The Appellant submitted a medical article indicating that findings suggest that exposure to hydrazine increases the risk of colon cancer. See Titan II Missile Veterans Health and Wellness.
A private physician, Dr. H., submitted a statement in May 2012. The physician indicated that the Veteran passed away from colon cancer in January 2011, and noted that the Veteran's MOS during service required him to work in the Titan II missile silos. The physician stated that the type of fuel used by the Titan missiles, unsymmetrical dimethylhydrazine (UDMH), was toxic and a known carcinogen. The physician asserted that the U.S. Air Force released findings of a study that was completed in 1983, which indicated that out of five missile sites tested, three of the silos had concentrations that would have failed the threshold limit value/time weighted average exposure rates currently in place today for Air Force and civilian workers. It was also noted that the concentrations in some of these cases were double the threshold limits.
Additionally, the physician noted that in March 2006, the medical journal Epidemiology published findings from a cohort study, "Estimated Effects of Hydrazine Exposure on Cancer Incidence and Mortality in Aerospace Workers," in which findings suggested an increased risk of colon cancer. The physician stated that based upon the Veteran's military record, which showed he worked in Titan II missile silos from 1968 to 1975, and based upon the research information available that confirmed Veterans who worked in these jobs were exposed to hazards, it was possible to make a determination of causation. The physician opined it was more likely than not that the Veteran's colon cancer and subsequent death were due to his exposure to hydrazine while on active duty.
The wife of the Titan II veteran used this websites information for her case. Her late husbands physician read the information and helped her make the connection in his/her letter to the VA. I am glad she was able use this important information about the toxic Titan II fuel chemicals.
This appealed VA case is being heard by the VA from the spouse of a Titan II veteran. The case has multiple medical claims. Colon Cancer caused by UDMH, Neurological upper extremities numbness, and hearing issues. The VA did decide the Colon cancer was from UDMH. However, as usual the VA Judge has to throw in remarks "Although the Veteran's colon cancer is a radiogenic disease and the Appellant has claimed the Veteran was exposed to radiation during service, the Board finds service connection for the cause of the Veteran's death is warranted based on exposure to hydrazine during service. As such, the regulations pertaining to radiation are not discussed in this decision."
Where is the evidence that the veterans colon cancer was a radiogenic disease? Radiogenic colon cancer is from being radiated with radiation to get rid of colon cancer in some cases. So, is the judge saying the veteran's colon cancer was caused by the radiation treatment?
Clearly there is medical documents linking exposure to UDMH and an increase in Colon Cancer in the UCLA medical study concerning Rockedyne employee's. The case does mention the Time Weighted Average(TWA), in 8 hours time, of exposure to UDMH is exceeded by a factor of two in the DM AFB study of titan II Missile sites. I would like to point out that the exposure to UDMH was way past two times (as pointed out in this VA document below) the current TLV-TWA as Titan II crew members were exposed for 24 hours which requires reduction of the 10 ppb current UDMH TWA per OSHA regulations. This reduces the current TLV-TWA specification of 10ppb to about 6 ppb as the TWA for a 24 hour alert. This adjusted UDMH TWA was again way exceeded by the Air Force and did not take into account the hydrazine exposure and other UDMH by-product chemicals! See crew member reduction calculations. Also, it has now come to my attention (2015) that even the actual sampled UDMH 8 hour TWA the DM Bioengineering did was wrongly calculated. See explanation.
This spouse needs to have the lawyer or person representing her in this case bring up the fact that neurological issues are another medical issue with exposure to UDMH and its breakdown chemicals. The veteran did have the neurological symptoms since service. This Titan II veteran's symptoms closely match neurological symptoms I had during service and since. Did he have a EMG on his arms indicating a problem with nerve conduction? The VA claims the Veteran's VA physician said he "had probable Vitamin B complex deficiency" but did not give him that simple blood test. This should not even be mentioned as it points at the VA for lack of care. Why not at least give the veteran a blood test for vit b and then the VA can state the result as a fact in dismissing his neurological problems? Really pretty lame! The VA then goes on to state he has symptoms related to disc problem or spine injury. What was the veterans spine injury and does it account for the numbness symptoms by medical tests? It seems the VA doctors quoted in this case speculate with no tests. No one addresses the UDMH to neurologic issues connection.
I suspect degenerative disc disease as an outcome of exposure to UDMH an its breakdown chemicals. There are enough Titan Vets with disc degeneration problems (way before old age) that there must be a medical link between the two.
As far as the case for loss of hearing. Do not waste your time unless you have hearing aids and you are almost deaf. Partial hearing loss in the normal low range will not meet the VA criteria for any compensation. Save yourself the headache in pursuing this.
Here is the VA case that has been put on hold for further evidence. This VA judge confirmed the veterans widow will get the Colon Cancer part of the appeal when it is finished.
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ACTUAL CASE SUMMARY
Citation Nr: 1402848
Decision Date: 01/23/14 Archive Date: 01/31/14
DOCKET NO. 08-37 133 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUES
1. Entitlement to service connection for the cause of the Veteran's death.
2. Entitlement to an initial compensable rating for the Veteran's right ear hearing loss.
3. Entitlement to service connection for the Veteran's neurological disorder of the bilateral upper extremities, to include as secondary to degenerative joint disease of the cervical spine and/or right shoulder bursitis.
REPRESENTATION
Appellant represented by: Oklahoma Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Edwards, Counsel
INTRODUCTION
The Veteran had active service from November 1968 to July 1975 and April 1977 to January 1992. The Veteran died in January 2011; the Appellant is the Veteran's surviving spouse.
This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case is also before the Board on appeal from a July 2011 rating decision by the VA St. Paul Pension Management Center in St. Paul, Minnesota. Jurisdiction over the case was subsequently returned to the RO in Muskogee, Oklahoma.
After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision.
The Appellant requested a hearing before the Board. The requested hearing was conducted in May 2012 by the undersigned Acting Veterans Law Judge. A transcript is associated with the claims file.
For claimants who died on or after October 10, 2008, (as is the case here), the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) created a new 38 U.S.C. § 5121A, which permits an eligible person to file a request to be substituted as the Appellant for purposes of processing the claim to completion. In this case, the record reflects that, in January 2011, the RO determined the Appellant was the surviving spouse of the Veteran, and that she was a proper person to be substituted as claimant in the Veteran's claims for VA benefits, which were pending at the time of his death. The Board will address the merits of the appellate claims with the Appellant as substituted party. The Board notes that, unlike an accrued benefits claim, the record is not closed on the date of death of the original claimant, but remains open for submission and development of any pertinent additional evidence. See VA Fast Letter 10-30 August 2010.
In January 2011 and September 2012, the Board remanded these claims for additional development. The Board is satisfied that there has been substantial compliance with the prior remands, regarding the issues of entitlement to service connection for the cause of the Veteran's death and entitlement to an initial compensable rating for right ear hearing loss. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the Appellant the right to substantial, but not strict, compliance with that order). In this respect, in response to the January 2011 remand, the RO scheduled the Veteran for VA examinations and readjudicated the claims then on appeal. In response to the September 2012 remand, the RO further developed the theory of ionizing radiation exposure as a cause for colorectal cancer, obtained private treatment records and readudicated the claims.
In May 2013, the Appellant submitted additional evidence for consideration in this appeal which has not been considered by the RO. The Board finds that this evidence, an opinion providing a nexus between colon cancer and hydrazine exposure in service, need not reviewed by the RO as it is deemed sufficient by the Board to grant the benefit sought on appeal. As this evidence is not relevant to the hearing loss evaluation, the Board also finds no need for RO review of this evidence in the first instance.
The issue of entitlement to service connection for a neurological disorder of the bilateral upper extremities, to include as secondary to degenerative joint disease of the cervical spine and/or right shoulder bursitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran died in January 2011. The cause of death was metastatic colon cancer.
2. At the time of the Veteran's death, service connection was in effect for tinnitus, right shoulder bursitis, degenerative joint disease of the cervical spine, eczema of the bilateral feet and hearing loss of the right ear.
3. The Veteran's colon cancer was causally or etiologically due to service, to include exposure to hydrazine.
4. For the relevant appeal period, the Veteran's right ear hearing loss was manifested by pure tone threshold averages and speech recognition scores that were no worse than level "I" hearing on the right and level "I" hearing on the left.
CONCLUSIONS OF LAW
1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2013).
2. The criteria for an initial compensable rating for right ear hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.383(f), 4.85, 4.86 Diagnostic Code 6100 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).
In this case, the Board is granting the Appellant's claim of entitlement to service connection for the cause of the Veteran's death. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Appellant, and remand for such notice and/or development would be an unnecessary use of VA time and resources.
Concerning the increased rating claim, the Board notes that the Appellant's claim for an increased disability rating arises from disagreement with the initial evaluation following the grant of service connection. It has been held that once service connection is granted, the claim is substantiated and additional notice is not required. Any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran and the Appellant, and for which they authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated service treatment records, service personnel records, and post-service private and VA medical records with the claims folder. Virtual VA records have been reviewed.
In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Appellant will not be prejudiced by the Board's adjudication of the claims.
With respect to the 2012 Board hearing, the provisions of 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010).
Here, during the hearing, the Veteran testified to the nature and severity of his hearing loss, and the undersigned clarified with him the available treatment records. The Veteran described an increased severity of disability since his last VA examination, and this allegation was addressed in a Board remand for additional VA examination. Thus, the Board assured that there was no evidence which had been overlooked.
Neither the Appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has she identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. Furthermore, any deficiencies in the hearing were cured with further Board development of the case although, unfortunately, the Veteran was unable to attend his scheduled VA examination.
II. Entitlement to Service Connection for the Cause of the Veteran's Death
The Veteran died in January 2011. The cause of death was metastatic colon cancer. See January 2011 Death Certificate.
The Appellant seeks Dependency and Indemnity Compensation (DIC) through a claim to establish service connection for the Veteran's death. She contends that the Veteran's colon cancer was caused by exposure to radiation and/or to hydrazine fuel during service.
DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5. In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a).
In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and death. Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999).
Service records were reviewed. Personnel records indicate the Veteran's Military Occupational Specialty (MOS) was in Electronic Communications Cryptographic Equipment System Repairment. Accordingly, the Board has conceded exposure to hydrazine (a chemical used in rocket fuels). See September 2012 Board Remand.
Although the Veteran's colon cancer is a radiogenic disease and the Appellant has claimed the Veteran was exposed to radiation during service, the Board finds service connection for the cause of the Veteran's death is warranted based on exposure to hydrazine during service. As such, the regulations pertaining to radiation are not discussed in this decision.
The Appellant submitted a medical article indicating that findings suggest that exposure to hydrazine increases the risk of colon cancer. See Titan II Missile Veterans Health and Wellness.
A private physician, Dr. H., submitted a statement in May 2012. The physician indicated that the Veteran passed away from colon cancer in January 2011, and noted that the Veteran's MOS during service required him to work in the Titan II missile silos. The physician stated that the type of fuel used by the Titan missiles, unsymmetrical dimethylhydrazine (UDMH), was toxic and a known carcinogen. The physician asserted that the U.S. Air Force released findings of a study that was completed in 1983, which indicated that out of five missile sites tested, three of the silos had concentrations that would have failed the threshold limit value/time weighted average exposure rates currently in place today for Air Force and civilian workers. It was also noted that the concentrations in some of these cases were double the threshold limits.
Additionally, the physician noted that in March 2006, the medical journal Epidemiology published findings from a cohort study, "Estimated Effects of Hydrazine Exposure on Cancer Incidence and Mortality in Aerospace Workers," in which findings suggested an increased risk of colon cancer. The physician stated that based upon the Veteran's military record, which showed he worked in Titan II missile silos from 1968 to 1975, and based upon the research information available that confirmed Veterans who worked in these jobs were exposed to hazards, it was possible to make a determination of causation. The physician opined it was more likely than not that the Veteran's colon cancer and subsequent death were due to his exposure to hydrazine while on active duty.
To date, there is no medical opinion to the contrary regarding the relationship between the Veteran's exposure to hydrazine and subsequent development of colon cancer. As such, resolving all doubt in favor of the Appellant, the Board finds the Veteran's colon cancer was causally due to his exposure to hydrazine during service.
Given the evidence of record, including service personnel records, post-service treatment records, medical research studies, and the private physician's opinion regarding a link between the Veteran's cause of death and exposure to hydrazine during service, the Board finds that service connection for the Veteran's cause of death is warranted.
III. Entitlement to an Initial Compensable Rating for Right Ear Hearing Loss
The Appellant seeks entitlement to an initial compensable rating for the Veteran's right ear hearing loss.
Service connection for hearing loss of the right ear was established by a February 2008 rating decision, at which time a noncompensable rating was assigned, effective from November 2007. The Appellant is requesting a compensable rating.
Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because the Appellant is appealing the initial assignment of the disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present. See Fenderson v. West, 12 Vet. App. 119 (1999).
In its evaluation, the Board shall consider all information and lay and medical evidence that is of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).
The basis for evaluating defective hearing is the impairment of auditory acuity as measured by pure tone threshold averages, within the range of 1000 to 4000 Hertz and speech discrimination using the Maryland CNC word recognition test. 38 C.F.R. § 4.85.
Pure tone threshold averages are derived by dividing the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 by four. Id. The pure tone threshold averages and the Maryland CNC test scores are given a numeric designation, which are then used to determine the current level of disability based upon a pre-designated schedule. Tables VI and VII in 38 C.F.R. § 4.85. Under these criteria, the assignment of a disability rating is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993).
The Veteran was afforded a VA examination in January 2008. On the authorized audiological evaluation in January 2008, pure tone thresholds, in decibels, were as follows:
HERTZ 1000 2000 3000 4000
RIGHT 25 10 15 60
LEFT 10 10 10 25
Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear.
The examiner from the VA examination in January 2008 noted mild to moderate, unilateral sensorineural hearing loss in the right ear.
The Veteran's January 2008 VA audiology examination demonstrated a right ear pure tone threshold average of 28 decibels with speech recognition of 96 percent. This corresponds to a numeric designation of "I." Table VI in 38 C.F.R. § 4.85.
Hearing levels for the left ear were within normal limits, and therefore service connection for hearing loss of the Veteran's left ear was not established. If impaired hearing is service connected in only one ear, in order to determine the percentage evaluation, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of "I." 38 C.F.R. § 4.85(f).
These combined numeric designations of "I" and "I" then result in a rating of 0 percent under Table VII. 38 C.F.R. § 4.85, Table VII.
Additionally, the Board has considered 38 C.F.R. § 3.383(a)(3) which provides for special consideration for disabilities affecting paired organs, but finds that it does not apply in this case, as the Veteran's left ear hearing loss does not meet the criteria of 38 C.F.R. § 3.385.
The Board notes that in a January 2011 Board Remand, the RO was instructed to afford the Veteran a new VA examination. Unfortunately, the Veteran passed away in January 2011 before a new VA examination could be conducted.
The Board has considered the Veteran's statements and the Appellant's statements regarding the severity of the Veteran's hearing loss. However, the Board finds that the most probative evidence concerning the level of severity of this disorder consists of the VA audiometric word testing results of record which are a more precise measurement regarding the extent of hearing loss than the lay perceptions of hearing impairment. As noted above, disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned based on audiometric evaluations.
Based on the VA examination, the Veteran's hearing loss during the appeal period was no more than level I in the right ear; and due to not being service connected for hearing loss in the left ear, the left ear is a level I. These combined numeric designations of "I" and "I" then result in a rating of 0 percent under Table VII. 38 C.F.R. § 4.85, Table VII. There has been no variation in the severity of symptoms to warrant a staged rating. Therefore, a compensable initial rating is not warranted.
Extraschedular Consideration
The Board finds that the Veteran's right ear hearing loss does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id.
Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology pertaining to his service-connected right ear hearing loss. As indicated above, the Veteran and his spouse reported his difficulty hearing and understanding speech. The Board finds that the Rating Schedule measures and contemplates these aspects of the Veteran's hearing loss disability.
As explained in the proposed rule for the current version of DC 6100, the criteria of DC 6100 were revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment. See 52 Fed. Reg. 17607 (May 11, 1987). As a result, VA changed its testing methods and, in conjunction with the Department of Medicine and Surgery, developed amendments to 38 C.F.R. § 4.85 , 4.86a, 4.87a and Tables VI and VII. In particular, puretone averaging was to be accomplished using tone bursts at 1000, 2000, 3000 and 4000 Hertz, and speech recognition was to be measured using the Maryland CNC word lists which contained words with sounds in the 3000 and 4000 Hertz range.
Overall, the new schedule was intended to evaluate hearing loss based on a combination of puretone averages and speech discrimination, which was thought to provide for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment of speech and vice versa.
Additionally, the rating schedule was revised to accommodate language difficulties and other factors which produced inconsistent speech audiometry scores, and to recognize exceptional patterns of hearing impairment. Notably, VA determined that "Table VII was developed during months of consultations with our Department of Medicine and represents the best judgment of experts in this field."
Based upon the stated factors and considerations undertaken by VA and medical experts in developing the current criteria of DC 6100, the Board finds that the schedular rating currently assigned reasonably describes the Veteran's disability level and symptomatology. The Veteran's description of an inability to hear and discriminate speech has been measured according to puretone averages and speech discrimination. The Board further observes that VA examinations are conducted without use of hearing aids, see 38 C.F.R. § 4.85, and that the use of hearing aids would, if anything, provide better hearing than demonstrated on audiometric examination. See 52 Fed. Reg. 44117 (Nov. 18, 1987). Furthermore, as explained in Thun, the Veteran's contention that he would have earned higher wages but for his hearing loss are contemplated in the schedule of ratings and are not a proper consideration for an extraschedular analysis. As such, extraschedular consideration is not warranted.
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU benefits is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id.
In this case, the Veteran had not specifically alleged unemployability due to right ear hearing loss, and the evidence of record does not suggest that right ear hearing loss caused unemployability. Therefore, the Board finds that the issue of entitlement to a TDIU was not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary.
ORDER
Entitlement to service connection for the cause of the Veteran's death is granted.
Entitlement to an initial compensable rating for right ear hearing loss is denied.
REMAND
The Appellant seeks entitlement to service connection for the Veteran's neurological disorder of the bilateral upper extremities, to include as secondary to degenerative joint disease of the cervical spine and/or right shoulder bursitis.
Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013).
The Veteran was service connected for degenerative disc disease of the cervical spine and for right shoulder bursitis. Service treatment records indicate that he sought treatment for numbness to the right hand in May 1981. He was assessed with probable ulnar nerve involvement and sent for evaluation. Examination of the right upper extremity revealed no neurological deficit and it was noted that the Veteran had probable Vitamin B complex deficiency. Later, he complained of numbness to the right and left upper extremities in April 1985 and he was assessed with rule out vascular lesion. In June 1985, the Veteran reported no further paresthesias in his arms or shoulders and was assessed with overuse syndrome, stable. In October 1987, the Veteran complained of right shoulder pain with occasional numbness into his arm. Post-service, during a September 2008 VA examination, the Veteran reported that when doing constant repetitive motion, he had to take a break because of his arms aching. The examiner noted that the Veteran's arm problems might be secondary to his neck problems, given that he had similar complaints while in service.
The Veteran testified in June 2010 that he first noticed bilateral arm numbness during service, after his cervical spine injury, and that post-service, he continued to experience arm numbness anytime he drove. See June 2010 BVA Hearing Transcript, pages 8-10. He testified that he experienced flare-ups anytime he used his hands above shoulder level for work or driving. Id.
The Board finds that a VA medical opinion is necessary. The Board acknowledges that a medical opinion was requested and obtained by the RO in October 2011, but finds that it is inadequate for purposes of deciding the claim. The October 2011 VA examiner noted the Veteran's documented neurological symptoms during service; however, the examiner stated that the claims file was otherwise negative for any complaints consistent with a neurological disorder of the bilateral upper extremities. There is no discussion of the arm symptoms described during the September 2008 VA examination, the September 2008 VA examiner's statement that the Veteran's arm symptoms might be related to his cervical spine, or the Veteran's lay statements during the June 2010 BVA Hearing.
Importantly, the Board notes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006). As such, the Board finds a remand is necessary to obtain a medical opinion that addresses this evidence. In rendering the new opinion, the examiner should consider the Veteran's statements regarding the occurrence of the disorder, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion). The VA may not simply disregard lay evidence because it is unaccompanied by medical evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
Accordingly, the case is REMANDED for the following actions:
1. Obtain an addendum opinion to the October 2011 VA examination. The examiner is requested to review all pertinent records associated with the claims file, including this Remand.
Based on a full review of the record, to include the Veteran's and Appellant's lay statements regarding the incurrence and continuity of symptomatology of his neurological disorder of the bilateral upper extremities, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that:
a) the Veteran's neurological disorder of the bilateral upper extremities was in any way causally or etiologically related to his active service; and,
b) the Veteran's neurological disorder of the bilateral upper extremities was proximately due to or aggravated (a permanent increase in severity beyond natural progress) by his degenerative joint disease of the cervical spine and/or right shoulder bursitis.
In particular, review the lay statements as they relate to the development of his neurological disorder of the bilateral upper extremities and provide information as to how the statements comport with generally accepted medical norms.
In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology.
The examiner is also asked to reconcile the statement made by the September 2008 VA examiner indicating there was a possibility that the Veteran's bilateral arm symptoms were due to his cervical disability.
If it is not possible to provide the requested opinions without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion.
All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.
3. After all of the above actions have been completed and the Appellant has been given adequate time to respond, readjudicate the claim. If the claim remains denied, issue to the Appellant a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of this case. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs