Citation Nr: 1301903 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-47 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a scar on the palm of the right hand. 2. Entitlement to service connection for a right hip disability. 3. Entitlement to service connection for a back disability, to include lumbar spine degenerative disc disease. REPRESENTATION Appellant represented by: Francis P. Kehoe, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active service from May 2006 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the RO that denied service connection for the claimed disabilities. The Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge in June 2012. A transcript of the hearing is associated with the Veteran's claims folder. The issues of entitlement to service connection for a right hip disability and a back disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent evidence shows that the Veteran has a residual scar on the palm of the right hand which was caused by surgery in active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, service connection for a scar on the palm of the right hand is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Pertinent Law and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. A continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis As an initial matter, complete copies of the Veteran's service treatment records are not associated with the claims file. See the December 2008 response from the National Personnel Records Center (NPRC) and the December 2008 memorandum from the RO regarding the unavailability of the service treatment records. The Veteran submitted some copies of his service treatment records in support of his claim. In this case, the benefit sought is granted. Thus, whether or not the service treatment records are missing is immaterial, as the Veteran is not prejudiced by their absence. The Veteran asserts that he has a current scar on the palm of the right hand due to surgery in active service. The Veteran reported undergoing surgery on the right hand in active service to remove retained foreign bodies. At the hearing before the Board in June 2012, the Veteran stated that sometime in the middle of 2007, he was crossing a street, he fell and skidded. The Veteran stated that he put his hand out when he fell and he injured his palm. He stated that the wound was cleaned and washed. The Veteran indicated that after a few months, the palm started to hurt. He stated that he saw a doctor and was told that there was something in his palm and had to have surgery to take out the foreign object. The Veteran, as a layperson, is competent to describe actions and events such as having surgery on his hand and to describe observable symptoms such as a scar. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Service treatment records show that enlistment examination report dated in March 2006 indicates that examination of the skin and hands was normal. A scar was not identified. The service treatment records show that the Veteran sought treatment for a retained foreign body in the right palm and surgery was scheduled for removal of the foreign body. A June 2007 service treatment record indicates that the Veteran had a complaint of a retained foreign body in the palm of his right hand. The Veteran indicated that one year prior, he had tripped and sustained cuts to the palm of his hand on a gravel surface. The Veteran indicated that the wound healed but about six months ago, he started to notice that something that appeared to be pieces of gravel came to the surface of his right palm; the pieces were tender and pushed on the skin. The Veteran indicated that it had been getting worse due to rope handling. He was right hand dominant. Physical examination revealed that the right hand was tender to palpation. There was a raised lesion, one centimeter in diameter, on the palmar surface of the thenar eminence with apparent foreign body/discoloration within the lesion. X-ray examination of the right wrist revealed a non-visualized foreign body. The assessment was residual of a foreign body in the soft tissue with a non-radiographic visualization of unclear size or presence of foreign body. The Veteran was referred to hand surgery given the anatomic limitations and dominance of the right hand. A July 2007 record from the C. J. Hand Surgery, P.A., indicates that the Veteran reported having a right hand mass or lump secondary to a foreign body. The onset was approximately 11 months ago when the foreign body was lodged in his hand. The Veteran indicated that he thought it could be a rock. Physical examination revealed that a questionable foreign body was felt; it was small and felt to be almost cystic and was over the area of the carpal tunnel. The impression was superficial foreign body. Surgery was scheduled. An operation report of this surgery is not of record. The Veteran separated from service in June 2008. He was afforded a VA examination in October 2008. The VA examination report indicates that the Veteran reported that he fell on his right hand in August 2006 and a few months later, a cyst developed around the scar and had to be cut out. He denied any symptoms related to the scar. Physical examination revealed a jagged, superficial, stellate scar on the palmar aspect at the base of the right thumb on the right hand. The scar was one centimeter in diameter There is competent evidence that the Veteran sustained a wound to the palm of the right hand in active service and this injury resulted in retained foreign bodies. There is competent evidence that the Veteran subsequently had the foreign bodies removed from his right palm in active service. There is competent lay evidence and medical evidence that the Veteran currently has a scar on the right palm due to this injury and surgery. The scar was detected upon VA examination in October 2008, which was approximately 4 months after service separation. The medical evidence shows that upon service entrance examination in 2006, the Veteran did not have a scar on the palm of the right hand. The Veteran is competent to describe his fall and right hand injury and the subsequent treatment in service. The Board finds him credible in this regard. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Obviously, the Veteran has firsthand knowledge of his fall. Also, the Veteran's statements regarding the injury and subsequent treatment have been made to his health care providers and have been consistent over the years. The Board finds that the Veteran's statements made in the course of medical treatment have great probative value because statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App 67, 73 (1997). These statements were made in service and since service. Moreover, there is no evidence of record of any intercurrent event or injury to the Veteran's right hand since separation from service. Based on a review of the entire record, the Board finds that it is as likely as not that the scar on the palm of the right hand is due to injury sustained by the Veteran during active service and the subsequent surgery in service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted for a scar of the palm of the right hand. ORDER Service connection for scar on the palm of the right hand is granted. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), specifically provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d). VA will provide a medical examination which includes a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. An examination is deemed "necessary" if the evidence of record (lay or medical) includes competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 U.S.C.A. §5103A(d)(2). The Veteran contends that he has current right hip and back disabilities that were incurred in service. The Veteran was afforded a VA examination in October 2008. However, upon examination, a bilateral hip disability was not diagnosed. The assessment was normal hip examination. The examiner indicated that the hip complaints were due to the back disability. Lumbar degenerative disc disease and lumbar radiculopathy were diagnosed. Mild degenerative changes at T11 and T12 with associated disc space narrowing were detected on x-ray examination. The examiner did not render a medical opinion as to whether the lumbar disc disease and radiculopathy are medically related to active service. After the VA examination, the Veteran submitted copies of service treatment records and private treatment records showing treatment for low back pain and hip pain. Review of the record shows that service treatment records were not associated with the file at the time of the examination. The examiner did not review the claims folder. A March 2008 pain center treatment record indicates that the Veteran had severe low back pain. It was noted that MRI of the lumbar spine in November 2007 was negative and showed no disc pathology. An April 2008 service treatment record indicates that there were findings of lumbago. Physical examination of the lumbosacral spine revealed no abnormality. There was pain elicited with motion and pain on flexion. X-ray examination of the lumbar spine and Electromyography were negative. An April 2008 service treatment record indicates that there were findings mild degenerative changes in both hips. At the hearing before the Board in June 2012, the Veteran stated that he injured his back in June 2007 when he picked up a bin containing metal scraps. He stated that when he lifted the bin, he felt a popping sensation in his low back and a sharp pain. The Veteran indicated that he sought medical treatment after the injury. He stated that he had low back pain since the injury. The Veteran stated that he injured his right hip in 2008 when he fell when snowboarding; he indicated that this injury occurred during active service. The Veteran stated that he had right hip symptoms since the injury. The Board finds that additional medical examination is necessary to determine whether the Veteran has a current thoracic or lumbar spine and hip disability that had its clinical onset during service or are due to injury or another event or incident of active service. VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). Thus, the Board finds that additional examination is necessary and the examiner should conduct a review of the claims folder in connection with the examination. The Board notes that complete copies of the Veteran's service treatment records are not associated with the claims file. The Veteran submitted some copies of the service treatment records to VA in support of his claim. The RO last conducted a search for the service treatment records in December 2008, six months after the Veteran separated from service. See the December 2008 RO memorandum and the NPRC response. The Board finds that the RO should conduct another search for any outstanding of service treatment records. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). The Veteran should also be asked to submit copies of any outstanding service treatment records that he has in his possession and to provide sufficient information and necessary authorization so that the RO may make an attempt to obtain treatment records referable to treatment for the claimed hip and lumbar spine disability. Accordingly, the case is REMANDED to the RO for the following action: 1. Contact the appropriate service department, including the Record Management Center, and make an attempt to obtain any outstanding service treatment records. Incorporate any such records into the Veteran's claims file. 2. Contact the Veteran and ask him to submit copies of any outstanding service treatment records that he has in his possession. In addition, request the Veteran to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by VA or non-VA health care providers for the claimed right hip and lumbar spine disabilities since June 2008. The letter should invite the Veteran to submit any pertinent medical evidence in support of his claim. If the Veteran provides the necessary information and authorizations, obtain legible copies of any outstanding clinical records and incorporate them into the claims file. The RO should attempt to obtain any pertinent VA treatment records dated from June 2008 to the present. 4. Schedule the Veteran for a VA examination to determine nature and likely etiology of the claimed right hip disability and back disability. The claims folder must be made available to the examiner for review in connection with the examination. All appropriate tests and studies (to include x-rays) should be accomplished with all results made available to the examiner prior to the completion of his or her report, and all clinical findings should be reported in detail. The examiner should report all current diagnoses pertinent to the hip and thoracolumbar spine. After examining the Veteran and reviewing the relevant evidence in the claims file, the VA examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current hip disability that is due to injury or other event of the Veteran's period of active service. The VA examiner should opine as to whether it is at least as likely as not that the Veteran has a current back disability to include degenerative disc disease that is due to injury or other event of the Veteran's period of active service The examiner should consider the following information as reported by the Veteran: The Veteran stated that he sustained a back injury when bending over to lift a bin in active service. He heard a popping sensation at that time and felt sharp pain. He reported having symptoms since that injury. The Veteran also reported that he injured his right hip when he fell while snowboarding and he had right hip symptoms since that time. Attention is invited to the service treatment records which show that MRI and x-ray examination of the lumbar spine was negative. Attention is also invited to the service treatment records which includes an April 2008 records which noted a diagnosis of mild bilateral hip osteoarthritis in April 2008 and the October 2008 record which noted right hip x-ray examination that was negative. The examiner should clearly outline the rationale for any opinion expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 5. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the claim in light of all evidence of record. If any benefit sought on appeal remains denied, furnish a fully responsive Supplemental Statement of the Case to the Veteran and his representative and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs