Citation Nr: 21030501 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 07-30 109 DATE: May 19, 2021 ORDER Entitlement to service connection for a disability of the left upper extremity is denied. FINDING OF FACT The Veteran did not exhibit a disability of the left upper extremity in service, arthritis of the left upper extremity did not manifest in service or to a compensable degree within one year after discharge from service, and a disability of the left upper extremity is not otherwise shown to be associated with active service or with a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1972 to July 1977 and from January 1980 to February 1986. This matter comes before the Board on appeal from a May 2007 Regional Office (RO) rating decision. In August 2008 and August 2012, the Veteran testified at hearings before Veterans Law Judges who are no longer with the Board. In March 2019, he testified at a hearing before the undersigned Veterans Law Judge. 1. Entitlement to service connection for a disability of the left upper extremity is denied. The Veteran has claimed entitlement to service connection for a disability of the left upper extremity, including body arthritis. He contends that this disability arose from the July 1976 motorcycle accident. The record reflects that the Veteran was in an accident in July 1976 during his first period of active service. The accident report reflects that the Veteran was riding a motorcycle and hit the front right trailer tire of an eighteen-wheeler. He was thrown from his motorcycle. In a May 2007 personal statement, the Veteran reported that he "flew over the front end of the truck 35 feet, landed on my head in the street, bounced and then flew another 55 feet over an embankment and landed in a dirt pile with my right shoulder." Alternatively, he contends that he suffered injury when a metal locker fell on his neck and shoulders in 1980. The Veteran has described the metal locker accident having occurred in early 1980s, shortly following his entrance into a second period of service. The Board notes that the Veteran's available service treatment records do not reflect that he was treated for such an injury. In August 2008, the Veteran submitted a letter from a fellow servicemember who stated that the Veteran went on sick call several times for neck and shoulder pain and that he was given a profile so he did not have to wear a steel pot. This evidence, however, is contrary to the evidence contemporaneous to service which the Board finds more probative given its proximity to service. Specifically, the Veteran's records from the following six years reflect that he never complained of or sought treatment for symptoms associated with any such injury. As a preliminary matter, the Board notes that most of the service treatment records from the Veteran's first period of active duty service are unavailable. In such circumstances, VA has a heightened duty to assist a veteran in developing his or her claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA has met this duty and has obtained the Veteran's available outstanding medical records. It has also given heightened consideration to the Veteran's lay testimony regarding the disability at issue. The Board notes that the motorcycle accident to which the Veteran attributes his left upper extremity disability occurred toward the end of his first period of active duty service. The Veteran has expressly denied having obtained medical treatment during his seven months of Reserve service between his two periods of active duty. The Veteran's complete medical records from his second period of active duty service have been associated with the claims file. Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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, or nexus, 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). Service connection may also be granted for listed chronic diseases, such as arthritis, if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). A disability that is proximately due to, or results from, a service-connected disease or injury shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection on the basis of aggravation is permitted. 38 C.F.R. § 3.310(b). Compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). Turning to the evidence of record, service treatment records reflect that the Veteran's upper extremities were clinically normal when examined at his December 1979 enlistment examination. He expressly denied any history of, or current, swollen or painful joints or painful or trick shoulder or elbow on his December 1979 enlistment medical history report. Service treatment records also reflect that the Veteran sought treatment after jamming his left thumb while playing volleyball in April 1985. He was treated for this injury in April 1985 and May 1985. In addition, a November 1985 radiology report was requested for the purpose of ruling out whether the Veteran had a left shoulder fracture. Ultimately, the radiology report could identify no significant left shoulder abnormality. Turning to his post-service medical records, a September 2004 VA medical record reflects that the Veteran suffered "left forearm pain and swelling after having a 4-wheeler fall on top of him. The accident happened 5pm this evening." Following examination and diagnostic testing, an assessment of "left distal radius fracture and ulnar styloid [fracture]." An April 2005 VA medical record notes that the Veteran "underwent open reduction and internal fixation of the left radius fracture in October of 2004. He has done well since surgery and has gone on to heal up his fracture." A May 2005 VA medical record notes that the Veteran had surgical repair of a fractured radius and ulna of his left arm in 2004. A July 2005 VA medical record notes that the Veteran's left arm is still painful. An October 2013 elbow and forearm examination report opines that there is no medical evidence of any chronic elbow condition related to service, and it cites insufficient documentation and evidence. Rather, the examiner opined that "it is as likely as not that the elbow pain is related #1 to history of manual labor jobs #2 accident with 4 wheeler in 2004 result[ing] in distal ulner [sic] fracture left #3 aging." The Board finds this opinion to be highly probative with respect to the portion of the claim that pertains to the Veteran's elbow and forearm, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and interview and examination. It contains a rationale that cites the facts of the Veteran's case. The Board notes that the Veteran's ulnar fracture occurred approximately 18 years following his separation from service, and there is no suggestion that this injury is related to service in any manner. No competent medical expert has linked these particular complaints to service. The Board will now turn to the portion of the claim involving the Veteran's left shoulder. An April 1999 VA medical record notes that the Veteran "reports he would be doing well except for severe chronic pain in neck and left shoulder. He has had this problem off and on since [motorcycle] wreck in service, but it is worse and more constant now than in the past." An October 2000 VA medical record notes that the Veteran "returns 3 months after his CSpine fusion." It notes that the Veteran "relates that he still has occasional left post-shoulder sharp pains that can make him almost cry. He also relates that his left arm occasionally will still go to sleep." On examination, the Veteran was "tender in the left superio-medial border of the scapula. There are spasmed muscles at this point." A November 2000 VA medical record notes that the Veteran's "left shoulder and arm pain have pretty well resolved now on the NSAID and Robaxin." It was noted that "muscle spasms in the left medial-superior scapular area are still present & tender to palpation." The assessment was "Controlled myofascial disease on NSAIDS and muscle relaxants." It also notes that he was "Stable post-op CSpine fusion." A May 2002 VA medical record notes that the Veteran "has tingling in his arms for a long time." July 2009, July 2011, and June 2015 VA medical records note that the Veteran was being bothered by shoulder pain. The October 2013 VA examination report includes a normal left shoulder radiology report. The purpose of this study was to determine whether the Veteran had degenerative joint disease. The findings were as follows: Evidence of previous cervical spine fusion procedure with plate and screws present as noted on the margin of the study. Otherwise no significant bone, joint, or soft tissue abnormality is demonstrated radiographically. The acromiohumeral space is normal. The glenohumeral joint is maintained within normal range. The visualized portion of the lung is clear. The October 2013 VA shoulder and arm conditions examination report diagnoses bilateral shoulder strain with an unknown date of diagnosis. The examiner opined that the Veteran's left shoulder strain is less likely than not related to service. The rationale notes, in relevant part, that there is no documentation of a left shoulder condition while in service and that there are no medical records of treatment of a left shoulder condition after service until he came to VA in 1999. As noted in the Board's August 2019 remand, however, the Veteran's service treatment records contain a November 1985 radiology report that was requested for the purpose of ruling out whether the Veteran had a left shoulder fracture. Ultimately, the radiology report from the service treatment records could identify no significant left shoulder abnormality. However, the Board, in its August 2019 remand, noted that this record reflects that the Veteran was suspected as having a possible left shoulder fracture within a few months of his separation from service. The Board therefore found it necessary to remand this claim to obtain an etiology opinion that addresses the November 1985 service treatment record. The Veteran underwent a VA examination in November 2020. This record notes that the Veteran reported an onset of his left shoulder disability of 1976 and that it has worsened since onset. The examiner diagnosed left shoulder strain. Based on review of the record and interview and examination of the Veteran, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner observed that "There is insufficient evidence in the medical records available for my review to support that any currently diagnosed condition(s) related to the veteran's claimed left shoulder strain is/are at least as likely as not (50 percent or greater probability) incurred in or caused by the military service." The examiner noted that "Even though a shoulder x-ray is annotated on records dated 11/17/85, this is insufficient evidence of a current chronic shoulder condition." The November 2020 VA examiner further noted that "The left upper extremity radiculopathy is less likely than not due to service, and more likely than not due to cervical fusion. Cervical fusion is the treatment for degenerative disc disease which increases the risk for upper extremity radiculopathy." The examiner cited UpToDate literature to support this opinion. The Board finds this opinion to be highly probative, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). This opinion is based on review of the record and interview and examination of the Veteran. It addresses the November 1985 service treatment record, noting that such record "is insufficient evidence of a current chronic shoulder condition." It includes a rationale that cites the facts of the Veteran's case and pertinent medical principles. With respect to the left upper extremity radiculopathy diagnosis, in particular, the Board notes that service connection for a neck disability was denied by the Board in its August 2019 decision. Thus, entitlement to service connection for left upper extremity on a secondary basis to his nonservice-connected neck disability must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The only remaining contrary opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. In short, the Board finds that entitlement to service connection for a disability of the left upper extremity is not warranted on a direct or a secondary basis. In the absence of a diagnosis of arthritis, entitlement to service connection is not warranted on a presumptive basis based on chronic disability. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth Jalley, 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.