Citation Nr: 1303656 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 06-25 051A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral thumb disorder, to include carpal tunnel syndrome. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran had active service in the Air Force from December 1979 to September 1988. He also had service in the Georgia National Guard from March 1995 to July 1999, with federalized active duty for training (ADT) from July 1996 to January 1997, and Air Force Reserve service from July 1999 to February 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a prior rating decision by the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). Historically, the Veteran provided testimony at a December 2009 videoconference hearing before the undersigned. A transcript of that hearing is associated with the claims folder. The Board subsequently remanded this claim for additional development in February 2010, and again in January 2012. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). On a procedural note, the Veteran was originally represented by Attorney Barbara Scott Girard. In March 2006, Attorney Virginia Girard-Brady submitted a 21-22a revoking Attorney Scott Girard's representation. In March 2012 correspondence, Attorney Girard-Brady withdrew her presentation of the Veteran. In April 2012, the RO contacted Attorney Girard-Brady for clarification of representation. Her office indicated that she represented the Veteran only for a low back claim. As the current claim is for the thumb and he has not appointed another representative, the Board finds that he is unrepresented as to this issue. The issues of a total disability rating based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A chronic bilateral thumb disorder was not noted in service or within a year thereafter; a current bilateral thumb disorder is not related to service. 2. Carpal tunnel syndrome has not been shown. CONCLUSION OF LAW A bilateral thumb disorder, to include carpal tunnel syndrome, was not incurred in or aggravated by service, or manifested within a year thereafter, or as the result of any incident of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296, 302 (1999). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2011); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may also be awarded for certain disabilities, such as arthritis, which manifest to a compensable degree within a year of service separation. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service treatment records reveal that while receiving treatment for an unrelated disorder in March 1988, the Veteran reported pain in this thumbs. No diagnosis was made at that time and there was no follow-up. He separated from service in September 1988. Post-service records reflect that at an October 1994 examination, the Veteran's upper extremities were normal, and he did not report a disorder of either thumb. On a concurrent report of medical history, he denied any history of bone, joint, or other deformity, or arthritis, rheumatism, or bursitis. A July 1999 periodic medical examination was also negative for any abnormality of the upper extremities. The Veteran filed his initial service connection claim for, among other things, weakness of the thumbs in September 1998. The RO found no evidence of a current disorder of the thumbs which was related to an in-service disease or injury, and his claim was denied. Subsequently, service treatment records were associated with the claims file and the claim was reconsidered and denied in May 2005. He appealed. In a March 2008 VA peripheral nerves examination, the Veteran reported the onset of a bilateral thumb disorder in approximately 1984. He stated he taught typing during service in the 1980's, and began to experience a gradual numbness and tingling in his thumbs. When he was reassigned and no longer teaching typing, his thumb pain gradually improved. He complained of intermittent pain bilaterally at the base of the thumbs. He was also noted to have been awarded service connection for degenerative disc disease of the cervical spine. On physical evaluation, motor strength and sensory response was within normal limits and equal bilaterally. After examining the Veteran and reviewing the claims file, the examiner stated it was less likely than not that any current disorder of the thumbs was related to his service-connected cervical spine disorder as no evidence of cervical radiculopathy was found. He indicated that the symptoms were consistent with carpal tunnel syndrome. Parenthetically, this is the only reference to carpal tunnel syndrome. At a December 2009 hearing before the Board, the Veteran testified that his thumbs continued to cause him pain, for which he used medication. He stated his thumb pain began when he was assigned to teach typing, which involved using typewriters for many hours per day. He reportedly sought treatment for his thumb pain at that time, and was given splints for his thumbs. In a July 2010 VA medical examination, the Veteran reported weakness in his bilateral thumbs, some loss of hand strength, and aching pain of the hands, right worse than left. He continued to take medication for his pain of the thumbs and used splints on his wrists and hands occasionally. On objective evaluation, the Veteran had normal range of motion of the thumbs, with some pain noted on motion. X-rays of the thumbs confirmed very early degenerative changes bilaterally. Upon review of the claims file and physical examination of the Veteran, the examiner determined it was less likely than not that any current disorder of the thumbs was related to any disease, injury, or other incident of service, as the service treatment records were negative for any treatment of a thumb disorder. Of note, this is the first recorded diagnosis of arthritis, coming more than one year after the Veteran's discharge from service. Therefore, arthritis was not shown within the first year of discharge and the presumptions under 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 do not apply. In an April 2011 VA examination, the Veteran reported essentially the same history and complaints. After a review of the claims file, the examiner opined that it was less likely than not that the Veteran's thumb complaints (diagnosed as arthritis) were related to service. The rationale was that there was no evidence of treatment for the disorder while he was in service. Because the examiner had not acknowledged the Veteran's in-service complaints in the written opinion (although presumably considered his statements during the course of the examination), the Board remanded for yet another examination, which was undertaken in May 2012. The claims file was reviewed by the examiner in conjunction with the examination. The Veteran reported a history of degenerative arthritis of the metacarpophalangeal joint of both thumbs first diagnosed in 1988, and a dislocation of the right thumb, also in 1988. In the May 2012 examination, the examiner reviewed the claims file, to include the service treatment records, and noted the Veteran's March 1988 report of bilateral thumb pain, with no diagnosis given at that time. Parenthetically, the service treatment records do not show complaints of, treatment for, or a diagnosis of a dislocated thumb in service. On physical evaluation, the Veteran exhibited a gap between the thumb and the thumb pad of the right hand. Degenerative arthritis of the bilateral hands was diagnosed, along with a dislocation of the right first metacarpophalangeal joint. Even considering the in-service complaints, the examiner opined that it was less likely than not that any current disorder of the thumbs was related to a disease, injury, or other incident of service. This opinion was based on the examiner's inability to find any evidence of in-service treatment of a thumb disorder. An addendum to this report was added by a different examiner in June 2012. This examiner reviewed the claims file, to include the examination report, and confirmed the prior opinion that it was less likely than not that any current disorder of the thumbs was related to any disease, injury, or other incident of service. The examiner noted that while the Veteran did report bilateral thumb pain during service, he was not diagnosed with a thumb disorder at that time. Additionally, the record was otherwise negative for any details or other symptoms regarding a thumb disorder at that time. Thus, there was, in the examiner's opinion, "insufficient data to show a correlation between the current complaints and the veteran's active service." After considering the totality of the record, the Board finds the preponderance of the evidence weighs against the grant of service connection for a bilateral thumb disorder. As noted above, while the Veteran did report pain of the thumbs on one occasion in 1988, no diagnosis or other findings were made at that time. Additionally, he did not seek treatment for a thumb disorder on any occasion thereafter, and his upper extremities were found to be normal on several periodic examinations thereafter. This lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim. The Veteran has himself asserted a continuity of bilateral thumb symptomatology since service. Generally, a layperson is competent to report such observable symptomatology as chronic joint pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Even accepting that the Veteran experienced bilateral thumb pain early in his active duty service period, subsequent periodic medical examinations characterized his upper extremities, to include his hands, as normal at that time, and he did not seek treatment for his thumbs on any occasion during service following his initial March 1988 report of bilateral thumb pain. This weighs against his current assertions that he has had thumb pain since service. Therefore, neither the medical evidence nor the lay evidence reflects continuity of symptomatology involving the Veteran's thumbs, since service, or within a year thereafter. The Board notes that he first claimed service connection for a bilateral thumb disorder in 1998, shortly after his most recent period of active duty, but a diagnosis of a disorder of either thumb was not made at that time. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. Therefore, the Board must also consider whether any current bilateral thumb disorder is related to a disease or injury incurred during service. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's bilateral thumb disorder to active duty, despite his contentions to the contrary. As noted above, he was afforded VA examinations in April 2008, July 2010, and May 2012 which found no treatment for a disorder of either thumb in service, or a nexus between any current disorder, and any disease, injury, or other incident of service. Additionally, a different VA examiner reviewed the claims file in June 2012 and also found no evidence of such a nexus. Admittedly, the April 2008 and July 2010 examiners did not explicitly acknowledge the Veteran's 1988 in-service complaint of bilateral thumb pain in their opinions which renders their opinions of lesser probative value; however, the Veteran reported in-service complaints which they considered as part of their examination. The May 2012 examiner and June 2012 reviewer did, however, acknowledge this in-service complaint, and confirmed that such a nexus was less likely than not. In the absence of competent evidence to the contrary, the Board concludes that the preponderance of the evidence is against a medical nexus between the Veteran's service and his current bilateral thumbs disorder. The Veteran himself asserts that his service as a typing teacher resulted in his current disorders of the thumbs. As an initial matter, the Board finds the Veteran to be a credible historian. Nevertheless, as a layperson, he is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Disorders involving degenerative changes are, however, complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a disorder of the thumbs, and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the unfavorable rating decision that is the basis of this appeal was already decided prior to the enactment of the current § 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial decision, the RO did not err in not providing such notice. Rather, a veteran has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in March 2001, January 2005, November 2006, and April 2010 that fully addressed all notice elements. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. With respect to the Dingess requirements, in November 2006, the Veteran was provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Thus, there is no prejudice in issuing a final decision in the present case and adequate notice was provided to him prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA and private medical treatment records, as identified by the Veteran. The Veteran has also been afforded multiple VA examinations addressing the issue on appeal. The Board notes that the medical evidence of record contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. In December 2009, the Veteran testified before a Veterans Law Judge. During the hearing, the Veterans Law Judge clarified the issue on appeal and asked about the possibility of forgotten records. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Therefore, all available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a bilateral thumb disorder, to include carpal tunnel syndrome, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs