Citation Nr: 22019904 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 13-35 553 DATE: April 3, 2022 ORDER Entitlement to service connection for a left arm disability, including as due to a service-connected spinal fusion for spondylolisthesis, is denied. FINDING OF FACT The record evidence shows that the Veteran does not experience any current left arm disability which is related to active service or any incident of service, including as due to service-connected spinal fusion for spondylolisthesis. CONCLUSION OF LAW The criteria for service connection for a left arm disability, including as due to service-connected spinal fusion for spondylolisthesis, have not been met. 38 U.S.C. §§ 101(24), 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from November 1968 to November 1971. He also had additional unverified U.S. Army National Guard service, to include multiple periods of active duty, active duty for training, and active duty for special work, between November 1986 and April 1996. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A Travel Board hearing was held in February 2017 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The record evidence shows that, in response to a request for the Veteran's complete Social Security Administration (SSA) records, SSA notified VA in May 2019 that it had no records for him. In cases where the Veteran's service treatment records (or other relevant records) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records (or other relevant records) shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). Having reviewed the record evidence, and especially in light of the negative response from SSA, the Board concludes that it is reasonably certain that no SSA records exist for the Veteran and further attempts to obtain them would be futile. Most recently, in August 2020, the Board remanded, in pertinent part, the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ schedule the Veteran for examination to determine the nature and etiology of his claimed left arm disability. This examination occurred in September 2021. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In an August 2020 rating decision, the AOJ granted, in pertinent part, service connection for spinal fusion for spondylolisthesis. In a January 2022 rating decision, the AOJ also granted service connection for a traumatic brain injury (TBI), peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right upper extremity, and for scars. Accordingly, issues relating to service connection for each of these disabilities are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (1997). The Board is not persuaded that the evidence supports granting the Veteran's claim of service connection for a left arm disability, including as due to service-connected spinal fusion for spondylolisthesis. The Veteran essentially contends that he incurred a left arm disability during active service and experienced continuous post-service disability. He alternatively contends that his service-connected spinal fusion for spondylolisthesis caused or aggravated his claimed left arm disability. The record evidence does not support his assertions regarding the existence of current disability due to his claimed left arm disability which could be attributed to active service or any incident of service, including as due to his service-connected spinal fusion for spondylolisthesis. It shows instead that he does not experience any current disability due to his claimed left arm disability which is attributable to active service or any incident of service, including as due to his service-connected spinal fusion for spondylolisthesis. For example, the available service treatment records show that, at his U.S. Army enlistment physical examination in November 1968, he denied any relevant pre-service medical history. Clinical evaluation was normal. At his separation physical examination in June 1971, prior to his separation from U.S. Army service in November 1971, he denied any relevant in-service medical history. Clinical evaluation was normal. At his U.S. Army National Guard enlistment physical examination in November 1986, clinical evaluation was normal. He denied any relevant medical history. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for a left arm disability, including as due to service-connected spinal fusion for spondylolisthesis. Contrary to his lay assertions and Board hearing testimony, it shows instead that he does not experience any current disability due to his claimed left arm disability which is attributable to active service or any incident of service, including as due to his service-connected spinal fusion for spondylolisthesis. It is undisputed that, following service separation, the Veteran had spinal fusion surgery and service connection currently is in effect for spinal fusion for spondylolisthesis. The Veteran's voluminous post-service VA outpatient treatment records show that he occasionally reported a pre-service left arm fracture in 1964 to his VA treating clinicians. On VA peripheral nerves conditions Disability Benefits Questionnaire (DBQ) in May 2021, the Veteran's complaints included numbness and tingling in his left arm since injuring his left arm while on U.S. Army National Guard service in 1993. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran stated that he was unable to do yard work, drive a lawnmower, or drive distances over 20 miles. He was right-hand dominant. There were no symptoms of the left upper extremity on examination. Physical examination of the left upper extremity showed 5/5 muscle strength, normal reflexes and sensation, and normal nerves. The VA examiner opined that it was less likely than not that the Veteran's claimed left arm disability is related to active service. The rationale for this opinion was based on a review of the claims file. The rationale also was, "No left arm condition could be found." Contrary to the Veteran's lay assertions and Board hearing testimony, the record evidence shows that he does not experience any current disability due to his claimed left arm disability which is related to active service or any incident of service, including as due to his service-connected spinal fusion for spondylolisthesis. The Board recognizes that, in the decades since his service separation, the Veteran occasionally reported a medical history of a pre-service left arm fracture in 1964. The Board notes in this regard that he did not report consistently this alleged medical history of a left arm fracture in 1964 to his post-service VA treating clinicians. More importantly, he also did not report any relevant pre-service medical history, to include an alleged left arm fracture in 1964, at his enlistment physical examination in November 1968. The Board finds the medical history which he reported at his enlistment physical examination in November 1968 more probative than what he reported decades later because it is contemporaneous to when his alleged left arm fracture occurred in 1964. Even assuming for the sake of argument only that the Veteran fractured his left arm in 1964 prior to his enlistment in November 1968, the record evidence still does not support granting service connection for a left arm disability, including as due to service-connected spinal fusion for spondylolisthesis. The May 2021 VA examiner specifically opined that it is less likely than not that the Veteran's claimed left arm disability is related to active service or any incident of service, including as due to his service-connected spinal fusion for spondylolisthesis. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). There is no indication in the record evidence that the Veteran currently experiences disability due to his claimed left arm disability. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a left arm disability at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence other than the Veteran's unsupported lay assertions that he experiences current left arm disability which is related to active service or any incident of service, including as due to his service-connected spinal fusion for spondylolisthesis. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a left arm disability, including as due to his service-connected spinal fusion for spondylolisthesis. In summary, the Board finds that service connection for a left arm disability, including as due to service-connected spinal fusion for spondylolisthesis, is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.