opinion should be disregarded. Moreover, the examiner's nexus opinion for secondary service connection is based on the absence of any documentation in the Veteran's service treatment records at the time of his separation from service. As such, in February 2021 the Board remanded the Veteran's claim for a new opinion addressing the etiology of the Veteran's left upper extremity neuropathy. Following the February 2021 Board remand, in April 2021 a new VA opinion was provided. The examiner opined the Veteran's claimed left upper extremity neuropathy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated, there is no evidence of ulnar neuropathy or other upper extremity neuropathy while in service, and shoulder injuries do not cause neuropathies except in rare circumstances, which are discussed below. The separation exam was negative for neuropathy. These exams are notably thorough and include a history and physical, and the Veteran answered the RMH, which was specifically negative for neuritis. The Veteran does not have objective findings of ulnar neuropathy. The 2019 DBQ notes normal ulnar nerve function. The ulnar nerve does not innervate flexion or extension of the elbow. This is a neuro-anatomical fact. The examiner additionally stated, "I cannot explain the findings of 4/5 for elbow flexion and extension noted by the examiner, but it is not due to ulnar neuropathy, there is no other objective evidence of ulnar neuropathy." The examiner maintained that the most likely source of impingement of the ulnar nerve is at the elbow (medial epicondyle/funny bone) causing cubital tunnel syndrome (CuTS). The Veteran's shoulder conditions, including status post-arthroscopy, DJD, rotator cuff lesions and impingement syndrome would not and do not cause neuropathies of the upper extremity. The only shoulder injuries that would cause direct injury would be traumatic injury of the collarbone injuring branches of the brachial plexus or total dislocation of the shoulder with associated neurologic injury of the brachial plexus. The examiner also stated this is clearly not evident, and the Veteran's current conditions would not have anatomical relationships with the nerves to influence them either as to cause or aggravation. Even if the ulnar palsy is conceded, it is less likely than not due to or incurred in the Veteran's shoulder injury. This is almost unequivocal, based on the neuroanatomy of the shoulder and the arm, the ulnar nerve in particular. The examiner stated that this is fourth-year med student level anatomy and pathophysiology. The examiner opined it is less likely than not that the Veteran's claimed left upper extremity neuropathy is due to or incurred in events in service. The examiner opined that it is less likely than not due to or aggravated by the Veteran's left shoulder conditions. The Veteran does not meet the objective requirements to substantiate the diagnosis of ulnar nerve peripheral neuropathy/CuTS. Furthermore, the Veteran had normal left upper extremity EMG's in 1996 and December 9, 2013. However, clinically speaking, the diagnosis can be determined without objective findings as treatment is often rendered based strictly on symptomatology. Nonetheless, it would bear no relationship to service, primary or secondary, and has not been aggravated beyond its natural course due to any cause, including the Veteran's shoulder conditions. The absence of objective findings rules against aggravation. The Board concludes that the preponderance of the evidence is against finding that the Veteran's current left upper extremity neuropathy condition is due to service or proximately due to, the result of, or aggravated beyond its natural progression by his service-connected left shoulder disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Board finds that the April 2021 VA opinion is adequate and dispositive of the nexus question presented in this case because it is based on a review of the file, consideration of the Veteran's contentions, and supported by a rationale based on sound medical principles. Although the Veteran has reported symptoms of numbness and shooting pain, the medical evidence weighs against the Veteran's current condition being related to service. In his separation medical reports, the Veteran reported a shoulder condition but denied neuritis. The January 1980 examiner noted "injury suggests the possibility of a slight peripheral neuritis which is receding." The Veteran stated at his October 2019 VA examination that his left upper extremity neuropathy symptoms started approximately eight years ago and have continued to progress, which would be approximately 32 years after the Veteran separated from service. As aforementioned, the April 2021 VA examiner stated there is no evidence of ulnar neuropathy or other upper extremity neuropathy while in service. Additionally, the Veteran does not have objective findings of ulnar neuropathy, the 2019 DBQ notes normal ulnar nerve function. The most likely source of impingement of the ulnar nerve is at the elbow (medial epicondyle/funny bone) causing cubital tunnel syndrome. In regard to whether the Veteran's service-connected shoulder condition caused or aggravated the Veteran's current left upper extremity neuropathy, the examiner stated the Veteran's shoulder conditions, including status post-arthroscopy, DJD, rotator cuff lesions and impingement syndrome would not and do not cause neuropathies. Additionally, the Veteran had normal left upper extremity EMG's in 1996 and December 9, 2013. The Veteran believes his current left upper extremity neuropathy is due to service, but he has not been shown to have the competence necessary to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the relationship between the musculoskeletal system and the nerves of the extremities. Therefore, it is outside the competence of the Veteran because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the April 2021 VA examiner's opinion. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for left upper extremity neuropathy and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Entitlement to an evaluation in excess of 20 percent prior to October 9, 2019, and a rating in excess of 30 percent thereafter, for left shoulder impingement syndrome is remanded. Regrettably, the Board finds that further development is required with respect to the Veteran's increased rating claim for the Veteran's left shoulder disability. As stated above, the Board remanded this matter in August 2018 and February 2021 for further development. However, remand is again needed to comply with the February 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the February 2021 Board remand, the Board requested a retrospective opinion for the period of December 29, 2010 to October 8, 2019 (excepting the period from September 10, 2013 to December 31, 2013). Specifically, the Board requested the examiner provide a retrospective opinion regarding the Veteran's left shoulder range of motion and level of functional impairment. The Board advised that "If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of the general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or expertise." Although the VA examiner provided VA examination reports for Veteran's left shoulder disability in April 2021, the VA examiner failed to provide the retrospective opinion as requested as to the period of December 29, 2010 to October 8, 2019 (excepting the period from September 10, 2013 to December 31, 2013). The examiner stated in the opinion identifying the requested opinion, I have reviewed the c-file and conflicting medical evidence as requested. He sustained a documented injury and his loss of left shoulder function was also notated on his discharge medical exam. This alone is evidence that his condition is service related. Additionally, his condition has worsened over time, which would be expected. He has required surgery and continues with functional loss. It is as like as likely as not that the Veteran's shoulder injury during active duty Army service is related to his current shoulder condition. Furthermore, the examiner was directed to assess the current severity of the Veteran's service-connected left shoulder disability. The April 2021 examination reports include an assessment of the Veteran's current severity of his left shoulder disability but it is not indicated that the range of motions indicated in the examination represent a retrospective opinion regarding the Veteran's range of motion during the specified period. In addition, the VA examiner failed to give a rationale as to why such opinions could not be provided. As such a remand is warranted to obtain the requested retrospective opinions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain all VA treatment records not currently associated with the claims file. 2. With respect to the Veteran's left shoulder disability, request a retrospective opinion from a qualified medical professional. The examiner is asked to the extent possible to provide a retrospective opinion regarding the Veteran's left shoulder range of motion and level of functional impairment for the period of December 29, 2010 to October 8, 2019 (excepting the period from September 10, 2013 to December 31, 2013). In providing this retrospective opinion, the examiner should consider all relevant, procurable data in the claims file, including the Veteran's lay contentions and/or statements made during prior examinations for the left shoulder, as well as any other VA and non-VA treatment records. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Daley, 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.