Citation Nr: 1309443 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 03-35 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a right hand disorder, claimed as traumatic arthritis and/or carpal tunnel syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before the Board in April 2005. The Acting Veterans Law Judge who conducted the hearing is no longer at the Board. The transcript of that hearing is of record. In February 2013, the Veteran was offered another hearing before a current Judge. He responded that he did not wish to be scheduled for another Board hearing. Thus, the claim is ready for consideration. In June 2006, the Board granted service connection for residuals of a fractured 2nd metacarpal on the right hand and denied service connection for traumatic arthritis of the right hand and for a bilateral foot disorder. The Veteran appealed the denial of traumatic arthritis to the Veterans Claims Court. In September 2007, pursuant to a Joint Motion for Remand (Joint Motion), the Court Clerk vacated the Board's June 2006 decision and remanded that issue to the Board for readjudication consistent with the Order. In a subsequent August 2009 action, the Board remanded the issue for additional development. Specifically, the Veteran was afforded a medical examination in January 2010, and a medical opinion was also provided at that time. Thus, 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 sustained a fractured of the 2nd metacarpal of the right hand during service, and service connection has been granted for residuals of this injury. 2. Traumatic arthritis of the right hand was not noted in service or manifested to a compensable degree within a year thereafter. 3. A current disorder of the right hand is not related to service. CONCLUSION OF LAW A right hand disorder, to include traumatic arthritis and/or 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). Continuity of symptoms is required, however, 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). In this case, the disorder at issue, arthritis, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In this decision, the Board has considered the lay evidence as it pertains to the issue. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). "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) (2012); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The evidence of record variously talks about the hand, the wrist, the arm, and, most specifically, the 2nd metacarpal. As the in-service treatment characterizes the fracture as at the base of the 2nd metacarpal, it would have been located next to the bones of the wrist (carpal bones) but not part of the wrist or arm itself. Therefore, the Board will consider entitlement to service connection for traumatic arthritis of the right hand, or any other related disorder, without regard to the fractured 2nd metacarpal or any residuals thereof, for which service connection has already been awarded. The Veteran contends he sustained an injury to his right hand during service resulting in traumatic arthritis, carpal tunnel syndrome, or a similar disorder of the right hand. Service treatment records confirm he sought treatment for an injury to the right hand during service. In March 1974, he was seen for an injury to the hand following a fight. A muscle contusion was noted. Further evaluation indicated a nondisplaced fracture at the base of the 2nd metacarpal bone of the right hand. His right hand was cast, and he was placed on a temporary limited duty profile. The Veteran's cast was reapplied in mid-April 1974. His fractured 2nd metacarpal was observed to be healing well. Thereafter, he did not seek further in-service treatment of this disorder. Additionally, on a July 1974 service separation examination, his upper extremities were without abnormality. He gave a history of a "fractured right arm" which was cast in April 1974. No current impairment was noted. The first records of VA medical treatment for the Veteran date to 2001. He did not report a disorder of the right hand at that time. In April 2002, he reported joint pain at several musculoskeletal joints, including the low back, neck, and right knee. Again, he did not report pain or other symptoms of the right hand. In July 2002, he sought treatment for a week and a half history of a right volar wrist ganglion which had spontaneously occurred. He denied any history of trauma to the right hand. A right thumb boutonniere deformity was also present, and bilateral carpal metacarpal arthritis was observed. The lack of additional treatment both during service and for many years thereafter suggests that any injury to the right hand during service, with the except of the residuals of a 2nd metacarpal fracture, for which service connection has already been granted, was not chronic, with full resolution of symptoms and without permanent residuals. As noted above, the July 1974 service separation examination was negative for any current abnormality of the right upper extremity, to include the hand and wrist. A prior injury to the right upper extremity was noted at that time, erroneously described as a "fractured right arm," but no current abnormality, to include traumatic arthritis, was found. At his April 2005 personal hearing, the Veteran stated he initially injured his right hand in service, and a cast was placed on his hand. He stated that at service separation, his hand was no longer causing him pain, but he began to experience intermittent sharp pain of the right hand shortly thereafter. He denied, however, seeking any treatment for his right hand disorder for several years following service. This lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In support of his claim, the Veteran has reported a history of intermittent pain of the right hand since service. Despite being a layperson, he is competent to report such observable symptomatology as pain of the hand or wrist. 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 Board does not, however, find his statements regarding the continuity of his right hand symptomatology to be credible. As noted above, when the Veteran first began to seek VA medical treatment in 2001, he did not report a current or chronic disorder of the right hand at that time. Additionally, when he was seen for a right volar wrist ganglion in July 2012, he denied any history of trauma to the right hand. He did not claim continuity of pain of the right hand until after his compensation claim was received. These inconsistencies in the record weigh against the credibility of his statements as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Furthermore, the Board does not find that the competent evidence of record suggests an etiological nexus between the Veteran's acknowledged in-service 2nd metacarpal fracture and his claimed current disorders, including traumatic arthritis and/or carpal tunnel syndrome of the right hand and wrist. Specifically, in an August 2003 VA examination, he reported pain of the right upper extremity beginning at the right wrist and radiating up through the right forearm. The examiner noted that the Veteran's symptoms were consistent with, but not diagnostic of, carpal tunnel syndrome. Nonetheless, the examiner opined that these symptoms were unrelated to the Veteran's right 2nd metacarpal fracture. This evidence weighs against the claim as the examiner found no relationship between the Veteran's current complaints and the in-service fracture. A second VA examination was afforded the Veteran in July 2006. X-rays of the right hand were also taken at that time. The examiner found no radiographic evidence of traumatic arthritis of the right hand, and could find "no evidence that [the 2nd metacarpal bone] has ever been fractured." The impression was of a normal examination and X-rays of the right hand. While the evidence shows that the 2nd metacarpal bone was clearly fractured in service, the Board interprets a finding that the X-ray was "normal" as evidence that the fracture was healed. However, this evidence specifically weighs against a finding of traumatic arthritis. In support of his claim, the Veteran submitted 2009 examination reports and opinion statements from two private physicians, I.A., M.D., and A.H.T., M.D. He has also submitted excerpts from medical treatises and articles regarding orthopedic injuries to the hand, bone disorders, and carpal tunnel syndrome. "It is the responsibility of the BVA . . . to assess the credibility and weight to be given to evidence." Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). With regard to the weight to assign to these medical opinions, the Court has held that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [BVA as] adjudicators . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Considering first Dr. A.H.T.'s July 2009 statement, he indicated that he examined the Veteran and reviewed "medical records and reports" submitted by the Veteran's representative. The record does not indicate if the service treatment records were made available to Dr. T. In his statement, Dr. T. first noted that the Veteran "did have a fracture of the wrist" in service which resulted in carpal tunnel syndrome of the right wrist. Dr. T. also found evidence of traumatic arthritis, residuals of a fracture of the right distal radius, and traumatically induced carpal tunnel syndrome. He found these disabilities were more likely than not the result of "wrist and hand" injuries sustained during service. The Board notes that the service treatment records confirm only a fracture of the 2nd metacarpal bone of the right hand during service, but no fracture of the right wrist or arm, to include the right distal radius. The metacarpal bone, or metacarpus, connects to, but is not part of, the wrist. See Dorland's Illustrated Medical Dictionary, 30th Ed. 1135 (2003). Thus, the statement by Dr. T. that the Veteran sustained a right radius fracture in service is unsupported by any competent evidence in the record, and cannot be accepted as probative evidence. Next, while Dr. T. stated he reviewed some medical records supplied by the Veteran, he did not specify these records, and the allegations made within Dr. T.'s report are inconsistent with the Veteran's actual in-service injury. Likewise, Dr. T.'s statement that the Veteran's carpal tunnel syndrome of the right wrist resulted from his in-service right wrist fracture also carries little probative weight as there was no wrist fracture. The fracture was of the 2nd metacarpal of the hand which is already service-connected. A medical opinion based on an inaccurate factual predicate is of no probative value and diminishes Dr. T.'s statement. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Next, Dr. I.A. also stated he examined the Veteran in July 2009. A history of a fracture at the base of the 2nd metacarpal bone of the right hand resulting from a slip and fall incident in service was noted. At that time, the Veteran reportedly exhibited carpometacarpal arthritis. He had reduced grip strength, pain, and numbness of the right hand. The final impression was of a fractured right hand at the 2nd metacarpal. Dr. I.A. further stated the Veteran had "arthritis, myositis, and carpal tunnel syndrome" that were related to "wrist and hand injuries" in service. The Board notes first that Dr. I.A. did not state what, if any, medical records he reviewed in reaching his opinion. Judging by the opinion provided, Dr. A. relied only upon the Veteran's erroneous recitation of his in-service injury, and not upon the service treatment records, as the Veteran's original injury was attributed to a fight, and not to a slip and fall injury. Secondly, Dr. A. stated that the Veteran sustained a wrist injury in service, an injury which is not demonstrated within the service treatment records. As it appears Dr. A.'s nexus opinion was based on an inaccurate factual basis, that of a right wrist injury in service based on a slip and fall, it is of little probative value. Also of record is a January 2012 memorandum from A.M.G., M.D., medical consultant to the Veteran's representative. On the first page of this opinion, Dr. G. describes the history of the Veteran's injury; however, on the second and third pages, she discusses an unrelated disorder, basil cell carcinoma. Thus, this memorandum is of little probative value concerning the issue on appeal. Finally, the Board finds the various medical treatises and articles concerning bony injuries and carpal tunnel syndrome to be of limited probative value in the present case. The Court has held that "[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise 'is too general and inconclusive'." Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). Medical treatise evidence may indicate enough of a basis of a generic relationship to establish "a plausible causality based on objective facts." Mattern, 12 Vet. App. at 228 (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). In the present case, while the Board finds these articles too general to establish an etiological nexus between any current disorder and the Veteran's in-service injury to the right hand, they do suggest a possible nexus with service, triggering VA's duty to assist the Veteran by obtaining additional medical development. 38 U.S.C.A. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the Veteran was afforded a VA examination in January 2010. The claims file was reviewed by the examiner in conjunction with the examination. X-rays and bone scans were conducted, as well as physical evaluation. X-rays of the right hand indicated a remote fracture at the base of the 2nd metacarpal, but were otherwise negative for any traumatic arthritis of the right hand. A bone scan of the right hand was likewise negative for traumatic arthritis. The examiner attempted to confirm carpal tunnel syndrome via an EMG study, but the Veteran was unable to tolerate the study, and it was discontinued. Carpal tunnel syndrome was suspected by the examiner, but could not be confirmed. The examiner disagreed with the July 2009 reports from the private examiners, and found no evidence of arthritis of the right hand or any other residuals attributable to the in-service right hand injury. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Therefore, the Board finds the VA examiner's opinion to be of great probative value. Even assuming the Veteran has a current diagnosis of traumatic arthritis, such a diagnosis was rendered many years 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 and 38 C.F.R. §§ 3.307, 3.309 do not apply. The Veteran has himself alleged that he has traumatic arthritis and carpal tunnel syndrome of the right wrist as a result of his in-service injury to the right hand. 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 traumatic arthritis of the right hand, 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. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in February 2003, January 2004, and November 2009 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. Additionally, such notice was first provided prior to the initial determination on appeal. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. With respect to the Dingess requirements, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Because, however, his service connection claim is being denied, there is no prejudice in issuing a final decision in the present case, and any questions as to the appropriate disability rating or effective date to be assigned are moot. 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, most recently in January 2010, 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. VA has also attempted to obtain Social Security Administration records associated with the Veteran's claim for Social Security Disability benefits. See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In a November 2009 response, however, the Social Security Administration stated no such records were available. In April 2005, the Veteran testified before an Acting Veterans Law Judge. During the hearing, the 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 right hand disorder, claimed as traumatic arthritis and/or carpal tunnel syndrome is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs