Citation Nr: 1308731 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 08-18 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral thumb disorder. 2. Entitlement to service connection for cramping of the fingers of the left hand. ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1967 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. These issues were previously before the Board in October 2010 and July 2012, at which time they were remanded for additional development. Pursuant to these remand orders, the agency of original jurisdiction obtained additional treatment records and afforded the appellant a January 2011 VA medical examination with September 2012 addendum. Therefore, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran had military service in Vietnam, and is presumed to have been exposed to herbicides therein. 2. Symptoms of bilateral thumb disorders and a left hand disorder were not chronic in service. 3. Symptoms of bilateral thumb disorders and a left hand disorder have not been continuous since service. 4. Arthritis of either hand or an organic disease of the nervous system were not diagnosed during service and did not manifest to a compensable degree within one year of service separation. 5. Current bilateral thumb and left hand disorders are not related to service. 6. Current bilateral thumb and left hand disorders are not causally related to or permanently worsened by any service-connected disability. 7. Competent evidence has not been presented establishing onset of peripheral neuropathy during service, as the result of a disease or injury incurred therein, or as secondary to herbicide exposure. CONCLUSIONS OF LAW 1. Current bilateral thumb disorders were not incurred in service, and neither arthritis nor an organic disease of the nervous system may be presumed to have been incurred therein, to include as due to herbicide exposure, or as due to or aggravated by a service-connected disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. A disorder of the fingers of the left hand was not incurred in service, and neither arthritis nor an organic disease of the nervous system may be presumed to have been incurred therein, to include as due to herbicide exposure, or as due to or aggravated by a service-connected disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). For the reasons to be discussed, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In December 2006, February 2007, and December 2010 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, the December 2006 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued prior to the adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. He has also been afforded a VA medical examination in January 2011, with a September 2012 addendum. The Board notes that the VA medical evidence 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. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. Service Connection The Veteran seeks service connection for a bilateral thumb disorder, and for a disorder characterized by cramping of the fingers of the left hand. He contends he developed arthritis of the thumbs during service and sustained an injury to the left hand, both of which have resulted in current disabilities. In the alternative, the Veteran contends his disorders of the thumbs and left hand are secondary to his service-connected spondylosis of the lumbosacral spine, with spondylolisthesis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). 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. With chronic disease as such in service, 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). 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 C.F.R. § 3.303(d) (2012). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as an organic disease of the nervous system or arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. In the recent case of Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Organic diseases of the nervous system and arthritis are recognized as chronic disorder by 38 C.F.R. § 3.309(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). When there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002). Additionally, the Board notes that the Veteran had service in Vietnam during his active duty period, and has a current diagnosis of peripheral neuropathy. VA is bound to consider all pertinent theories of service connection, whether or not a theory is raised by the Veteran. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). Thus, the Board must consider whether service connection for peripheral neuropathy, claimed as numbness and weakness of the hands, is warranted. Any Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. If the Veteran was exposed to an herbicide agent during service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied; chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes colitis or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutaneous tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchitis, laryngitis or trachea) and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma Kaposi's sarcoma, or mesothelioma. 38 C.F.R. § 3.309(e). In order for the statutory presumption to apply to acute or subacute peripheral neuropathy, symptoms must manifest within weeks or months of exposure, and resolve within two years of the date of onset. See 38 C.F.R. § 3.309(e), Note 2. The service treatment records indicate that multiple general medical examinations were afforded the Veteran following his return from Vietnam in approximately 1969. On those occasions, he did not report any peripheral neuropathy of the upper or lower extremities, and no neurological impairment of the extremities was noted on objective physical examination. Thereafter, the Veteran did not report any peripheral neuropathy or neurological symptomatology until approximately 1982, many years after his presumed exposure in Vietnam ended. Based on these facts, the Board is unable to conclude that the Veteran's peripheral neuropathy manifested within a year of his last exposure to herbicides, as is required for the regulatory presumption. Although the Veteran is unable to satisfy the requirements discussed above to be entitled to the regulatory presumption of service connection for peripheral neuropathy as a result of exposure to Agent Orange, the Board is required to evaluate the Veteran's claims on a direct basis as well. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Considering first whether the Veteran sustained a disease or injury of the thumbs or left hand during service, the Board has reviewed his service treatment records and found some reported symptoms of the upper extremities. In December 1982, the Veteran was seen for low back pain, with a reported decrease in sensation of the left side, including the left hand. Sensation was described as decreased in the left palm. On objective evaluation, however, neurological response in his left hand was within normal limits, with normal motor response and no apparent impairment. No diagnosis was made at that time. He was given medication for his reported back pain. A May 1991 clinical notation indicates the Veteran was seen for follow-up of a crush injury to his right ring finger. The finger was without a hematoma, and extension and flexion range of motion were both full. Physical therapy was prescribed. On his January 1992 service separation physical examination, the Veteran was without any reported neurological or musculoskeletal abnormalities of either hand, to include the thumbs. On a concurrent report of medical history, he gave a history of swollen or painful joints, and arthritis, rheumatism, or bursitis. The affected joints were not specified. On an initial compensation claim received in May 1992, Veteran claimed service connection for arthritis of multiple joints, including his hands, and an injury to the ring finger of the right hand. No disorders specific to either thumb were noted at that time. On VA medical examination in June 1992, the Veteran reported frequent stiffness of multiple joints, including his hands. He denied any current residuals of his crush injury to the right ring finger during service. On objective evaluation, he had no limitation of motion or other impairment of the hands. Concurrent X-rays of the hands revealed normal joints spaces and bone density. No visible fractures were observed, and the assessment was of normal hands. His right ring finger was examined and found to have no significant residuals of his in-service crush injury to the finger. Arthralgia of the hands was diagnosed. Arthralgia is defined as joint pain, but does not indicate the cause of the joint pain, does not suggest injury, and does not identify any anatomical cause of the symptom of pain. See Dorland's Illustrated Medical Dictionary 149 (30th. ed. 2003). The U.S. Court of Appeals for Veterans Claims (Court) has recognized that such pain alone does not equate to a diagnosis of disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). For this reason, this evidence tends to show no reports of bilateral thumb or left hand symptoms during service or continuous symptoms after service, including at the 1992 VA examination. Thereafter, the Veteran did not report or seek treatment for bilateral thumb disorders or a left hand disorder for many years. In November 2006, the Veteran filed a service connection claim for degenerative joint disease of the thumbs. In a January 2007 statement, the Veteran reported some cramping in his left hand with back movement. He also stated his thumbs cause him constant pain, making the gripping of objects difficult. On VA spinal examination in June 2007, the Veteran was diagnosed with lumbar spine spondylosis with spondylolisthesis. No residual impairment of the upper extremities was noted at that time. In November 2007, the Veteran underwent a private neurological evaluation. He reported intermittent bilateral hand numbness, with associated pain. On physical evaluation, motor strength in the upper extremities was normal, with some bilateral sensory loss in a glove pattern on pinprick. Reflexes were also decreased. Peripheral neuropathy was diagnosed, and the examiner stated this diagnosis was most likely not related to his lumbar pathology. A January 2011 VA examination was afforded the Veteran. He reported constant pain in his thumbs, left worse than right. He also reported cramping in his fingers bilaterally, left worse than right. Other symptoms included a loss of strength and sensation. He denied any hospitalization, surgery, or trauma of the hands. Physical examination of the Veteran's hands was characterized by the examiner, a VA physician, as normal. Bilateral thumb strains were diagnosed. Paresthesia of the Veteran's left hand was also diagnosed. Upon review of the service treatment records and physical examination of the Veteran, the examiner determined that it was less likely than not that the Veteran's current disorders of the thumbs and left hand were incurred during service, or were otherwise related to an in-service disease or injury. The examiner also opined that the Veteran's spondylosis with spondylolisthesis of the lumbosacral spine less likely than not either caused or aggravated his disorders of the left hand. In September 2012, this same examiner provided an addendum which specifically addressed the Veteran's in-service treatment for a crush injury of the right ring finger, and for reported numbness of the left hand. The examiner noted that the right ring finger injury appears to have resolved, and did not involve the right thumb. Additionally, when the Veteran reported numbness of the left hand in December 1982, his left hand was completely normal on objective evaluation, and no diagnosis was made at that time. Therefore, the examiner could find no evidence which would cause him to change his prior opinions regarding the etiology of the Veteran's current disorders of the left hand and bilateral thumbs. After considering the totality of the record, the Board finds the preponderance of the lay and medical evidence to be against the award of service connection for bilateral thumb disorders and for a disorder characterized by cramping of the fingers of the left hand. While the Veteran did seek treatment for a crush injury to his right ring finger during service, and also reported weakness of the left hand while on active duty, he did not report, and was not diagnosed with, a disorder of either thumb or the left hand at that time. Additionally, when his left hand was objectively examined during service, no current disorder of the hand was diagnosed at that time. The Veteran has alleged onset of arthritis of his thumbs during service or to a compensable degree within a year thereafter, but his January 1992 service separation examination is negative for any abnormalities of the upper extremities, to include his hands, at service separation. The Veteran did report a history of arthritis at service separation, but did not specify the affected joints. Regardless, his service treatment records are negative for any diagnosis of or treatment for arthritis of either hand, to include the thumbs. Likewise, on physical examination in June 1992, X-rays of the hands revealed normal joints spaces and bone density. No visible fractures were observed, and the assessment was of normal hands. Arthritis was not diagnosed at that time. Although arthralgia of the hands was diagnosed in June 1992, no such diagnosis was rendered during service, and the Board does not find arthralgia to be a compensable disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Peripheral neuropathy or any other compensable disorder of the thumbs or left hand was not diagnosed until approximately 15 years after service separation, suggesting such a disability was not incurred in service or has been ongoing since that time. This lengthy period without complaint or treatment is a factor that may considered regarding whether there has been continuity of symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As such, the Board finds that the Veteran's lay statements that he had a disorder of the thumbs and left hand in service and ever since service are not credible. The Board finds that the weight of the evidence does not demonstrate that the claimed disorders of the thumbs and left hand were incurred in service, were chronic in service or have been continuous since service. With regard to the Veteran's assertion that his current disorders of the thumbs and fingers of the left hand were incurred during service, the Veteran is competent to report in-service injury, treatment, or contemporaneous diagnosis as told to him by a doctor (which he does not assert), placement on profile (which he does not assert), and symptoms he experienced at any time, including in service and during the years after service to the present. The Board recognizes that a layperson is competent to testify regarding such observable symptomatology as pain of the thumbs and hands. 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). The Veteran, however, is not competent to establish a matter that requires medical knowledge, such as providing a diagnosis or etiology of his current bilateral thumb strains, paresthesia of the left hand, and peripheral neuropathy of the upper extremities, as such neurological disorders are complex disorders which require specialized medical knowledge. Id. He is also not competent to establish an etiological link between any current neurological or other disorders of the upper extremities, and his confirmed herbicide exposure in service. Id. With regard to the element of current diagnosis, such element is established by the more probative medical evidence, with support of the Veteran's testimony regarding symptoms and impairment, and noting that the diagnoses were also based in part on the Veteran's reports of history and symptoms. With regard to the question of nexus to service by competent medical opinion, the Board has found that the medical opinion evidence in this case by various trained medical professionals reviewing the history and complaints of record, making findings, and observing the Veteran, is more probative on the remaining question of nexus to service (under 38 C.F.R. § 3.303(d)) than are the Veteran's lay assertions regarding onset of disorders of the bilateral thumbs or fingers of the left hand during service or within a year thereafter. The Veteran also asserts that his service-connected disability of the lumbosacral spine has resulted in cramping of the left hand and bilateral thumb disabilities. He has already been granted service connection for spondylosis with spondylolisthesis of the lumbosacral spine. Nevertheless, on private neurological evaluation in November 2007, the examiner found it unlikely that the Veteran's current peripheral neuropathy of the upper extremities was related to his lumbosacral disability. Additionally, on a January 2011 VA medical examination, with September 2012 addendum, a VA examiner found no evidence that the Veteran's claimed bilateral thumb disorders and disorder of the fingers of the left hand were either caused or aggravated by his lumbosacral spine disability. Additionally, no medical examiner or other competent expert has opined regarding an etiological link between his service-connected spondylosis with spondylolisthesis of the lumbosacral spine and any current disorders of either the thumbs or the fingers of the left hand. In the absence of such evidence, service connection on a secondary basis must be denied. The Veteran himself asserts that his spondylosis of the lumbosacral spine either causes or aggravates his claimed disorders of the bilateral thumbs and fingers of the left hand, but the Board finds that establishment of such an etiological link requires specialized medical knowledge, and is not susceptible to lay observation. See King, 700 F.3d at 1345; Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For these reasons, the Board concludes that the preponderance of the evidence is against the claims for service connection for disorders of the bilateral thumbs and fingers of the left hand, including on a presumptive basis as due to herbicide exposure, and as secondary to a lumbar spine disability. The Board also concludes that there is no doubt to be otherwise resolved, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral thumb disorders, including as secondary to service-connected lumbar spine disability, is denied. Service connection for a disorder of the fingers of the left hand, including as secondary to service-connected lumbar spine disability, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs