Citation Nr: 21010791 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-34 363 DATE: February 25, 2021 REMAND Service connection for a disability of the right elbow is remanded. Service connection for a disability of the left elbow is remanded. Service connection for a disability of the right shoulder is remanded. Service connection for a disability of the left shoulder is remanded. Service connection for a disability of the right hand is remanded. Service connection for a disability of the left hand is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from June 1974 to April 1977 and from June 1977 to December 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 AOJ decision. The Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2019. In February 2020, the Board remanded the appeal in the attempt to obtain further medical evidence to support the Veteran’s claims. The Board notes that, in an October 2020 Appellant’s Brief, the representative phrased the issues on appeal to include a “skin” condition. The Veteran has described chemical exposures which he theorizes were absorbed in the skin and eventually led to arthritic conditions in his joints. The Veteran did not specifically raise service connection for a skin condition and such a claim was not developed on appeal. The Veteran is free to file a specific claim for a skin condition if he so desires. Duty to assist the Veteran in developing his claims The purpose of the Board’s February 2020 remand was to obtain medical records to support the Veteran’s claims. During the September 2019 hearing, there was a substantive discussion about the importance of supporting the Veteran’s assertions with medical evidence. The Veteran testified that he had discussed his theories of entitlement with his physicians and that he believed his treating physicians would support a relationship to service. Upon remand, therefore, the AOJ provided the Veteran with appropriate release of information forms and requested that he allow the VA to assist him in obtaining records reflecting his medical care. He did not respond in any way and did not otherwise provide VA with additional medical evidence. “The duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wished to fully develop his claim, he has a corresponding duty to assist by providing the requested information. Service Connection Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish a right to compensation for a present disability on a direct basis, a Veteran 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, 1167 (Fed. Cir. 2004). The Veteran may benefit from a presumption of service connection based on a chronic disease, such as arthritis. 38 C.F.R. § 3.309(a). When a chronic disease such as arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Even if a chronic disease is not shown within one year of discharge, service connection may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran seeks to establish service connection for arthritic conditions of the upper extremities which he theorizes may be due to exposure to chemicals, asbestos and/or ionizing radiation in service, or may be attributable to the rigors of military duties to include use of chipping hammers and needle guns. The Veteran’s service treatment records are negative for any complaints or treatment involving his upper extremities during service. The report of the general medical examination conducted in October 1984 prior to his separation from service reflects his upper extremities and musculoskeletal system were deemed to have been normal upon clinical examination. Upon the medical history portion of the report, the Veteran checked that he did not have and had never had arthritis, rheumatism, or bursitis, bone, joint, or other deformity. He also denied having had a painful or “trick” shoulder or elbow. The earliest post-service medical evidence available for review is dated in 2013. A July 2013 record shows complaints of pain in the hands, elbows, and shoulders, which the Veteran reported had begun approximately ten years prior, worsening over the years. The physician attributed the pain to degenerative joint disease, myalgia, and left shoulder impingement syndrome. This physician referenced explaining to the Veteran the “multiple etiologies of his pain” but no further explanation was offered. A January 2016 Report of Contact recorded the Veteran’s report “that he had experienced pain in service, but had dealt with it and had not sought treatment because he was ‘not a complainer.’” At the hearing in September 2019, the Veteran provided the following testimony regarding the onset of his upper extremity disorders: [Representative]: I’d like to clarify if, while you were in service from ’77 to ’84, were you having any problems with your hands, forearms, elbows, or shoulders? [Veteran]: No. I was in from ’74 to ’84. [Representative]: Okay. [Veteran]: I didn’t notice anything until, I’d say, oh, that must have been about 15 or so before I started noticing stuff in my joints. And I didn’t know what was going around. I mean, a little bit before that, I’d say maybe 45 to 48, I started noticing my shoulders and my hands and stuff, having problems. But, you know, I had a family to support. So I did – [Representative]: Right. [Veteran]: (inaudible) 14. [Representative]: So you got off active duty in 1984. [Veteran]: Yes. [Representative]: You later developed problems in joints. [Veteran]: Right. Otherwise, the Veteran testified to his belief that the degenerative joint disease in his hands, elbows, and shoulders must be related in some way to the chemicals he worked with during service, asbestos to which he was exposed during service, or repetitive trauma from chipping hammers and needle guns during service. He recalled one physician discussing that chemicals such as methyl ethyl ketone could enter his pores and affect the joints 20 to 30 years later in life. Similarly, he recalled that the physician stated that use of needle guns may not cause immediate pain when young but could cause problems later on in life. The Veteran’s representative asserted, according to his studies regarding anatomy and physiology, a pneumatic hammer could cause repetitive injury to the upper torso and could cause the Veteran’s orthopedic issues. At the outset, the Board finds that the credible lay evidence establishes the onset of chronic symptoms in the hands, elbows and shoulders many years after service. The Veteran provided specific, clear testimony under oath of a post-service onset which is consistent with his denial of arthritis, rheumatism, or bursitis, bone, joint, or other deformity, or having had a painful or “trick” shoulder or elbow at separation. The Board is cognizant of the 2016 statement “that he had experienced pain in service, but had dealt with it and had not sought treatment because he was ‘not a complainer.’” The Veteran did not specify pain of any particular joint, but presumably was speaking about the issues on appeal. This statement is not consistent with his prior statements in service or his specific testimony in 2019. The Board finds that his testimony under oath is the most credible version of the onset of his pain symptoms as it is consistent with his report at separation from service as well as his report to his private provider in 2013 wherein he reported pain in the hands, elbows, and shoulders which had begun approximately ten years prior. As such, the Board finds that the lay and medical evidence establishes the onset of chronicity of symptoms and disability many years after service. As such, the Board finds no basis for an award of service connection based upon chronicity of symptoms under 38 C.F.R. § 3.303(b) or the onset of arthritis within one year of service discharge under 38 C.F.R. § 3.309(a). As such, the dispositive issue on appeal concerns whether there is a medical nexus between the current disabilities and active service. The Board notes that VA’s duty to obtain medical opinion or examination is triggered by competent evidence of persistent or recurrent symptoms of disability since service or competent evidence suggesting an association with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As held above, the credible lay and medical evidence is against a finding of persistent or recurrent symptoms of disability. As to the nexus component, the Board notes that there are no hearsay exceptions in VA law, and the Veteran is competent to relate what he has been told by a treating physician. See generally Jandreau v. Nicholson, 492 F.3d. 1372, 1377 (Fed. Cir. 2007). The Veteran has recalled that a physician had mentioned that his disabilities may have been caused by his use of tools in service and/or his chemical exposures. The probative value of this evidence is low as the Board cannot determine what exactly the physician stated and/or the level of certainty in the opinion rendered. The Veteran did not respond to VA’s request to assist him in obtaining additional records which might have clarified what was said. While the probative value of such evidence is low, such evidence is sufficient to trigger VA’s duty to obtain an opinion in the case as the recalled statement was presumably from a source competent to provide such an opinion. Accordingly, the matters are REMANDED for the following: Afford the Veteran VA examination to determine whether any current disability of the hands, elbows and/or shoulders are causally related to service. a) The examiner should interview the Veteran and have him specifically identify his types of hazardous exposures during service and the types of tools that he used. b) The examiner should also consider the Board’s factual finding that the most credible evidence reflects the onset of hand, elbow and shoulder pain many years after service as reported in a July 2013 private treatment record. c) The examiner further consider the Veteran’s recollections that his physician informed him that: • that chemicals such as methyl ethyl ketone could enter his pores and affect joints 20 to 30 years later in life; and • that repetitive trauma from chipping hammers and needle guns during service could cause joint problems including carpal tunnel syndrome. The examiner should identify all currently diagnosed disorders of the hands, elbows, and shoulders to include consideration of degenerative joint disease and carpal tunnel syndrome. For all diagnosed disorders, the examiner is requested to provide opinion as to whether it is at least as likely as not that such disability is causally related to hazardous exposures during service and/or repetitive trauma from chipping hammers and needle guns. The examiner is requested to explain whether the types of hazardous exposures during service and/or the use of chipping hammers and needle guns are medically capable of causing the types of disabilities manifested by the Veteran and, if so, whether such events caused disability in this particular Veteran. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, 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.