Citation Nr: 1237705 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 10-47 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for residuals of a right hand laceration. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from June 1955 to July 1959, and from October 1961 to September 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In April 2011, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge at the RO. A transcript of the hearing is of record. The Board remanded the case for further action by the originating agency in August 2011. The case has now returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Residuals of a right hand laceration, consisting of posttraumatic scarring of the volar aspect of the right hand and a retained foreign body at the distal right fifth metacarpal, are etiologically related to active duty service. CONCLUSION OF LAW Residuals of a right hand laceration, consisting of posttraumatic scarring of the volar aspect of the right hand and a retained foreign body at the distal right fifth metacarpal, were incurred during active duty service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for residuals of a right hand laceration as the injury occurred during active duty service. He testified in April 2011 that in 1959, while serving aboard the USS Brinkley Bass, he cut his hand with a knife while repairing a cut cable. The laceration required a visit to sick bay and multiple stitches. The Veteran also testified that his current symptoms of pain, numbness, and weakness in the right hand are related to the in-service injury. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The record clearly demonstrates the presence of a current disability. A November 2009 X-ray of the Veteran's right hand showed a small three millimeter (mm) foreign body in the soft tissue of the right hand at the level of the distal fifth metacarpal bone. The presence of the foreign body and posttraumatic scarring of the volar aspect of the hand were confirmed on a March 2010 MRI (magnetic resonance imaging) performed at a private facility. Treatment records from the Wichita VA Medical Center (VAMC) have documented findings of scarring and a retained foreign body in the right hand throughout the claims period. Service records also contain evidence in support of the Veteran's claim. The June 1955 enlistment examination is negative for documentation of a pre-existing right hand scar or injury, and service treatment records do not record treatment for a right hand laceration. However, a past minor laceration of the right hand was noted on an October 1961 examination report with no current complications or sequelae. The September 1962 separation examination report also includes a finding of a four-inch right hand scar. The Veteran credibly testified that his hand was cut during active duty service in 1959, and personnel records verify that he was stationed aboard the USS Brinkely Bass during the first six months of 1959. The Board finds that the record contains sufficient evidence to establish the in-service incurrence of a right hand laceration during service that resulted in chronic posttraumatic scarring and a retained foreign body. In this regard, the retained foreign body is located at the distal right fifth metacarpal, which is not in the immediate area of the laceration. However, there is no competent medical evidence which provides a basis for dissociating this retained foreign body from the Veteran's inservice hand laceration (the Board notes, however, that the retained foreign body has been dissociated from the Veteran's degenerative joint disease of his right distal interphalangeal joints, see August 2011 VA examination report). Therefore, affording the Veteran the benefit of all doubt, the evidence is at least in equipoise, and the retained foreign body at the distal right fifth metacarpal is found to be a residual of the Veteran's hand laceration. Service connection is therefore granted for these residuals of the right hand laceration, specifically, posttraumatic scarring and a retained foreign body at the distal fifth metacarpal. As a final matter, the Board notes that the grant of service connection in this case is limited to the residuals of a right hand laceration consisting of posttraumatic scarring and a retained foreign body in the in the distal right fifth metacarpal. In this regard, the Veteran has received treatment for swelling and numbness in the right hand since November 2009, however, the competent medical evidence of record (including the August 2011 VA examination) consistently relates these symptoms to sensory neuropathy, mild carpal tunnel syndrome, and degenerative joint disease, and the competent evidence does not establish that these conditions are residuals of the inservice right hand laceration. Specifically, VA treatment records clearly show that the Veteran began to complain of numbness and pain in the right hand in November 2009 following a fall with trauma to his right shoulder a month earlier. Various diagnoses were considered to account for the Veteran's hand symptoms, including cellulitis, chronic regional pain syndrome, and Martin-Gruber anastomosis. After various forms of treatment and medication, he was found to experience carpal tunnel syndrome, sensory neuropathy, and arthritis. These diagnoses were confirmed by a VA examiner in September 2011. The August 2011 VA examination report shows that the examiner indicated that the Veteran's claims file had been reviewed. The diagnoses were sensory neuropathy of the right hand, and mild carpal tunnel syndrome. The examiner stated that the Veteran's sensory neuropathy of the right hand, and his mild carpal tunnel syndrome, were unrelated to an inservice injury, and concluded that it was less likely as not that these conditions were incurred in, or caused by, the claimed inservice injury. The examiner explained: the Veteran received stitches for his hand in 1959, and would occasionally have pain in his hand. He sustained an injury to his right shoulder in 2009 after a fall. He has significant degenerative changes in his cervical spine with possible right upper extremity radicular symptoms, chronic right shoulder rotator cuff damage, and degenerative arthropathy, status post distal clavicle resection several years ago. In 2010, he had a diagnosis of sensory neuropathy, secondary to swelling of the right hand with mild right carpal tunnel syndrome. He also has Martin-Gruber anastomosis. There is no evidence of ulnar nerve entrapment, and no clinical evidence to support radiculopathy. The examiner concluded that due to the length of time without medical care for his hand until 2010, some 41 years later, and the severe onset of his symptoms after his fall in 2009, that his right hand condition (i.e., sensory neuropathy of the right hand, and his mild carpal tunnel syndrome) are not related to his inservice injury, and are less likely as not related to his inservice injury. Finally, the examiner stated that the Veteran's DJD (degenerative joint disease) of his right DIP (distal interphalangeal) joints is not due to his service, and that it is age-related. The examiner noted that DJD has also appeared in other areas of his body (his spine and other peripheral joints). Based on the foregoing, the Board finds that the preponderance of the evidence is against a conclusion that the Veteran's right hand sensory neuropathy, carpal tunnel syndrome, and degenerative joint disease of the right distal interphalangeal joints, are related to his service. To this extent, the appeal is denied. The Board has considered the testimony of the Veteran connecting his neurological symptoms, pain, swelling, and weakness to his in-service injury, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but notes that the his statements for treatment purposes clearly date the onset of hand complaints to a fall involving his right shoulder in October 2009, more than 45 years after his separation from active duty service in September 1962. His opinion as to the cause of the current right hand symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). As there is also no competent medical evidence in favor of a link between the Veteran's carpal tunnel syndrome, sensory neuropathy, and arthritis, and his inservice right hand laceration, the award of service connection in this case is limited to the findings of scarring and a retained foreign body in the right hand. II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). It does not appear that the Veteran has been given VCAA notice. However, the Board finds that there has not been any prejudice to the Veteran. Specifically, the Board has granted his claim, although the scope of the service-connected right hand disability is limited. In addition, the appellant has submitted a considerable amount of argument and evidence, and in April 2011, he was afforded a hearing. Furthermore, the appellant's representative has addressed what is needed to establish the service-connected claim in an October 2012 brief. These actions by the Veteran, and his representative, indicate actual knowledge of the evidence necessary to substantiate the claim, as well as the right to submit additional evidence and of the availability of additional process. As both actual knowledge of the Veteran's procedural rights, and the evidence necessary to substantiate the claim, have been demonstrated and he, or those acting on his behalf, have had a meaningful opportunity to participate in the development of his claim, the Board finds that no prejudice to the Veteran will result from proceeding with adjudication without additional notice or process. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), reversed and remanded on other grounds sub nom, Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Finally, it appears that all relevant evidence has been obtained. Id. The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's service treatment reports, and his VA and non-VA medical records. The Veteran has been afforded an examination, and an etiological opinion has been obtained. Therefore, the evidence does not show that the error affected the essential fairness of the adjudication. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Entitlement to service connection for residuals of a right hand laceration, consisting of posttraumatic scarring of the volar aspect of the right hand and a retained foreign body at the distal right fifth metacarpal, is granted. ____________________________________________ T. STEPHEN ECKERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs