Citation Nr: 1300378 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 06-05 564 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for arthritis of both hands, to include as secondary to service-connected residuals of a right wrist fracture with traumatic arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1964 to May 1986 with earlier periods of active duty for training (ACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Waco, Texas VA Regional Office (that declined to reopen a claim of service connection for arthritis of both hands). In February 2009, the Board reopened the claim and remanded it for further development. In August 2010, the Board remanded the matter again, for an addendum medical opinion. In February 2012, the Board remanded the matter for a new medical opinion/examination. FINDING OF FACT Arthritis of either hand was not manifested in service, or in the first year following the Veteran's discharge from active duty, and the preponderance of the evidence is against a finding that such disability is related to his service or was caused or aggravated by his service-connected residuals of a right wrist fracture with traumatic arthritis. CONCLUSION OF LAW Service connection for arthritis of both hands, to include as secondary to residuals of a right wrist fracture with traumatic arthritis, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 of any information, and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A January 2006 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A March 2006 letter informed him of disability rating and effective date criteria. A March 2009 letter informed him of the requirements to establish secondary service connection. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in February 2007, April 2007, March 2009 (with November 2010 addendum), and July 2012. As will be discussed in greater detail below, the Board finds these examinations (cumulatively) to be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (as in effect before and after October 10, 2006). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b), added effective October 10, 2006. The addition of 38 C.F.R. § 3.310(b) effective October 10, 2006, does not affect the consideration or the outcome of this case. It was added to implement the decision of the Court in Allen v. Brown, 7 Vet. App. 439 (1995), and the holding in that case has been binding on VA from the time of issuance in 1995. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including in Virtual VA (VA's electronic database), with an emphasis on the evidence relevant to this appeal. 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. See 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 evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. The Veteran's theory of entitlement to the benefit sought in this appeal is primarily one of secondary service connection. He contends that a bilateral hand disability developed secondary to his service-connected residuals of a right wrist fracture with traumatic arthritis. In pertinent part, service connection has been established for residuals of a right wrist fracture with traumatic arthritis, rated 10 percent. As the Veteran has also advanced a contention that his bilateral hand disability may have begun during service and persisted, the Board will also address a direct (i.e., to service) causation theory of entitlement to service connection. The Veteran's STRs show injuries to the right wrist, the left first finger, and the right ring finger. In May 1970, he caught a softball on the tip of the right ring finger, causing the nail to turn back and a large ecchymosis to form on the distal phalanx. The wound was dressed and healed over the next two weeks. In June 1983, the Veteran reported that he was playing softball and attempting to catch a batted ball, which struck his left hand and caused pain and inflammation. A contusion and possible fracture of the first digit of the left hand were noted. X-rays were negative/normal. A short arm splint was applied and a possible ligament injury was noted. In October 1982, the Veteran fractured the right wrist; X-rays showed a chip fracture of the lunate bone, and a short arm cast was applied. On July 1985 service retirement examination and February 1986 service separation examination, the upper extremities were normal on clinical evaluation. On June 1986 VA orthopedic examination, the Veteran reported the onset of swelling in the fingers of both hands after he worked for one day; he reported that he noticed swelling of the hands after he worked using a hammer, and that the condition had persisted since that time. He reported that if he was inactive, he did not experience the pain and swelling in the fingers of both hands. X-rays of both hands were negative for any evidence of fracture, dislocation or other bony abnormality, and the soft tissue and joints were unremarkable. Following a physical examination, the diagnosis was history of swelling fingers of both hands following activity, cause undetermined. An October 1986 rating decision denied service connection for arthritis of multiple joints as not shown. A January 1988 Board decision denied an appeal of that determination. On February 2004 VA treatment, the Veteran complained of pain and swelling in his hand; swelling of the joints of the right little finger was noted. On March 2005 VA treatment, the Veteran reported that HCTZ caused his arthritis to worsen (stiffness and pain) due to his history of gout. On April 2005 VA treatment, X-rays of both hands showed severe degenerative joint disease of the distal interphalangeal joints of all five digits of each hand, as well as degenerative joint disease of the first metacarpal multangular joints, and mild degenerative joint disease of the right wrist. On May 2005 VA rheumatology consult, the Veteran reported hand pain with new complaints of his thumbs hurting; the assessments included characteristics of osteoarthritis including Heberden's and Bouchards nodules and primary CMC 1 pain, and the X-ray evidence of osteoarthritis. The rheumatologist opined that this was not inflammatory arthritis, given the history of no morning stiffness. On August 2005 VA rheumatology treatment, the Veteran was noted to have a medical history of gout and painful osteoarthritis, and of his right thumb occasionally being sore when writing; the assessment was osteoarthritis of the hands and CMCs, improved with steroid injections. On February 2007 VA joints examination, the Veteran reported that he fractured his right wrist playing basketball in service in 1981; he was in a cast for four to five months. He reported that when the cast was removed he had some stiffness but returned to duty and gradually regained full range of motion. He reported having some mild pain in his wrist upon separation from service in 1986. He reported that he did not work for 10 years, and then for the next 10 years he raised cattle. He reported that for about 10 years he had had severe pain in both thumbs, aggravated by repetitive motion. He then developed pain in the distal phalanges of his fingers as well as nodes on the distal joints of his fingers. He reported having constant pain, which had lessened about two years earlier; but he continued to have difficulty picking up objects and buttoning shirts due to stiffness in the distal phalanges of his fingers. The examiner noted that the Veteran had gout and had osteoarthritis of both wrists and fingers diagnosed by X-rays (which showed degenerative joint disease of the intraphalangeal joints of the fingers, of the first metacarpal phalangeal joint, and of the wrist). Following physical examination, the diagnoses included degenerative arthritis of the wrist, of the first metacarpophalangeal joint of the right thumb, and of the distal interphalangeal joints of all five fingers of the right hand. No opinion was offered regarding etiology. On April 2007 VA joints examination, the Veteran reported that he experienced moderate to severe mechanical right wrist pain and decreased grip strength in the right hand, which caused him to drop objects frequently. The examiner noted that the Veteran sustained a right lunate fracture in a fall while playing basketball in service in 1982, which was treated conservatively with a serial cast and immobilization for three months. Following a physical examination, the assessment was right wrist degenerative joint disease. The examiner opined that it is as likely than not that the Veteran's right wrist condition is related to his injury in service, noting that degenerative joint disease of the wrist is a common late sequelae of severe wrist sprain accompanied by lunate fracture. No diagnosis or opinion was offered regarding the hands. In a November 2007 statement, the Veteran related that he injured his right hand playing basketball in service and he injured his left hand playing baseball in service. He stated that mobility in both hands was very limited. In February 2009 the Board reopened the claim, finding that new and material evidence had been received, and remanded the matter to afford the Veteran a VA examination to determine whether his current arthritis of the hands is related to his service (or to his service-connected residuals of a right wrist fracture). On March 2009 VA examination, the examiner noted the injury to the Veteran's right wrist with a scaphoid fracture in service, stating that some X-rays indicated there were no fractures. The examiner also noted a softball injury to the fingers of the left hand while the Veteran was wearing a glove, with no fractures or known injuries other than the complaint of pain. The Veteran reported a 10 year history of pain in both hands as well as stiffness and decreased range of motion with pain in the right wrist, causing decreased grip and motion of both hands. The examiner noted a diagnosis of gout in the early 1990s. Following a physical examination, the diagnoses included degenerative joint disease of both hands especially the distal interphalangeal joints and less affected in the proximal interphalangeal joints; the examiner opined that "this is unrelated to right wrist injury ... this is also unrelated to gout." In its August 2010 remand, the Board noted that the March 2009 VA examiner did not address the question of direct service connection and also did not appear to have considered the Veteran's STRs in rendering an opinion. The Board remanded the claim for an addendum opinion. In a November 2010 addendum opinion, the March 2009 VA examiner noted that the claims file was reviewed and that an opinion was requested concerning any relationship between degenerative joint disease of the Veteran's hands and any event or injury in service. The March 2009 VA examiner opined that the arthritis of the Veteran's hands, primarily the interphalangeal joints of the fingers, is less likely than not related to any event or injury in service including the right wrist injury. He noted that "there was no documented injury to any finger joints or finger fracture" and there was only one complaint of left hand pain after playing baseball. He noted that there was no evidence of arthritic change in service. In its February 2012 remand, the Board found the November 2010 addendum opinion by physician's assistant J.M. to be inadequate, as it was premised on an inaccurate factual background, and did not address whether the service-connected right wrist disability aggravated arthritis of the hand/fingers. The Board remanded the claim for a complete medical opinion or a new VA examination. On July 2012 VA examination, the diagnoses included a June 1983 contusion to the right hand, osteoarthritis of both hands, and gout of both hands. The examiner noted the Veteran's claim of arthritis of both hands as directly related to his service, and specifically to the documented June 1983 left first digit injury that required splinting and extensive follow-up, or as secondary to the service-connected right wrist disability. The Veteran reported that his bilateral hand osteoarthritis had been treated conservatively since the March 2009 examination. He reported daily moderate to severe mechanical pain of all small joints of both hands. Following a physical examination, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness; the examiner noted that review of the Veteran's STRs revealed documentation of a July 1983 left hand X-ray series that were normal, and opined that it is more likely than not that his current bilateral hand condition is due to chronic degenerative changes associated with aging and/or gout. The examiner also opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or a result of the Veteran's service-connected condition; the examiner stated that a review of orthopedic literature reveals no credible, peer reviewed studies that support the contention that degenerative changes of one joint may induce degenerative changes in another joint either of the affected or contralateral extremity or spine, even in the setting of leg length discrepancy. The examiner opined again that it is more likely than not that the Veteran's current bilateral hand condition is due to chronic degenerative changes associated with aging and/or gout. The Veteran has also submitted VA treatment records showing findings similar to those on the VA examinations outlined above. It is not shown that arthritis of either hand was manifest in service and persisted, or was manifested in the first postservice year. The Veteran's STRs do not contain any evidence of persistent complaints pertaining to the hands during service, or any evidence of treatment or diagnosis of arthritis of both hands during service. His injuries sustained playing softball were acute, and resolved. A suspected left first digit fracture was not confirmed by x-ray. There is also no evidence of postservice continuity of hand complaints; by the Veteran's own accounts, such complaints began in approximately 1997 (10 years prior to the February 2007 VA examination, and more than 10 years after service). Post service evaluation/treatment records provide no indication that any bilateral hand disability may somehow be directly related to the Veteran's service. Accordingly, service connection for arthritis of both hands on the basis that such was incurred or aggravated in service, or on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C.A. §§ 1112, 1137), is not warranted. Inasmuch as any reports of longer-existing bilateral hand complaints or symptoms are inconsistent with, and contradicted by, the Veteran's own accounts on examination regarding the onset of such problems, such reports are deemed obviously self-serving, and the Board finds them not credible. The preponderance of the evidence is also against the Veteran's alleged secondary service connection theory of entitlement to the benefit sought. On July 2012 VA examination (the report of which the Board found adequate and probative), the examiner opined that the Veteran's bilateral hand complaints are unrelated to his service-connected residuals of a right wrist fracture with traumatic arthritis. The provider noted the history of the claimed disability, and explained the rationale for the opinion. The examiner provided further rationale for the opinion by identifying other etiological factors for the bilateral hand complaints, including chronic degenerative changes associated with aging and/or the Veteran's known diagnosed gout. The examiner noted that a review of generally accepted medical literature found no support for the Veteran's alleged theory of causation. The Board finds this evidence highly probative in the matter at hand. Because there is no competent (medical opinion/treatise) evidence to the contrary, the Board finds the February 2012 VA examiner's opinion to be persuasive. Regarding the Veteran's own opinion that his bilateral hand disability is due to his service-connected residuals of a right wrist fracture with traumatic arthritis, he is a layperson (with no demonstrated or alleged expertise in determining whether there is a nexus between arthritis of one joint with that of other joints); does not offer any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion. Therefore, his opinion on this question of causality (which is medical in nature and beyond lay observation) has no probative value. See Jandreau, supra, at 1372, 1377. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for arthritis of both hands. Accordingly, it must be denied. ORDER Service connection for arthritis of both hands, to include as secondary to service-connected residuals of a right wrist fracture with traumatic arthritis, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs