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