Citation Nr: 0810775	
Decision Date: 04/01/08    Archive Date: 04/14/08

DOCKET NO.  04-05 740	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to service connection for the residuals of a 
right index finger injury.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

The appellant had active service from April 1966 to January 
1970, including service in Vietnam from December 1967 to 
February 1968.  

This case originally came before the Board of Veterans' 
Appeals (Board) on appeal from a May 2002 rating decision 
issued by the St. Petersburg, Florida Regional Office (RO) of 
the Department of Veterans Affairs (VA) that denied the 
appellant's claim of entitlement to service connection for 
the residuals of a right index finger injury.  The Board 
remanded the case to the RO for additional development in 
June 2007; the case has now been returned to the Board for 
appellate review.

In February 2008, the appellant submitted additional evidence 
to the Board that pertained to his service connection claim.  
The appellant also waived review of the evidence by the 
agency of original jurisdiction, and therefore referral to 
the RO of evidence received directly by the Board is not 
required.  38 C.F.R. § 20.1304.


FINDING OF FACT

It is at least as likely as not that the appellant's right 
index finger injury was incurred during his active service.


CONCLUSION OF LAW

Resolving doubt in favor of the appellant, the criteria for 
service connection for the residuals of a right index finger 
injury have been met.  38 U.S.C.A. §§ 105, 1101, 1110, 5107 
(West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

In this decision, the Board finds that service connection is 
warranted for residuals of a right index finger injury, which 
represents a complete grant of the benefit sought on appeal.  
Thus, no discussion of VA's duties to notify and assist is 
required.

In adjudicating a claim, the Board determines whether (1) the 
weight of the evidence supports the claim or, (2) whether the 
weight of the "positive" evidence in favor of the claim is in 
relative balance with the weight of the "negative" evidence 
against the claim.  The appellant prevails in either event.  
However, if the weight of the evidence is against the 
appellant's claim, the claim must be denied.  38 U.S.C.A. 
§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990).

Service connection may be granted for a chronic disability 
resulting from a disease or injury incurred in or aggravated 
by active service.  38 U.S.C.A. §§ 1110, 1131.  A chronic 
disease listed in 38 C.F.R. § 3.309(a) (such as arthritis) 
will be considered to have been incurred in service if it is 
manifest to a degree of 10 percent or more one year following 
the date of separation from service even though there is no 
evidence of such disease during service.  38 C.F.R. § 3.307.

To establish service connection for a disability, symptoms 
during service, or within a reasonable time thereafter, must 
be identifiable as manifestations of a chronic disease or 
permanent effects of an injury.  Further, a present 
disability must exist and it must be shown that the present 
disability is the same disease or injury, or the result of 
disease or injury incurred in or made worse by the 
appellant's military service.  Rabideau v. Derwinski, 2 Vet. 
App. 141, 143 (1992); 38 C.F.R. § 3.303(a).  

For the showing of chronic disease in service there are 
required a combination of manifestations sufficient to 
identify the disease entity and sufficient observation to 
establish chronicity at the time, as distinguished from 
merely isolated findings or a diagnosis including the word 
"chronic."  Continuity of symptomatology is required only 
where the condition noted during service (or in the 
presumptive period) is not, in fact, shown to be chronic or 
where the diagnosis of chronicity may be legitimately 
questioned.  When the fact of chronicity in service is not 
adequately supported, then the showing of continuity after 
discharge is required to support the claim.  See 38 C.F.R. 
§ 3.303(b).  

Service connection may also be granted for any disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease 
occurred in service.  38 C.F.R. § 3.303(d).  

Review of the appellant's service medical records reveals 
that he underwent a service entrance examination in April 
1966; no findings pertaining to any right index finger 
disease or condition were made at that time.  In May 1967, 
the appellant underwent another examination and no mention 
was made of any right index finger condition.  The report of 
the December 1969 separation examination does not include any 
complaints or findings relative to any right index finger 
disorder.

Review of the appellant's service personnel records reveals 
that he had been assigned temporary duty as part of an 
advance party that established a Squadron Detachment at 
DaNang in the Republic of Vietnam.  This duty was for at 
least two months from December 1967 to February 1968.  The 
appellant has submitted documentation indicating that the 
DaNang airbase and the surrounding area came under enemy 
attack during the Tet Offensive at the end of January 1968.

Post-service, the appellant underwent a surgical procedure 
for the removal of a foreign body from the proximal phalanx 
area of his right index finger.  This procedure was performed 
at a private hospital in November 2000.

The appellant underwent a VA medical examination in May 2001.  
The appellant reported that he had had some shrapnel in a 
finger of his right hand that had caused a delayed infection.  
He said that he had undergone surgery for the removal of the 
shrapnel.  In another VA medical examination of his right 
index finger conducted that same month, the appellant 
reported that he had felt something tear into his right index 
finger while he was in combat in Vietnam.  He said that, in 
2000, he had had an acute swollen painful finger and that a 
small metal fragment had been removed from that finger.  On 
physical examination, the examination noted the presence of a 
scar over the proximal interphalangeal joint of the right 
index finger.  This location coincides with the location of 
the November 2000 surgery.

The appellant underwent another VA medical examination in 
October 2007.  After reviewing the claims file and examining 
the appellant, the examiner diagnosed residuals of an injury 
to the right index finger, to include a surgical scar.  The 
examiner opined that the current injury residuals were 
consistent with the appellant's description of a shrapnel 
injury in 1968.

The Board must determine whether the evidence supports the 
claim or is in relative equipoise, with the veteran 
prevailing in either event, or whether a fair preponderance 
of the evidence is against the claim, in which case the claim 
must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  
In this regard, it is the policy of the VA to administer the 
law under a broad interpretation, consistent, however, with 
the facts shown in every case.  When, after careful 
consideration of all procurable and assembled data, a 
reasonable doubt arises regarding service origin, such doubt 
will be resolved in favor of the veteran.  By reasonable 
doubt is meant one which exists because of an approximate 
balance of positive and negative evidence which does not 
satisfactorily prove or disprove the claim.

In determining whether an injury or disease was incurred or 
aggravated in service, the evidence in support of the claim 
is evaluated based on the places, types and circumstances of 
service, as shown by service records, the official history of 
each organization in which the veteran served, the veteran's 
medical records, and all pertinent medical and lay evidence.  
Even where there is a lack of official records to corroborate 
that an injury or disease was incurred or aggravated during 
service (including a period of combat), VA is required to 
accept as sufficient proof of service connection satisfactory 
lay or other evidence that an injury or disease was incurred 
or aggravated during such period of service, if the evidence 
is consistent with the circumstances, conditions or hardships 
of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. 
§§ 3.303(a), 3.304.

The appellant has reported that he incurred an injury to his 
right index finger while he was on temporary duty in DaNang 
in January 1968.  His service personnel records show that the 
appellant was on such temporary duty in DaNang in January 
1968.  The evidence of record also indicates that DaNang came 
under attack during the Tet Offensive of January 1968.  Thus, 
the appellant's report is consistent with his circumstances 
and conditions of service.

The Board is charged with the duty to assess the credibility 
and weight given to evidence.  Madden v. Gober, 125 F.3d 
1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 
(1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  
Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 
2001), the United States Court of Appeals for the Federal 
Circuit (Federal Circuit), citing its decision in Madden, 
recognized that that Board had inherent fact-finding ability.  
Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Further, the 
United States Court of Appeals for Veterans Claims (Court) 
has held that in adjudicating a claim, the Board has the 
responsibility to weigh and assess the evidence.  Bryan v. 
West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 
Vet. App. 614, 618 (1992).

Thus, the Board must assess the appellant's competence to 
report sustaining a right index finger injury during service, 
his report of having a piece of metal in his right index 
finger since that time, as well as his credibility.  See Barr 
v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. 
Nicholson, 19 Vet. App. 362, 368-69 (2005).  In Barr and 
Washington, the Court noted that a veteran is competent to 
testify to factual matters of which he had first-hand 
knowledge, and citing its earlier decision in Layno v. Brown, 
6 Vet. App. 465, 467-69 (1994), held that lay testimony is 
competent if it is limited to matters that the witness has 
actually observed and is within the realm of the personal 
knowledge of the witness; see also 38 C.F.R. § 3.159(a)(2).

In this capacity, the Board notes that the appellant is 
competent to report having had a foreign body enter his right 
index finger during service, as well as to report that said 
foreign object remained in his finger until it was surgically 
removed.  Layno, 38 C.F.R. § 3.159(a)(2).

In this regard, the Board notes that in Kowalski v. 
Nicholson, 19 Vet. App. 171 (2005), the Court, citing its 
earlier decisions in Swann v. Brown, 5 Vet. App. 229 (1993) 
and Reonal v. Brown, 5 Vet. App. 458 (1993), reaffirmed the 
proposition that, in evaluating medical opinion evidence, the 
Board may reject a medical opinion that is based on facts 
provided by the veteran that have been found to be inaccurate 
or that are contradicted by other facts of record.  Id. at 
179.  In Kowalski, however, the Court declared that the Board 
may not disregard a medical opinion solely on the rationale 
that the medical opinion was based on a history provided by 
the veteran, and instead must evaluate the credibility and 
weight of the history upon which the opinion is predicated.  
Id. In Coburn v. Nicholson, 19 Vet. App. 427 (2006), the 
Court, citing Kowalski, as well as Swann and Reonal, 
emphasized that the Board may not disregard a medical opinion 
solely on the rationale that the medical opinion is based on 
a history provided by the veteran.  Id. at 432-33.  Here, 
while the appellant's service medical records are silent 
concerning a right index finger injury, there is no evidence 
of record to establish that the appellant incurred the right 
index finger injury in some manner other than as the 
appellant has described in the record.  

Based on the above, the Board finds that the evidence is in 
equipoise as to whether the appellant currently has residuals 
of a right index finger injury that was incurred as a result 
of his service.  Consequently, reasonable doubt should be 
resolved in favor of the appellant and service connection for 
the residuals of a right index finger injury is warranted.


ORDER

Entitlement to service connection for the residuals of a 
right index finger injury is granted.



____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs