Citation Nr: 21024222 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-16 704A DATE: April 22, 2021 ORDER Service connection for a left arm disability is denied. FINDING OF FACT The Veteran does not have a left arm disability due to disease or injury, nor has he had such disability any time incident to the claim. CONCLUSION OF LAW The criteria for service connection for a left arm disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1999 to February 2003. He appeals a May 2015 rating decision. In October 2019, he testified at a hearing before the undersigned Veterans Law Judge (VLJ) along with his wife and daughter. The VLJ clarified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims and inquired as to the existence of potential outstanding records. The VLJ also granted the motion to hold the record open for an additional 60 days for the Veteran to submit additional evidence. Thus, the actions of the VLJ comply with 38 C.F.R. § 3.103. In February 2020, the Board remanded the claims of service connection for left arm and right knee disabilities to the agency of original jurisdiction (AOJ). The AOJ granted service connection for a right knee disorder in a December 2020 rating decision. The appeal as to the claim of service connection for left arm disability was denied by the AOJ and was returned to the Board. In February 2021, the Veteran’s accredited representative submitted additional argument and evidence with a waiver of AOJ initial review. While the representative has requested a clarifying medical opinion, as discussed below, we find the November 2020 VA medical opinion adequate and that there has been substantial compliance with the remand directives. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110 (wartime), 1131 (peacetime). In general, to establish a right to compensation for a present disability, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Certain chronic diseases such as other organic diseases of the nervous system, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection for left arm disability is denied. The Veteran seeks service connection for left arm disorder; he testified that he has had left arm tingling, numbness and pain since in-service phlebotomy. Service treatment records (STRS) reflect left arm complaints of pain, numbness and tingling in service following a February 2002 left arm phlebotomy. A May 2002 consult showed hyperesthesia, left upper extremity, status post injury to median nerve, possible carpal tunnel syndrome. NCS and EMG studies were ordered but were normal. The December 2002 clinical examination at separation was negative for the left arm. It was noted that the in-service left arm post phlebotomy numbness and pain had resolved. The Veteran denied recent symptoms. A VA examination in April 2003 reflects the examiner’s assessment of no left arm disability. A January 2018 private examiner’s opinion is that the Veteran’s left arm pain, discomfort, and tingling are due to military duty. The opinion was reportedly based on complaints dating back to 2002 and a recent vascular study which revealed that thoracic outlet syndrome may have been triggered by active duty. The issue for the Board is whether the Veteran has current left arm disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that the Veteran does not have current left arm disability and has not had any such disorder at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The competent, credible evidence fails to show current disability. In the February 2020 remand, the Board ordered examination to determine the nature and etiology of any left arm disability. For each left arm disability identified, the examiner was asked to opine whether it is at least as likely as not related to an in-service injury or disease to include the post phlebotomy pain and symptoms. The examiner was asked to address the 2018 private opinion that there is current left arm disability characterized as thoracic outlet syndrome. The Veteran was afforded two VA examinations in November 2020, one for Peripheral Nerves Conditions and one for Elbow and Forearm Conditions. Both of the examinations, performed by the same VA physician who reviewed the records and examined the Veteran, reflect that there is no current left arm disability. Both of these disability benefits questionnaire (DBQ) reflect that the examiner noted that left arm pain with radiation to elbow was of sudden onset by 2002. The Veteran referred that it could have been by carrying arm heavy luggage. The current complaints of inability to grip anything was noted. It was noted that he had a phlebotomy 2003 that caused numbness. In 2000 he had an anthrax vaccine which also provoked numbness and tingling. The left elbow and forearm DBQ reflects the current complaints of inability to grip anything was noted. Treatment was with meloxicam, ibuprofen. The examiner stated that although the Veteran reports functional limitations, there is no objective evidence on exam to explain the claimed limitations. The peripheral nerves DBQ reflects there is no peripheral nerve condition or peripheral neuropathy. Treatment was with ibuprofen and Flexeril. He has pain and cramps all the time that radiates to occipital area and to the whole arm. The examiner explained that although the Veteran reports severe constant pain, paresthesias/dysesthesias, and numbness of the left upper extremity, there is no objective evidence to warrant a diagnosis of any peripheral nerve condition at this time. The medical opinion rendered by the physician after examining the Veteran was that a left arm disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. It was noted there was no diagnosis. The examiner explained that the post phlebotomy was documented as resolved and there is no objective evidence to warrant a diagnosis of a peripheral nerve or elbow condition at this time. It was noted that the 2018 medical opinion that there was current thoracic outlet syndrome was considered. The VA examiner rejected the opinion, stating: Although the private examiner opined the left arm disability was characterized as thoracic outlet syndrome, there is no objective evidence to warrant a diagnosis of thoracic outlet syndrome or any other peripheral nerve or elbow condition at this time. The post phlebotomy was documented as resolved. There is no objective evidence to warrant a diagnosis of a peripheral nerve or elbow condition at this time. We note that the Veteran’s representative has argued that this opinion is inadequate as it failed to address directly the fact that the Veteran had complaints related to the left shoulder in 2015. In this regard, we note that the Veteran was seen for physical medicine and rehabilitation at VA in September and October 2015 for left shoulder pain since a fall in his bathroom in June 2015. MRI of the left shoulder in October 2015 reflects no occult fracture identified. He was scheduled for PT and cervical evaluation which was reportedly accomplished. A November 2016 diagnostic report reflects there is no electrodiagnostic evidence consistent with the presence of peripheral neuropathy nor thoracic outlet syndrome. We reasonably conclude that the VA examiner in November 2020 reviewed this information related to an acute fall in 2015 when they reviewed the record. We also reasonably conclude that the examiner reviewed the VA treatment records dated in 2016, 2017 and 2019 which reference the ongoing assessment of thoracic outlet syndrome, including a July 2017 Doppler report reflects a finding of bilateral TOS (thoracic outlet syndrome). Also, although there is a February 2021 VA telephone primary care consultation reflecting the ongoing notation of thoracic outlet syndrome, based on reports of pain and ‘confirmed on doppler in 2017’, we find this to be outweighed by the examiner’s opinion which was based on examination of the Veteran and review of the record and was specifically focused on whether indeed there was current disability. The weight of the competent evidence is against finding current disability due to disease or injury. We also find that peripheral neuropathy was not manifest within one year of separation. Due to the absence of proof of a present disability due to disease or injury, there is no valid claim for service connection on any basis. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992). It follows that there must be a recognized disease or injury. The 2018 opinion of the non-VA physician is outweighed by the VA examiner’s opinion because the VA examiner provided a thorough rationale as to why there is no current disability after considering the 2018 opinion. The lay opinion of the Veteran is outweighed by the VA examiners’ opinion. The Board acknowledges that he indeed may report his perception of symptoms. These were considered by the VA physician in rendering the findings of no current disability due to disease or injury. The weight of the probative evidence is against a finding of current disability due to disease or injury as to the claim. In weighing the evidence, the Board finds that the medical evidence of record, and the lack of competent support for a current disability due to disease or injury, preponderates against the claim. The VA examinations are probative, because they are based on an accurate medical history and they provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board adopts the November 2020 VA opinions for the reasons and bases, noting that the VA examiner fairly considered the material evidence of record. Wray v. Brown, 7 Vet. App. 488 (1995). The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. We emphasize that under the provisions of 1110, there must be disability and such disability must be due to disease or injury. Although Saunders addressed whether pain could be a disability, Saunders did not eliminate the requirement that there be underlying acquired pathology (disease or injury) in a non-Gulf War case. Here, the appellant had no foreign service. Again, the most probative evidence, the 2020 VA examination specifically establishing no disability due to identified pathology, establishes that he does not have a left arm disability due to disease or injury. The Board has specifically   considered the testimony in this case. However, the VA medical evidence is far more probative and credible in regard to the presence of an underlying pathology (disease or injury) to account for his complaints. The preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL, 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.