Citation Nr: 1309530 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 09-11 368A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for arthritis of the right hand, to include as secondary to service-connected residuals of a right fifth metacarpal fracture. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from May 1986 to July 1986, June 1987 to September 1987, and additional service in the United States Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2012, the Board remanded this claim for additional development. The Board finds that reasonable attempts were made to fulfill the Board's remand requests, and cannot complete the actions without cooperation from the Veteran. Therefore, the Board concludes that further remand at this time would be futile. Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008) (only substantial, not strict, compliance with terms of Board remand is required). FINDING OF FACT The most probative evidence shows that the Veteran's current arthritis of the right hand is not due to an injury in service, was not manifest to a compensable degree within one year of discharge, and is not proximately due to or aggravated by a service-connected disability, including residuals of a right fifth metacarpal fracture. CONCLUSION OF LAW Arthritis of the right hand was not incurred in or aggravated by active service, may not be presumed to have been incurred in active service, and is not proximately due to or aggravated by a service-connected disability, including residuals of a right fifth metacarpal fracture. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was provided appropriate notice in letters dated in October 2008 and September 2012, both prior to and subsequent to the rating decision on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent February 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence since the Board's September 2012 remand, and the Veteran failed to respond to the September 2012 letter requesting authorization to obtain private medical records from Harris County Hospital and Dr. McCormack as directed in the remand. VA has obtained an examination with respect to the claim on appeal, and the Veteran failed to report to the most recently requested examination that was scheduled for him in September 2012 in conjunction with the Board's remand. The Veteran has not expressed any explanation for his failure to report to the examinations and he has not otherwise demonstrated good cause for missing the examination. He has also not expressed, either directly or through his accredited representative, that he is willing to report to another examination. The duty to assist is not always a one-way street and if a Veteran desires help with his claim he must cooperate with VA's efforts to assist him. Wood v. Derwinski, 1 Vet. App. 190 (1991). There is no indication that the recent mailings to the Veteran have been undeliverable. Thus, the Board finds that there has been substantial compliance with the September 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, VA has satisfied the duty to assist provisions of law. Consequently, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology of a psychosis from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, such as arthritis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. Further, a disability which is aggravated by a service-connected disability may be service- connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310, Part 4 (2012). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362 (2001). Competency of evidence must be distinguished from weight and credibility, which are factual determinations in determining the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). It is 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. Winsett v. West, 11 Vet. App. 420 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion. Bloom v. West, 12 Vet. App. 185 (1999). If all the evidence is in relative equipoise, reasonable doubt should be resolved in the veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service medical records show that in July 1987, the Veteran was seen for complaints of blunt trauma to the dorsum of the right hand with moderate swelling. He was referred to orthopedics and was assessed with a boxer's fracture of the fifth metacarpal. There was no separation examination report. A June 2005 QTC examination report noted that a right hand x-ray was abnormal and findings showed there was minimal deformity of the proximal IP joint of the fifth finger, consistent with mild degenerative arthritis. In a September 2006 VA examination report, the Veteran examiner stated that the articular joint of the fifth metacarpal joint was totally normal without any arthritic changes. The examiner stated that the Veteran had arthritic changes in the rest of the wrist and other areas of the hand that had no relationship with the Veteran's service-connected fractured fifth metacarpal. An April 2008 VA medical record notes that the Veteran had a right small finger boutonniere deformity, status post proximal interphalangeal (PIP) joint injury in service. The Veteran noted pain with activity and occasional cramping. The assessment was supple boutonniere deformity of right small finger and PIP joint post traumatic arthritis. A November 2008 VA examination report shows that the Veteran complained of right hand pain in the fifth finger and rest of the hand and wrist. He also reported limitation to the use of his hand due to pain. X-rays were taken. The examiner diagnosed post-traumatic changes in the fifth metacarpal and the distal aspect of the proximal fifth phalanx with mild flexion deformity of the proximal interphalangeal joint, fifth finger. Problems associated with the diagnosis were residuals of remote fracture of the right fifth metacarpal. The examiner found that the Veteran had narrowing of the PIP joint in the right hand that could be due to HIV-related arthritis. It was not associated with the fifth metacarpal fracture. The examiner further opined that the Veteran's current right hand arthritis was not caused by or a result of his fracture of the right fifth metacarpal. The examiner stated that he could not find any related link between the Veteran's remote fracture and the wrist pain and hand PIP changes, and explained that trauma in one site of the hand will not elicit arthritis in the rest of the hand. The examiner recognized the radiological changes could be related to osteoarthritis of the wrist and probably inflammatory arthritis of the hand which was unrelated to any previous trauma. The examiner stated the Veteran's joint pain may have been related to his HIV status. The examiner then discussed medical literature in support of that conclusion. In a March 2009 letter, O.E. McCormack, D.O., from Harris County Hospital District noted that the Veteran was under his care and had a history of a right hand fracture. Dr. McCormack referenced a December 2008 x-ray of the right hand and findings of a deformity of the fifth metacarpal compatible with a remote boxer's fracture. The impression was no acute osseous abnormalities. Dr. McCormack opined that while the Veteran had a history of HIV infection diagnosed in 1991, the prior fracture and current bone disease/symptoms did not appear related to HIV or any manifestation of HIV infection. The Board finds that the preponderance of the evidence is against the claim for service connection for arthritis of the right hand, to include as secondary to service-connected residuals of a right fifth metacarpal fracture because the most probative evidence of record, the November 2008 VA examination report, concluded that the Veteran's currently manifest right wrist and hand arthritis was not related to his military service, including the residuals of a right fifth metacarpal fracture. Winsett v. West, 11 Vet. App. 420 (1998). That opinion was based on a full review of the record, the Veteran's statements regarding the initial injury, his reports of continuity of symptomatology, and a thorough clinical evaluation. Bloom v. West, 12 Vet. App. 185 (1999). The Board finds that the private medical statement presented by the Veteran from Dr. McCormack dated in March 2009 is lacking in probative value because the opinion was based on an inaccurate factual history provided by the Veteran. Dr. McCormack noted that the Veteran gave a history of a right hand fracture during his military service. However, the service treatment records clearly show that the fracture was limited to the fifth metacarpal bone and did not affect any other bones of the right hand. In sum, the statement was made based solely on the Veteran's reported history, and the history the physician recited was not entirely consistent with the evidence contained in the record. LeShore v. Brown, 8 Vet. App. 406 (1995) (mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.); Reonal v. Brown, 5 Vet. App. 458 (1993); Elkins v. Brown, 5 Vet. App. 474 (1993). Additionally, Dr. McCormack did not posit any relationship between the Veteran's current right hand arthritis and the residuals of a right fifth metacarpal fracture. Dr. McCormack merely disagreed with the November 2008 VA examiner's statement that the Veteran's arthritis could be related to his HIV status and that the current symptoms did not appear to be related to his HIV or a manifestation of the HIV infection. Accordingly, the Board finds that the opinion provided by Dr. McCormack is of limited probative value as to the causation of the right hand or wrist arthritis being due to service or to a service-connected disability. The opinion serves only to provide negative evidence against one source of causation. Bloom v. West, 12 Vet. App. 185 (1999). Moreover, the Board observes that there are no medical records documenting right hand complaints, other than in the right fifth metacarpal which is already service-connected, to satisfy the continuity of symptomatology requirement of § 3.303(b) until more than 10 years after discharge, and arthritis of the hand or wrist was not shown on X-ray reports within one year of the Veteran's discharge from service. A prolonged period without documented 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 disease was incurred in service, which resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). To the extent that the Veteran and others have alleged continuity of symptomatology since discharge, the Board finds that they are competent to report about hand pain or witnessing complaints of hand pain during service and after his discharge. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994) (Veteran is competent to report symptoms because that requires only personal knowledge, not medical expertise, as it comes to him through his senses). Although lay persons are competent to provide opinions on some medical issues, the specific disability in this case arthritis falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Arthritis is a complex disease that requires specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions on etiology alone. Therefore, the Veteran's statements and the other lay statements of record cannot be accepted as competent evidence sufficient to establish service connection for a chronic disease listed in 38 C.F.R. § 3.309(a) pursuant to 38 C.F.R. § 3.303(b). Finally, the Board observes that there is no medical opinion relating the Veteran's currently diagnosed arthritis of the right hand to a service-connected disability, including the residuals of a right fifth metacarpal fracture. Specifically, the Board points out that the Veteran's case was remanded for a VA examination to obtain an opinion on this specific point. However, the Veteran failed to report to the scheduled examination. In the absence of competent medical, or competent and credible lay evidence that the Veteran's right hand or wrist arthritis is proximately due to or aggravated by the service-connected residuals of a right fifth metacarpal fracture, secondary service connection is not warranted. Accordingly, service connection for arthritis of the right hand may also not be granted on a secondary basis. 38 C.F.R. § 3.310 (2012). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for arthritis of the right hand, to include as secondary to service-connected residuals of a right fifth metacarpal fracture, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs