Citation Nr: 1300400 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-21 971 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for osteoarthritis of the first metacarpophalangeal (MCP) joint on the left hand. 2. Entitlement to service connection for nerve damage of the left hand. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from August 1951 to July 1953. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision, which denied service connection for osteoarthritis of the left first MCP joint and for nerve damage to the left hand. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2012. A transcript of this hearing has been associated with the Veteran's VA claims folder. These issues were remanded by the Board for further development in an April 2012 determination. 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). FINDINGS OF FACT 1. Osteoarthritis of the first MCP joint on the left hand is not shown by the evidence of record to have manifested within 1 year of discharge from service, nor is osteoarthritis of the first MCP joint on the left hand shown by the most probative evidence of record to be etiologically related to a disease, injury, or event in service. 2. Nerve damage of the left hand is not shown by the most probative evidence of record to be etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. Osteoarthritis of the first MCP joint on the left hand was not incurred in active service, and may not be presumed to have been incurred in active service. See 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. Nerve damage of the left hand was not incurred in active service. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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. A VCAA letter dated in February 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. This letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, this letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA and private medical records are in the file. The Board notes that the Veteran submitted 2 separate Authorization and Consent to Release Information forms in May 2012 along with some private medical records. However, in a July 2012 Report of General Information, the Veteran indicated that he was not requesting through these release forms that VA go to the providers for additional information, as he had already sent all available records. Therefore, the Board finds that all records identified by the Veteran as relating to these claims have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided VA examinations for his claims in July 2012. The examiner reviewed the claims file, noted the Veteran's assertions, and examined him thoroughly. The Board finds these examination reports and opinions to be thorough and complete. Therefore, as will discussed in further detail below, the Board finds these examination reports and opinions are sufficient upon which to base a decision with regard to these claims. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The examination reports also substantially comply with the remand directives which asked the examiner to opine whether the claimed disabilities began in or were related to active service. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 (West 2002). 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) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran contends that he has osteoarthritis of the first MCP joint of the left hand and nerve damage of the left hand due to an in-service injury. Specifically, he has related that the injury occurred when an officer threw a simulated artillery shell at him. The Veteran asserted that he put his hand up, and it hit his hand and exploded. The Veteran related that it dislocated his left thumb, split the webbing between his thumb and forefinger, and cut a deep gash along the base of his little finger. His hand also burned from the flash powder in the bomb, and he had nerve pain. He related that the dislocated thumb was popped back into place, and his hand was wrapped with a bandage at the company aide station rather than stitched. The medic suggested he go to the hospital, but the captain encouraged him not to go to the hospital, as this would cause the Veteran to forfeit his schooling and be demoted to a private E-2. The Veteran has asserted that the original injury was made worse when he was stationed in and fought in Korea. The Veteran has contended that he always had problems after his discharge but mostly took Tylenol. The Board notes that the Veteran's wife has reported that, when she met the Veteran more than 42 years earlier, he complained of numbness and lack of feeling in his left hand, and the problem has progressed. The Veteran's service treatment records confirm that he was treated for second-degree burns of the left hand on February 7, 1952. His treatment included a Vaseline bandage and penicillin. This injury was examined again on February 9, 12, and 14, of 1952. No further complaints regarding the left hand were documented in the service treatment records, to include the July 1953 discharge examination. In a June 1966 Certificate of Attending Physician, a physician noted that the Veteran went to the emergency room on March 18, 1965, after an automobile accident, which resulted in a one-inch laceration of the left middle finger. An x-ray report of the left hand revealed that no evidence of injury could be seen in the hand. The Board notes that the Veteran underwent a VA examination in May 2009. The Veteran reported that in February 1958, he was doing combat training, when he had a simulated artillery shell coming at him. He put his hand up to block it, and it exploded on his hand. Service treatment records reflect that he was treated for a burn to his left hand. However, the Veteran reported that he also dislocated his thumb and had a laceration in the space between the thumb and the index finger and also at the base of the fifth digit of the left hand. Upon examination, the Veteran was diagnosed with osteoarthritis of the left first MCP joint. The examiner stated that he could not resolve without resorting to mere speculation the question of whether the Veteran's osteoarthritis of the first MCP joint of the left hand was caused by in-service trauma. In support of this conclusion, the examiner noted that it had been more than 50 years since the in-service injury; that there was evidence of a burn to the left hand between the thumb and index finger; that there was no scar from laceration in that area; and that there was some evidence of hypertrophy, indicating that there was likely arthritis of the first MCP. However, since more than 50 years had passed since that injury, that arthritis did not necessarily correlate to the injury in the left hand in 1952. A June 2011 private medical record Internal Medicine Associates of St. Johns County, PA, indicated that neuropathy of the left ulnar nerve should be considered. A September 2011 private medical record from Dr. D diagnosed the Veteran with left carpal tunnel syndrome with left trigger thumb and noted that the Veteran underwent left carpal tunnel release with A1 pulley release left thumb. In July 2012, the Veteran underwent another VA examination. The Veteran reported that a bomb was thrown at him in basic training and blew up in his hand. The Veteran reported that he was sent to the clinic and bandaged instead of being sent to the hospital for stitches. Upon review of the claims file and examination of the Veteran, the examiner determined that the Veteran's left thumb MCP osteoarthritis and trigger thumb less likely as not (less than 50/50 probability) began in or were otherwise the result of his active service, to include the February 1952 in-service injury of the left hand. The examiner noted that a claims file review of the original incident on February 7, 1952, indicates a second-degree burn to the Veteran's left hand, which is consistent with the treatment [cleaning/dressing; burns do NOT generally get "stitched up", as the Veteran claims should have been done]. The examiner noted that current examination revealed a small area [< 2 centimeters] of slightly hyperpigmented skin in the dorsal web space between the thumb and the index finger consistent with the burn history. There was no documentation of residuals after the incident [in particular, a dislocated left thumb MCP joint which the Veteran claimed occurred], and the Veteran reported that his left thumb position/alignment looked normal after the incident. A dislocated thumb MCP joint would have caused abnormal angulation between the finger bones and metacarpal bones, which would have been quite obvious to anyone and duly noted in the records. The July 1953 Report of Medical Examination was silent for the claimed conditions. In fact, the July 2005 VA examination [53 years after the incident] was still silent for the claimed conditions. The examiner noted that the left thumb MCP osteoarthritis is not unusual with aging, particularly in dominant/primarily used hands [the Veteran is left-handed], and also in light of occupational history [welder for approximately 14 years, electrician for 23 years]. The examiner noted that trigger fingers is a condition involving the tendon sheath that surrounds the tendon in the affected finger; resulting after repeated inflammation, likely related to repetitive motions, occupation, and daily activities, with contribution from the MCP arthritis. There is no sound scientific basis for any relationship to the skin burn in 1952. The Veteran also underwent a VA peripheral nerve examination in July 2012. The Veteran asserted that he had decreased sensation in the left fingers, particularly the little finger, and difficulty with prolonged writing. He reported that his claimed symptoms started in active duty after the incident in February 1951 when he deflected a bullet or a bullet exploded in his hand. The examiner noted that there is no record of the Veteran claiming this claimed condition or seeking medical evaluation for this claimed condition after separation until he underwent surgery for carpal tunnel syndrome release in 2011. Upon review of the claims file and examination of the Veteran, the examiner determined that the Veteran's left hand nerve condition is less likely as not (less than 50/50 probability) the result of his active service to include the February 1952 in-service injury of the left hand. The examiner noted that a review of the original notes for the February 1952 incident is silent for nerve damage. The July 1953 Report of Medical Examination and July 2005 VA examination were both silent for the claimed condition. The Veteran's wife reported in 2012 that the Veteran had been complaining of numbness in his left hands since 42 years prior, which is approximately 1970 [17 years after separation]. Although the Veteran reports that he has always had numbness since active duty, there is no objective confirmation of that in any documentation available for review. In light of inconsistencies in reported history of the actual incident [raising question of validity] and the long interval since that incident [natural limitations to memory], it would be prudent to depend on objective documentation rather than current accounts. The examiner noted that there is no known scientific reason for a skin burn [healed, without skin contracture or involvement of deep structures] to cause nerve conditions many years later. In addition, the burn is located on the dorsal web space between the thumb and index finger, which is anatomically quite distant from the carpal tunnel [opposite side of the hand, in the midline wrist area], further decreasing the likelihood of any relationship. In a December 2012 statement, Dr. D, who operated on the Veteran's left hand, indicated that, at this time, he cannot establish a link back to the Veteran's military service without earlier medical records. During the Board hearing, the Veteran testified that his hand was burned in service and the webbing between his thumb and forefinger was split. His hand was wrapped and to this day he had virtually no feeling on the right side of his hand. He reported that his hand healed up and he did have use of the hand but it worsened as the years passed. He eventually had surgery on the carpal tunnel and his thumb. The doctor informed him that the carpal tunnel caused his hand to go numb and surgery was required to avoid having the situation become permanent. The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the issues on appeal during the hearing and testimony was obtained concerning the injury in service and symptoms thereafter. Information concerning treatment was also obtained. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As an initial matter, the Board notes that there is no competent medical evidence of record reflecting that the Veteran demonstrated arthritis of the first MCP joint on the left hand to a compensable degree within one year of discharge from active duty. In fact, a March 18, 1965, x-ray report of the left hand revealed that no evidence of injury could be seen in the hand. As such, service connection for osteoarthritis of the first MCP joint on the left hand cannot be granted on a presumptive basis under 38 C.F.R. § 3.307. In addition, the upper extremities were found to be normal on separation examination and no neurological abnormalities were noted. Thus, no chronic disorder of the left hand was manifested in service. However, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). In this case, the claims file contains no medical evidence linking a current diagnosis of osteoarthritis of the first MCP joint on the left hand or nerve damage of the left hand to the Veteran's active duty service. Specifically, the July 2012 VA opinions reflect that the Veteran's left hand nerve condition, as well as his left thumb MCP osteoarthritis and trigger thumb, are less likely as not the result of his active service. The examiner's opinions are entitled to great probative weight as they are based on a review of the history, a physical examination and as a rationale was provided for the opinion. The claims file contains no medical evidence to the contrary. Thus, the Veteran's claims for service connection for osteoarthritis of the first MCP joint on the left hand and nerve damage of the left hand must fail on a direct basis. See Shedden, supra. The Veteran reported that the original injury occurred during training but that the symptoms continued and worsened during his combat service. The provisions of 38 U.S.C.A. § 1154(b) state that in the case of any veteran who engaged in combat with the enemy in active military service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. Nevertheless, the Board notes that 38 U.S.C.A. § 1154 merely relaxes the evidentiary burden for a combat veteran with respect to evidence of an in-service occurrence of an injury, it does not create a statutory presumption that a combat veteran's disease or injury is automatically service-connected. A claimant must still provide evidence of a relationship between an injury in service and a current disability. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this case, the Board finds credible, competent and probative the Veteran's reports of experiencing symptoms during combat. However, the separation examination found no abnormalities with respect to the upper extremities and no neurological abnormalities and the VA examiner in 2012 found that the current disabilities were less likely as not related to the injury in service. As discussed above, this is highly probative evidence against finding a nexus between the currently diagnosed disabilities and service. The Board does note that, with regard specifically to the Veteran's claim for service connection for nerve damage of the left hand, the July 2012 VA examiner referenced some inconsistencies in the reported history of the actual incident. Specifically, the examiner noted that Veteran's wife reported that the Veteran complained of numbness in his left hand since 42 years prior, which is approximately 1970 or 17 years after the Veteran's separation from service. The Board does not find the statement of the Veteran's wife to be inconsistent with the Veteran's reported history, as she is merely speaking to the time period which she has known the Veteran and not indicating that his disability began after service. Regardless, the Board notes that the examiner did not indicate that this misperceived inconsistency was the basis for his opinion regarding the etiology of the Veteran's current disability. The examiner clearly indicated that the rationale for the opinion was the fact that there was no known scientific reason for a burn that healed without skin contractures or involvement of the deep structures to cause nerve conditions many years later and that the burn is located in an area quite distant from the carpal tunnel, further decreasing the likelihood of any relationship. Therefore, as the examiner's misinterpretation of inconsistencies in the reported history of the actual incident did not serve as the basis for the opinion regarding the etiology of the Veteran's current disability, the Board finds this opinion to be competent and highly probative. In providing the other opinion, the examiner considered significant the normal separation examination report, the Veteran's employment after service in a position which primarily required the use of his hands, the fact that left thumb MCP osteoarthritis is not unusual with aging, that trigger finger results after repeated inflammation and was likely related to repetitive motion with contribution from the MCP arthritis, and that there was no scientific basis to support any relationship to the skin burn in 1952. The examiner reviewed the claims folder and was aware of the Veteran's assertions but determined that it was less likely as not that the current disabilities were related to service for the aforementioned reasons. In denying these claims, the Board has given consideration to the Veteran's assertions that he burned his left hand in service and has continued to experience left hand problems since service. The Board notes that the Veteran can attest to factual matters of which he had first-hand knowledge, such as burning his hand during service and experiencing problems since service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be competent to offer an opinion on complex medical questions, such as whether his current osteoarthritis of the first MCP joint on the left hand or nerve damage of the left hand are related to a burn he suffered approximately 60 years ago. See Jandreau v. Nicholson, 492 F.3d at 1377 (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Therefore, while the Board finds that the Veteran has provided competent, credible and probative testimony as to the circumstances of this injury, and the continuity of symptomatology after the injury, the Board finds that his lay assertions regarding the etiology of his current osteoarthritis of the first MCP joint on the left hand and nerve damage of the left hand are ultimately outweighed by the normal findings on the separation examination report and the competent July 2012 VA opinions provided by a licensed medical professional. Moreover, even if the Veteran were competent to diagnose disabilities and provide an etiological opinion and such statements were found credible and probative, they would be outweighed by the more probative medical opinions which were provided by a medical professional who reviewed the history and conducted a physical examination. The 2012 examiner's opinions are entitled to greater probative weight as they were based on a review of the history, an examination and as a rationale was provided for the opinions. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claims for service connection for osteoarthritis of the first MCP joint on the left hand and nerve damage of the left hand, and the benefit-of-the-doubt rule is not for application. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for osteoarthritis of the first MCP joint on the left hand is denied. Entitlement to service connection for nerve damage of the left hand is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs