Citation Nr: 1307150 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 06-18 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for arthritis of the left hand. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1954 to November 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In a December 2012 decision, the Board addressed numerous claims regarding entitlement to service connection for arthritis of multiple joints. The current claim on appeal regarding arthritis of the left hand, however, was remanded for additional evidentiary development. It has now been returned for further appellate consideration. 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 & Supp. 2011). FINDING OF FACT Arthritis of the left hand was not diagnosed until many years after service, and is not causally or etiologically related to such service, including his service-connected degenerative joint disease (DJD) of the left thumb, residuals of a fracture. CONCLUSION OF LAW The criteria for the establishment of service connection for arthritis of the left hand, on theories of entitlement including direct, presumptive, secondary, and aggravation, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in December 2005, March 2006, August 2009, July 2011, October 2011, and December 2012) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the March 2006 and August 2009 letters mentioned above. VA also 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 VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment, VA and private treatment records and private medical statements with the claims file. Multiple personal statements are included with the claims file. No outstanding evidence has been identified that has not otherwise been obtained or attempted to obtain. Notably, in the Board's 2012 remand and in pertinent here, the Veteran reported that he had been treated at Tripler Army Medical Center (TAMC) following an in-service accident that he says caused his left hand disability and that that facility might be in possession of records relevant to his claim. VA contacted the National Personnel Records Center (NPRC) and requested additional STRs, but NPRC responded that there were none. Moreover, in July 2011, VA contacted TAMC directly and requested all available records pertaining to the appellant. In September 2011, an official from TAMC responded that no records pertaining to the Veteran had been found. Based on the responses from the NPRC and TAMC, the Board finds that additional requested for records of this alleged treatment would be futile. 38 C.F.R. § 3.159(c)(2) (2012); see also Counts v. Brown, 6 Vet. App. 473, 477 (1994) (noting that "VA has no duty to seek to obtain that which does not exist"). Additionally, the Board notes that the Veteran has not specifically identified any new avenue of development not already explored by VA with respect to these records. See 38 C.F.R. § 3.159(c) (discussing claimant's obligation to provide enough information to identify and locate the records). Consideration has also been given to a 1988 decision from the Social Security Administration (SSA) showing that the Veteran was awarded disability benefits based on chronic obstructive pulmonary disease and arthritis of multiple joints. Significantly, while the decision is associated with the claims file, the underlying records considered by the SSA in making its decision are not of record. VA normally has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Board does not find this oversight to be prejudicial to the Veteran. In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit determined that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit rejected the argument in Golz that SSA records are always relevant and VA always is required to obtain them. Relevant records were defined as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321 (emphasis added). The Federal Circuit also stated, "Not all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. There is no indication in the record that the Veteran's SSA records are relevant or would aid in substantiating his service connection claim. First, neither the Veteran nor his representative have identified those records as being relevant. Next, as will be discussed below, there is ample evidence showing that the Veteran's arthritis of the left hand did not manifest until after 1994, which is six years after the SSA decision. There is also significant evidence showing that the Veteran's in-service injury was limited to his thumb. Finally, the record already includes three opinions addressing the etiology of the Veteran's left hand disability. The records from SSA, which were identified as being mostly VA records and records already contained in the claims file, would not by their very nature address the etiology of any disability of the hand. The Veteran was also afforded a VA medical examination pertaining to his claim for left hand arthritis with an emphasis on obtaining opinions as to the etiology of the disorder. 38 C.F.R. § 3.159(c) (2012). The Board finds that the exam is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the Board notes that the Veteran has not challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F3d 1362 (Fed Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his or her opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2012). Service connection may 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 C.F.R. § 3.303(d) (2012). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). This rule does not mean that any manifestations in service will permit service connection. To show 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. 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) (2012). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2012). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Background The Veteran's STRs confirm that he was treated in November 1954 for fracture of the left thumb. On several occasions thereafter, he reported residual disability and discomfort in both the left thumb and hand. His STRs also show that he was treated in September 1957 for an injury to the left hand as a result of the forceful abduction of the left thumb. Aside from the trauma to the thumb, an X-ray of the bony structures of the left hand appeared normal. Post service records reflect that the Veteran was examined by VA in 1958. This examination was primarily to determine the severity of the left thumb condition. Additional post service records show left hand complaints and symptoms many years thereafter. For example, at a March 1988 VA orthopedic examination, he complained of swelling and stiffness of the hands. A contemporaneous X-ray, however, showed no abnormalities of the left hand except for the residuals of a trauma to the left thumb. In a December 1988 decision, an Administrative Law Judge from the Social Security Administration (SSA) determined that the Veteran was disabled due to multiple disabilities, including chronic obstructive pulmonary disease and arthritis in the cervical and lumbar spine and all extremities. At a February 1994 VA examination, X-rays of both hands were negative with no evidence of degenerative changes. X-ray of the wrists showed mild osteoporosis but no significant degenerative changes. At a May 2003 VA examination, the Veteran reported left thumb pain and an inability to hold or grip objects. He indicated that he not been able to use his left hand for work for years. Exam showed marked limitation of use of the left hand, particularly when compared to the right hand. X-rays of both hands showed minimal arthritic changes probably present at the interphalangeal (IP) joints of both hands. Arthritis in the left thumb was noted. Upon VA examination in February 2005, the Veteran reported left thumb symptoms and difficulty in using the left hand. After examination, the diagnosis was status post left thumb injury with traumatic arthritic changes. Of record is a June 2008 private physician's statement. The physician noted that the Veteran had asked him to write a statement in support of his claims. The physician said that he had reviewed the claims file and had considered the claimant's military experiences as reported, to include his falling from a fire truck and being involved in a bus accident. The physician indicated that since osteoarthritis was known to occur post traumatically and progress with the passage of time, it was more likely than not that the numerous sites of osteoarthritis were the consequence of these two inservice episodes. When examined by VA in December 2009 regarding the Veteran's complaints of arthritis of multiple joints, the examiner noted that the claims file was reviewed. In pertinent part, the Veteran again related injury to the left hand in the inservice injuries. Now, he suffered from chronic soreness and stiffness in the left hand. Exam of the hand revealed normal and full extension and flexion of the fingers, and he could make a good fist. The examiner noted that X-rays of the left thumb, hands, and wrists "over the years" showed degenerative changes. While the examiner found that the Veteran had arthritis of various joints, to include the left thumb, he did not agree with the private examiner's opinion regarding the etiology of the Veteran's multiple joint arthritis. He felt that the Veteran's arthritis, other than in the left thumb, was age related and not due to inservice injuries. He saw no indication that the Veteran's multiple areas of arthritis were posttraumatic in nature (other than the left thumb) and therefore were not related to service. He further pointed out that the only musculoskeletal condition mentioned at time of service separation was that of the left thumb fracture. Upon VA examination in January 2013, the examiner noted that the claims file was reviewed. The Veteran's medical history was noted, to include inservice injury to the left thumb. The examiner also reviewed X-rays included in the claims file. Following evaluation of the hands and fingers, the examiner opined that the Veteran's arthritis of the left hand was less likely than not incurred in or caused by his military service. He added that a review of the radiographs did not show more degenerative changes at the site of the fractures on the left as compared to the contralateral right radiographs. There was osteoarthritis involving to some extent all the joints and the degree of arthritis appeared to be very close to the same, if not the same, on both sides in comparison. There were some right-sided areas that appeared to have slightly more degenerative change than the left, and some on the left that appeared to have slightly more than on the right, "though this may be imagination." There was no difference in the joints involved in the inservice injuries. There was a slight residual of bony change from the fracture of the left carpometacarpal joint. There were also findings of other hand injuries on both hands. Based on the radiograph findings, he opined that it did not appear that the arthritic changes were greater at the area of fracture in the military (the thumb proximal metacarpal head and at the greater multangular bone of the wrist). There was suggestion of previous fracture at that site. The thumb metacarpophalangeal joint that was sprained did not appear to be affected more than the contralateral joint either. The examiner further noted that the fact that arthritis was not 'contagious" and did not "spread" to other joints was very clear and well understood by educated clinicians. He also noted that the previous opinion that arthritis had spread to other joints from the joints that were involved in the military injuries was erroneous. He agreed with the previous VA examination report which was correct in stating that the degenerative arthritis of the joints was not related to the injuries of the left hand. Further, he added, that the arthritis in the left hand at the joints that was not involved in the inservice injuries was not related thereto. There was no basis in fact for any connection of arthritis in any joint outside of the two joints involved in the traumatic events in the military to be connected in any way to the traumatic events that occurred to the focal greater multangular and the proximal head of the thumb metacarpal bone or to the thumb metacarpophalangeal joint. Moreover, considering the fact that there was not a greater amount of arthritic change at these two joints compared to the opposite side two joints, it was highly unlikely the arthritis was traumatic instead of being degenerative (age-related) as the other joints appeared to be. Therefore, it was highly unlikely (significantly less than 50 percent probability) that any current left hand arthritis was causally related to active duty service to include injuries in 1954 and 1957. As to whether the current left hand arthritis was related to or aggravated by the residuals of the left thumb injury, to include DJD of the left thumb, the VA examiner noted that the degree of arthritis in the right hand and wrist was the same as in the left hand and wrist. He again noted that arthritis does not 'spread." In conclusion, he added that the left hand arthritis would have occurred just as the right hand arthritis did, "even if [the Veteran] had never been in the military and never had an injury to the thumb." Analysis Initially, it is noted that service connection is already in effect for DJD of the left thumb as the residual of fracture. A 10 percent rating has been in effect since November 2002. As noted earlier, it is the Veteran's contention that left hand arthritis is directly related to inservice injuries or secondary to the service-connected left thumb condition. While the STRs confirm that the Veteran was treated for injury to the left thumb in 1954, and subsequently was seen for additional thumb and hand complaints, additional left hand diagnosis was not reported. Nor were left hand problems, other than the left thumb, noted at time of service separation. Medical records dated after service reflect treatment (from approximately 1988) for left thumb/hand complaints. While X-rays of the hands in 1988 and 1994 were negative, subsequently dated reports include diagnosis of arthritic changes in the left hand and/or in interphalangeal joints as summarized above. Other than the left thumb, degenerative changes in the left hand and/or other interphalangeal joints were not shown until many years after service separation. Although a chronic left hand disorder, to include arthritis, was not present in service or until many years thereafter, service connection may still 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). Thus, the Board has reviewed the record for evidence establishing that current left hand arthritis is causally related to active service or any incident therein, to include injury in 1954 and/or 1957. The Board notes that there is conflicting evidence of record as to the etiology of the Veteran's left hand arthritis. As noted earlier, a private physician reported in June 2008 that the Veteran had reported that he fell from a fire truck and was also involved in a bus accident. The private physician opined that since osteoarthritis was known to occur post traumatically and progress with the passage of time, it was more likely than not that the Veteran's numerous sites of osteoarthritis were the consequence of the two inservice episodes of trauma. In disagreement with the private examiner's opinion are two VA examiners' opinions. The VA examiner in December 2009 determined, as discussed above, that the Veteran's arthritis, except for that in the left thumb, was age-related and not related to service. The VA examiner from January 2013 provided a similar negative opinion. As noted above, he pointed out that the degree of arthritis currently shown in the left hand was generally no more than that in the right hand. He further pointed out that arthritis is not contagious and does not spread to other joints. He added that this fact was well understood by educated clinicians. He specifically noted that the 2008 private physician's opinion was erroneous. There simply was no basis in fact for any connection of arthritis in any joint outside of the two thumb joints involved in the traumatic events that occurred during service. The VA examiner also noted that there was no aggravation of the left hand condition by the service-connected left thumb disorder in that currently demonstrated left hand arthritis would have occurred just it did in the right hand, even if the Veteran had never been in the military or injured his left thumb. The Board finds that the 2013 examiner's report and opinion, which was concerned with the left hand only, with the opinion as summarized above, is the evidence most probative to the etiology of the Veteran's hand condition. The opinion was based on a review of the complete medical records, consideration of the Veteran's lay statements, consideration of the favorable private opinion, and examination of the Veteran. Thus, it takes into account the medical evidence in favor and against the Veteran's claim, and makes references to specific physical findings set forth throughout the medical record. This latter fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. While the private physician's 2008 general statement that the Veteran's numerous site osteoarthritis could be related to inservice injuries has been considered, the Board finds that the STRs from that period of time and the 2013 opinion to be more probative. Contemporaneous treatment records do not show injury to the left hand (other than for the left thumb). There is also no indication that the private examiner examined the Veteran clinically in 2008. This is significant because, as highlighted by the VA examiner, there are clinical findings (equal levels of arthritis in both hands) that support the conclusion that the Veteran's arthritis is not related to his left thumb fracture or injury. The private examiner also provided no rationale for his opinion where the VA examiner set-out a detailed explanation for his negative opinion, which included addressing the private examiner's opinion. In this regard, it is noted that it is the Board's responsibility to weigh the credibility and probative value of all of the evidence and, in so doing, the Board may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). It is also the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the Board has accorded greater evidentiary weight to the VA specialist who reviewed the record, to include the private examiner's 2008 opinion, and concluded that the Veteran's left hand arthritis was not related to service, was not secondary to the service-connected left thumb DJD, and was not aggravated by the left thumb condition. The Board has also considered the Veteran's statement to the effect that he has arthritis in the left hand that is of service origin or that developed secondary to his service-connected left thumb DJD. The Board finds that the probative value of the lay opinion is outweighed by the more qualified VA examiner's opinion. Moreover, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the etiology of an arthritic process falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Medical knowledge and training is needed to address that medical question, which means the Veteran's opinion does not carry significant probative value. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Moreover, the Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In view of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for left hand arthritis. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Entitlement to service connection for arthritis of the left hand is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs