Citation Nr: 1017633 Decision Date: 05/12/10 Archive Date: 05/26/10 DOCKET NO. 99-05 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for left hand ulnar neuropathy with residual injury to the left ring and little fingers. 2. Entitlement to a rating in excess of 20 percent for post- operative residuals of palmar fibromatosis, right hand. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1970 to April 1972. These matters are before the Board of Veterans Appeals (Board) on appeal from an October 1998 rating decision by the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO). In November 1995 and April 1999, the Veteran appeared at hearings before a Decision Review Officer (DRO) at the RO. In September 2007 a Travel Board hearing was held before the undersigned. Transcripts of these hearings are associated with the Veteran's claims file. In January 2008, these matters were remanded for further development, to include VA examinations. FINDINGS OF FACT 1. The Veteran's left hand (left middle finger) injury in service was acute and transitory, and resolved; a chronic left hand disability was not manifested in service; there is no competent (medical) evidence that the current left hand ulnar neuropathy and flexor tendon laceration are related to service to include the injury reported therein. 2. The Veteran failed, without giving cause, to report for a VA examination scheduled in connection with his claim for an increased rating for post-operative residuals of palmar fibromatosis, right hand (and necessary to determine whether he is entitled to an increased rating). CONCLUSIONS OF LAW 1. Service connection for left hand ulnar neuropathy, with residual injury to the left ring finger and little finger is not warranted. 38 U.S.C.A. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655(2009). 2. The Veteran's claim seeking a rating in excess of 20 percent for post-operative residuals of palmar fibromatosis, right hand, must be denied because he failed (without good cause) to report for VA examinations scheduled to determine his entitlement to this benefit. 38 C.F.R. §§ 3.326(a), 3.655 (2009); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). Regarding the timing of VCAA notice in this matter, in Pelegrini v. Principi, 18 Vet. App. 112 (2004) the United States Court of Appeals for Veterans Claims (Court) has held that where notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing the notice prior to the initial AOJ adjudication; instead, the claimant has the right to timely content-complying notice and proper subsequent VA process. Here, the initial service connection adjudication preceded enactment of the VCAA. The Veteran was provided content-complying notice by a post-remand January 2008 letter. He was given ample time to respond; and the claims were subsequently readjudicated. See January 2010 Supplemental Statement of the Case (SSOC). The letter also provided the Veteran notice regarding the rating of disability as well as effective dates of awards (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006)). As to the claim for an increased rating, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The January 2008 letter provided such notice and the claim was thereafter adjudicated. See January 2010 SSOC. Regarding VA's duty to assist, all available pertinent medical evidence identified by the Veteran has been obtained. Pursuant to the January 2008 Board remand, the Veteran was scheduled for VA examinations to secure a nexus opinion (left hand disability) and determine the severity of the disability at issue (right hand). Information sought on examination was considered critical to the adjudication of the matters at hand. As was noted, he failed to report (and did not report any cause for the failure). Accordingly, the Board has no choice but to proceed as mandated by the regulation governing in such circumstance. VA's duty to assist the Veteran is met. Criteria, Evidence and Analysis Initially, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection: Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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 was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If a veteran engaged in combat, VA "shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service notwithstanding that there is no official record of such incurrence or aggravation . . . Service connection of such injury may be rebutted by clear and convincing evidence to the contrary." 38 U.S.C.A. § 1154. The Veteran alleges that during service he was stabbed in the left hand during combat, sustaining severe damage to his left little finger. His service treatment records (STRs) show that on November 7, 1970, he was seen for a laceration of his left third (i.e., middle) finger. The wound was sutured and dressed, and he was placed on light duty. He was seen daily for cleansing and dressing of the wound. On November 10, 1970, he complained of pain when the finger got wet. He returned to regular duty on November 15, 1970. His STRs do not contain any further mention of left hand injury/complaints/pathology. He was evaluated by a Medical Board prior to separation from service (due to right hand disability); there was no mention of left hand complaints or disability at the time. 1997 to 2010 VA treatment records include: A July 1998 (see volume 2 of the claims file) treatment report which notes loss of range of motion of the left small distal interphalangeal joint (DIP) secondary to trauma with decreased sensation. The Veteran gave a history of stab wounds to both hands during combat in service. An August 1998 VA examination (also volume 2 of the claims file), when examination of the left hand found an inability to flex at the DIP joint of the little finger; extension was full. Sensation was diminished. The diagnosis was left hand ulnar neuropathy and flexor tendon laceration; the examiner did not comment further regarding the etiology of the disability. A June 2007 (volume 5) treatment note which shows very minimal left sided weakness. (The record shows that the Veteran had been treated for a stroke.) A May 2009 (volume 5) treatment note which shows very minimal left sided weakness. The record shows that the Veteran has a left hand disability. Left hand ulnar neuropathy and flexor tendon laceration are diagnosed. It is also not in dispute that he was seen for a laceration of the 3rd finger on his left hand while in service. While the record does not show that the 3rd finger laceration injury in service occurred in combat, neither does it show that the injury was not sustained in combat. (The Veteran's decorations include a CIB, but not a Purple Heart Medal). Nevertheless, considering the relaxed evidentiary requirements afforded under 38 U.S.C.A. § 1154(b), solely for purposes of this decision the Board will concede that the left middle finger laceration injury occurred in combat. However, § 1154 does not establish a presumption of service connection for a current disability, the Veteran must still meet the evidentiary requirements, which include showing a nexus between the current disability for which service connection is sought and the injury in service. The Veteran's STRs reflect that his left 3rd finger laceration injury in service was acute and transitory, and resolved. It was sutured and dressed, and 8 days after he was first seen for the injury in service, he was returned to full duty, with no further follow-up or complaints noted in service. There is no contemporaneous evidence of postservice left hand complaints, findings, or treatment prior to 1998. Consequently, service connection for the claimed left hand disability on the basis it resulted from the injury in service based on continuity of complaints since that injury is not warranted. See 38 C.F.R. § 3.303(b). Hence, what the Veteran needs to establish service connection for his claimed left hand disability is competent (medical) evidence that relates such disability to the documented injury in service (or somehow otherwise to service). See 38 C.F.R. § 3.303. He has presented no such evidence. Notably, the Veteran failed, without providing cause, to report for an examination which was sought to secure a nexus opinion in this matter. In an original compensation claim, when entitlement to a benefit cannot be established or confirmed without a VA examination and a claimant, without good cause, fails to report for such examination, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. Consequently, under the governing regulation the Board is mandated to rely on the evidence of record which does not show a nexus between the Veteran's current left hand disability, ulnar neuropathy with residual injury to left ring and little finders, and an injury in service. In that regard it is also noteworthy that the laceration injury in service involved the left 3rd (or middle) finger while the current disability for which service connection is sought involves a laceration of the little finger (with ring finger involvement also). Because he is a layperson, the Veteran's own assertions attributing his current left hand disability to the injury noted in service are not competent evidence. As noted above, this is a medical question requiring medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Additionally, a lengthy time interval between service and the first postservice clinical notation of the disability for which service connection is sought is, of itself, a factor for consideration against a finding of service connection. See Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. Cir. 2000). To the extent that the Veteran reports he has had his current left hand pathology continuously since an injury in service, the Board finds such accounts compensation-driven, and simply not credible (given the conflicting contemporaneous evidence regarding the anatomical location of the laceration injury in service, and the absence of any postservice notation of the claimed pathology until some 26 years postservice). The preponderance of the evidence is against his claim. Therefore, the benefit-of -the-doubt doctrine does not apply; the claim must be denied. Increased rating: To assist the Veteran with the development of evidence to support his claim seeking an increased rating for post- operative residuals of palmar fibromatosis, right hand, the RO arranged for him to be scheduled for a VA examination in November 2009. He failed, without giving cause, to report for such examination. VA has a duty to assist the Veteran in the development of facts pertinent to his claim. See 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103, 3.159. VA's duty to assist includes arranging medical examinations where indicated by the facts and circumstances of the case. The Veteran has a concomitant duty to report for such examination. 38 C.F.R. §§ 3.326(a), 3.327(a). VA regulations also address the consequences of a failure to report for a scheduled VA medical examination and provide that in a claim for increase when entitlement to the benefit cannot be established or confirmed without a VA examination, and a claimant, without good cause, fails to report for such examination, the claim shall [emphasis added] be denied. 38 C.F.R. § 3.655.. The Board found that a contemporaneous examination was necessary to ascertain the Veteran's entitlement to the increased rating he seeks. Accordingly, the Board's remand sought development that included such examination. The record shows that the Veteran failed, without giving cause, to report for the scheduled VA examination. He was provided appropriate notice of the consequence of failure to report. Neither he, nor his representative, has alleged any cause for the failure to report. Under the governing regulation, 38 C.F.R. § 3.655 (b) which is dispositive, the Board has no recourse but to deny the appeal for an increased rating. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for left hand ulnar neuropathy, with residual injury to the left ring and little fingers is denied. The appeal seeking a rating in excess of 20 percent for post- operative residuals of palmar fibromatosis, right hand is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs