Citation Nr: 1035569 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 06-08 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a bilateral hand disability, to include as secondary to service-connected disabilities of the left lower extremity and cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from September 1969 to September 1971, and from March 1975 to February 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The record reflects that the Veteran submitted additional evidence to the Board accompanied by a waiver of initial review by the agency of original jurisdiction. See 38 C.F.R. § 20.1304. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT A bilateral hand/wrist disability is not shown to be etiologically related to service, or any incident therein, to include as secondary to service-connected disabilities of the left lower extremity and cervical spine. CONCLUSION OF LAW The criteria for service connection for a bilateral hand/wrist disability, to include as secondary to a service-connected disability, have not been met. § 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability; the degree of disability, and the effective date of any disability benefits. The appellant must also be notified to submit all evidence in his possession, what specific evidence he is to provide, and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in December 2003, prior to the appealed from rating decision, along with the correspondence provided in March 2006 and April 2008, fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the type of evidence necessary to establish disability ratings and effective dates for the disabilities on appeal. While notice of the type of evidence necessary to establish disability ratings and effective dates for the claims on appeal was not provided until March 2006, after the rating decision that is the subject of the current appeal, this error is harmless because readjudicating the claims in the November 2006 and February 2009 supplemental statements "cures" this timing problem. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. The Board also finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. The Veteran was afforded VA examinations in April 2008 and May 2009. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the claims file was reviewed by the examiners and the examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be sufficient. Thus, the Board finds that a further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issues on appeal. Service Connection The Veteran seeks service connection on both direct and secondary bases. He contends that the bilateral hand disability stems from several injuries/falls incurred while on active duty in 1969 and 1976. Alternatively, he asserts that his service-connected left ankle/hip/knee disabilities cause him to lose balance and fall on his hands, which results in further injury to his wrists. See VA Form 21-4138, July 2010. Finally, the Veteran asserts that any neurological manifestations of his bilateral hand/wrist disability are secondary to his service-connected cervical spine disability. Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). As noted above, the Veteran also asserts that service connection should be granted on a secondary basis. Indeed, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a)(2009). Secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The first question for consideration in evaluating a service connection claim is whether the competent evidence demonstrates a current disability. In this regard, VA treatment records dated from 2001 to the present show consistent complaints of burning pain, numbness, tingling, and decreased strength in both hands. An April 2008 VA examination confirmed a diagnosis of bilateral hand axonal sensory motor peripheral neuropathy. Based on the foregoing, the first element of a service connection claim has been satisfied. With respect to in-service incurrence of an injury, service treatment records show that the Veteran strained both wrists while on active duty in 1976. Notably, physical examination of the wrists was within normal limits. Separation examination in January 1976 noted the bilateral wrist strain; however, contemporaneous X-rays of the hands and wrists revealed no evidence of fracture, dislocation, nor other abnormalities. Following service, a VA examination conducted in November 1981 showed subjective complaints of wrist weakness and wrist pain when doing push-ups. However, the examiner found no objective evidence of weakness or sensory disturbance in either hand. The diagnosis was history of sprain, both wrists. No further treatment referable to the hands or wrists is noted until December 2000. At that time, VA records reflect that the Veteran sustained neck and hand injuries in a fall when his service-connected left ankle gave out on him. The Veteran reported that he put his hands out to break the fall; he stated that his wrists were fine but that his fingers were stiff. Objectively, there was no noticeable swelling or eccymosis of the wrists or fingers; the metacarpal joints were tender; and he had full range of motion of the hands. The diagnosis was contusion to the right hand. A January 2001 VA treatment note shows that the Veteran reported a four to five month history of shooting pain down the right arm and into the right middle and ring fingers. He also reported numbness and tingling in this right fingertips, predominately in the C6 and C7 distribution. Radiologic evaluation revealed multilevel degenerative disease, with significant stenosis at the right C5-6, C6-7 levels. The diagnosis was right C5 and C6 radiculopathy. The Veteran elected to undergo a cervical diskectomy and fusion. VA treatment records dated in June 2001 show that the Veteran was diagnosed with diabetes mellitus. VA outpatient treatment records dated from 2002 to 2004 show consistent complaints of hand pain and diagnoses of peripheral neuropathy. A December 2004 VA treatment note shows that that the Veteran was diagnosed with peripheral neuropathy secondary to long-standing diabetes. It was noted that his diabetes was well controlled with recent weight loss. A May 2005 VA treatment report shows that the Veteran complained of burning pain in his hands. It was noted that he had previously experienced similar pain in his feet, which was thought to be due to diabetic neuropathy. Objective examination revealed mild loss of fine touch and temperature sensation. The posterior hands were normal. Notably, sensation was normal above the wrists. The impression was diabetic neuropathy (good control with high dose narcotics) and atypical hand pain. The physician noted that his symptoms did not appear to be consistent with either a "length dependent neuropathy," or an ulnar/radial/median nerve problem. A March 2005 VA treatment note shows that the Veteran continued to report hand and foot burning pain, aggravated by cold temperatures and walking. The assessment was diabetes mellitus, diet controlled, and hand and foot neuropathy. A December 2005 VA treatment note shows that the Veteran's left leg gave out on him and he fell to the floor. There was no indication that injuries to the hand or wrist were sustained at that time. VA outpatient treatment records dated throughout 2006 show continued treatment for peripheral neuropathy of the hands and feet. Upon VA examination in April 2008, the Veteran reported that his left leg gave out on him in 2000, and that he fell forward, striking both of his hands on the concrete. After that incident, he complained of burning and stinging in his hands. Several weeks after the fall, he apparently developed numbness in his left arm. He was then diagnosed with a vertebral condition which resulted in a cervical fusion, and thus resolved the left arm numbness. Objective examination of the bilateral hands revealed variable tenderness (described as sensitivity and burning) on the palmar surface of the hands and fingers. There was no effusion, edema, redness, abnormal movement, instability, ankylosis, or atrophy. Monofilament testing was mildly decreased for all fingers and thumbs. Triceps, biceps, and brachioradialis reflexes were all 2 out of 4. The examiner provided a diagnosis of axonal sensory motor peripheral neuropathy of the bilateral hands and feet. He opined that this condition was not caused by or the result of his service-connected left ankle condition, or falls secondary thereto. He explained that while neurological evaluation established no specific etiology for the condition affecting the hands and feet, diabetes was likely suspected. He further stated that there was no medical indication that the condition was caused by a traumatic injury to the cervical spine or direct trauma to the hands. An addendum to the April 2008 VA examination was obtained in May 2009. At that time, the examiner was asked to comment on the follow: (1) whether there was a causal relationship between the hand disabilities and any incident in-service, including the 1976 wrist sprain; (2) whether any hand disabilities were caused or aggravated by left ankle/hip/knee/cervical spine conditions; and (3) whether any neurological condition was caused or aggravated by the service-connected cervical spine disability. The examiner opined that there was no causal relationship between the hand disability (i.e., diabetic axonal symmetrical peripheral polyneuropathy) and the 1976 in-service injury to the wrists. He pointed to the lack of ongoing symptoms or treatment after service. He also stated that polyneuropathy is not caused by wrist sprains and that the condition developed many years after service. The examiner also opined that the diagnosed hand disability was not caused or aggravated by left ankle/hip/knee/cervical spine conditions. He reasoned axonal peripheral neuropathy is caused by a systemic illness affecting bilateral upper or lower extremities. He noted that while the Veteran's diabetes is currently under good control, symptoms of neuropathy persist in both the hands and feet. The examiner also stated that there was no evidence that the hand disability was aggravated by the fall in 2000, or by lower extremity or cervical spine conditions. Finally, the examiner opined that the diabetic axonal symmetrical peripheral polyneuropathy was most likely caused by Type II diabetes. He reasoned that the Veteran's cervical radiculopathy resolved with the January 2001 cervical spine fusion, and that there were no current symptoms or objective findings compatible with right cervical radiculopathy. He also discounted the possibility of aggravation. A July 2010 letter from the Veteran's primary care physician, Dr. Olson, indicates that the Veteran has longstanding peripheral neuropathy of his hands, "dating back at least 10 years." He stated that his pain had been aggravated periodically by instance of overuse and by several falls. He further noted that extreme temperatures worsened his symptoms. Direct Service Connection On the question of direct service connection, the Veteran's service treatment records show one-time treatment/complaints for an acute and transitory wrist strain in January 1976. This was subsequently noted on the Veteran's separation examination, which was also dated in January 1976. However, the examiner expressly noted that contemporaneous X-rays showed no residual evidence of fracture, dislocations, other significant abnormalities and that the diagnostic impression was "normal." Thus, such records do not demonstrate that any chronic disability of the bilateral wrists was incurred during active duty. This does not in itself preclude a grant of service connection. Indeed, service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Nevertheless, a review of the post- service evidence does not lead to the conclusion that the current wrist/hand problems are causally related to active service. Indeed, the Board has considered the voluminous post-service medical evidence of record, which largely consists of VA outpatient treatment records and VA examinations. Such evidence does not demonstrate any objective findings referable to the wrists or hands until December 2000, at which time the Veteran fell and suffered a contusion to the right hand. Furthermore, cervical radiculopathy of the upper extremities (which subsequently resolved with a cervical spine fusion) was not diagnosed until January 2001; and peripheral neuropathy of the hands was not shown until 2002. In the absence of demonstration of continuity of symptomatology, this is too remote from service to be reasonably related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the Board acknowledges that the Veteran endorsed wrist weakness upon VA examination in November 1981; however, objective examination found no evidence of weakness or sensory disturbances in either hand. Moreover, the Veteran underwent subsequent VA examinations in March 1995 and March 2000, neither of which showed complaints or treatment for bilateral hand or wrist problems. Thus, the first objective evidence of a wrist/hand disability is not shown until December 2000, more than 20 years after separation from service. Notably, the Veteran testified that his wrist pain "went away" after the initial strain in 1976; that he did not seek further treatment for the wrist strain during service; and that he did not have any wrist symptomatology until he fell down in his apartment in December 2000. See Hearing Transcript, p. 20. In addition to the lengthy absence of treatment for hand/wrist problems following service, no competent evidence of record causally relates the currently diagnosed axonal peripheral neuropathy to active duty. In fact, the VA examiner in April 2008 expressly opined that the hand disability (diagnosed as axonal sensory motor peripheral neuropathy) was not caused by direct trauma to the hands. Upon further clarification in May 2009, the VA examiner stated that there was no causal relationship between the currently diagnosed bilateral hand disability and the 1976 in-service injury to the wrists. As noted above, this opinion was accompanied by sound rationale and was rendered after a comprehensive review of the claims file and the Veteran's medical history. Thus, it is considered to be highly probative as to the issue of etiology. Notably, there are no other medical opinions to the contrary contained in the record, and the Veteran's private physician did not comment on this point. In the present case, there is no dispute that the Veteran sustained bilateral wrist strain during service. However, the competent evidence does not tend to establish that such injury resulted in chronic disability to which his current diagnosis is causally related. Indeed, the VA examiner reached the opposite conclusion. For the reasons already explained, his opinion is found to be probative. Therefore, service connection for a bilateral hand/wrist disability is not warranted on a direct basis. Secondary Service Connection Service connection is also not warranted on a secondary basis. Again, the Veteran asserts that his hand disability is aggravated by his service-connected left lower extremity disabilities to the extent that his left ankle/hip/knee give out and cause him to fall on his hands. He also asserts that the hand disability is caused or aggravated by the service-connected cervical spine disability (status post fusion). In this case, at the July 2007 Travel Board hearing, the Veteran testified that his hand symptomatology was not due to neuropathy; he also denied ever having been diagnosed with diabetes. See Hearing Transcript, pp. 7-9. However, the medical record is clear. The Veteran has a longstanding history of diabetes mellitus, which has been successfully controlled by diet and weight loss since 2001/2002. The record also shows numerous diagnoses of bilateral hand and foot neuropathy, which have been confirmed by VA examinations. The question of whether one disease caused/precipitated another disease or disorder of the human body is a question on which the only probative evidence would be competent medical evidence. A claimant like the Veteran, who is without medical training or expertise, is not qualified to state a medical opinion on a question requiring medical judgment, such as a question of medical diagnosis or medical causation. 38 C.F.R. § 3.159(a) (2006); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the Veteran may believe that his hand symptomatology is not due to neuropathy or diabetes, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical etiology. In this regard, there is no competent medical evidence showing that the Veteran's service-connected left ankle/leg/hip or cervical spine disabilities caused his diabetic axonal symmetrical peripheral polyneuropathy. In fact, the April 2008/May 2009 VA examiner found the opposite. He opined that the current hand disability was not caused or aggravated by left ankle/hip/knee or cervical spine disabilities, but rather it was most likely due to Type II diabetes. He also noted that the Veteran's cervical radiculopathy resolved after the January 2001 C5-C6/C-7 fusion, and that there was essentially no currently diagnosed neurological condition that was a manifestation of the service-connected cervical spine disability. Because the VA examiner's opinion was offered following a review of the claims file and after a thorough objective examination, his conclusions are found to be highly probative. Moreover, his opinion is consistent with other medical evidence of record, including various VA outpatient treatment records dating back to 2005. The Board acknowledges that Dr. Olson, the Veteran's primary care physician, submitted a letter in July 2010 indicating that the longstanding peripheral neuropathy was aggravated by periodically by overuse and "several falls." However, no rationale for the opinion was provided. Moreover, while the physician indicated that the Veteran had fallen on several occasions, he entirely failed to identify any service-connected condition that would cause such falls. For all of these reasons, the Board affords this statement little probative weight. Overall, the competent evidence of record does not show that the Veteran's currently diagnosed axonal symmetrical peripheral polyneuropathy is proximately due to or the result of his service-connected left ankle/hip/knee or cervical spine disabilities. As such, there is no basis for a grant of secondary service connection here. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a bilateral hand disability, to include as secondary to service-connected disabilities of the left lower extremity and cervical spine, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs