Citation Nr: 1310235	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  07-24 302	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for arthritis of the hands and fingers.

4.  Entitlement to service connection for arthritis of the wrists.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012).  

The Veteran, who is the appellant, served on active duty from August 1958 to August 1960 and from November 1961 to November 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in September 2008 and January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In April 2011 the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO.  A transcript of the hearing is in the Veteran's file.

In September 2011 the Board remanded the issues of entitlement to service connection for bilateral hearing loss, tinnitus and arthritis of the hands and fingers to the Originating Agency for further development, which has been accomplished.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board's action in September 2011 also remanded claims on appeal for service connection for arthritis of the spinal column, arthritis of the knees and multiple joint arthritis (combining claims for arthritis of the hips, wrists and ankles).  While the case was in remand status the Originating Agency issued a rating decision in October 2012 that granted service connection for disabilities of the thoracolumbar spine, bilateral hips, bilateral knees and bilateral ankles; the Originating Agency's rating decision represents a complete grant of the benefits claimed in regard to those issues and they are accordingly no longer on appeal before the Board.  





However, the Originating Agency did not address the issue of entitlement to service connection for arthritis of the wrists, so that issue remains on appeal before the Board.  

The issues of service connection for bilateral hearing loss and tinnitus are discussed in the Remand that Follows the Order section of the Decision below and are REMANDED to the Originating Agency.


FINDINGS OF FACT

1.  A disability of the hands and fingers to include arthritis was not manifested during service or to a compensable degree after discharge from service and is not etiologically related to service.

2.  Arthritis of the wrists as likely as not is due to or aggravated by service.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for arthritis of the hands and fingers are not met, nor may its incurrence or aggravation during service be presumed.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  

2.  The criteria for service connection for arthritis of the wrists are met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  






The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

Duty to Notify

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The RO provided pre- and post- adjudication VCAA notice by letters, dated in September 2005, in May 2008, in June 2008, in November 2008, and in December 2008. The Veteran was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. 





Additionally, the Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. 

As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370   (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112   (2004) (to the extent there was pre-adjudication notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim).
 
To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication.  The procedural defect was cured as after the RO provided content-complying VCAA notice the claims were readjudicated, as evidenced by the supplemental statement of the case in January 2013.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained service treatment records, service personnel records, VA treatment records, and private medical records.  In addition, the Veteran was afforded VA examinations in August and September 2005, February 2012, September 2012 and January 2013.  



The Board has reviewed the examination reports.  As the VA examiners reviewed the Veteran's medical history and identified the disabilities in sufficient detail and provided medical opinions supported by a rationale, the Board finds the VA examinations are adequate to decide the claims.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one).  

Also the September 2012 and January 2013 examination reports substantially complied with the requirements articulated in the Board's remand in August 2012.  Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

As the Veteran has not identified any additional evidence pertinent to the claims, and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim on appeal is required.  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. §§ 1110 (wartime service) and 1131 (peacetime service). 






Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

Several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and1131 as implemented in 38 C.F.R. § 3.303.

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 

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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 







Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply.

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 






If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).

Evidence

The service treatment records are silent as an injury to the hands, fingers, or wrists.  In August 1977, the e Veteran complained of pain in various joints including the hands, which was attributed to rheumatoid arthritis; however, neither rheumatoid arthritis nor osteoarthritis was subsequently confirmed in service by X-ray.  On discharge examination in July 1986 the upper extremities were "normal." 

After service on VA examination in June 1995, the VA e examiner noted mild stiffness of the wrists with minimal pain on motion.  Examination of the hands showed mild stiffness in the proximal interphalangeal (PIP) joints of both hands with minimal pain on motion, and grip strength was unremarkable.  X-ray of the hands showed mild osteoporosis bilaterally but was otherwise showed no significant abnormality and X-rays of the wrists were normal.  The diagnosis was tendonitis of h wrists and myositis and myalgias involving the hands with osteoporosis in the hands.  Rheumatoid arthritis was specifically not found in the wrists or hands.

In April 2002 on VA examination, the examination was silent as to current abnormalities of the wrists, hands, or fingers.    

In January 2007, the Veteran asserted that he currently had arthritis in his wrists.  .




In March 2007, Dr. J. Boone, a private orthopedic specialist, stated that the Veteran arthritis could be related to the service lifestyle and repetitive injuries in service.
  
In September 2007, a VA physician stated that the Veteran presented a copy of a letter by Dr. Boone, regarding severe polyarthritis resulting from traumatic injuries sustained in vigorous PT and related injury in service.  The VA physician stated that he agreed with Dr. Boone.

In November 2008, Dr. Boone stated that the Veteran was seen in service in December 1974 for swollen PIP joint, in 1976 for ankle pain, in 1978 for arthritis of the ankles, and in 1984 for arthritis of the feet.  Dr. Boone expressed the opinion that this more than confirmed the fact that the Veteran's present arthritis was service related.  Dr. Boone stated the Veteran's current pain as due to his service-connected disabilities.

VA records show that in December 2009 X-rays showed arthritis in the wrist, but not in the left hand was normal.  X-rays of the right hand showed degenerative change in the radiocarpal joint that was probably posttraumatic in nature with secondary degenerative changes.

In April 2011, the Veteran testified his arthritis was due to the wear-and-tear associated with service and he could not recall any specific injury.

On VA examination in October 2011, the VA examiner noted a history of arthritis in the wrists.  The VA examiner expressed the opinion that the wrist disability was at least as likely as not due to service.  The VA examiner stated that all joints with degenerative changes were a continuation or progression of the degenerative process in service.  The hands and fingers were not examined.  






On VA examination in January 2013, the Veteran denied any medical problems relating to his hands or fingers.  The diagnosis was degenerative joint disease (DJD) of the right IP joint.  There e was no diagnosis regarding the left hand.  The examiner stated that the Veteran's condition was not likely related to service.  The VA examiner stated the Veteran had only had one examination in service that showed polyarthritis, which had resolved by examination in 1984.  The discharge examination showed no documented issues involving the hands or fingers and that the problems with the right hand were first manifested in 2009.  The VA examiner acknowledged the statement by Dr. Boone that "arthritis" was service-connected, but noted that this referred to the back and that Dr. Boone did not mention the hands or fingers.  The VA examiner stated that the current observations were consistent with aging rather than with in-service injury or a chronic condition.    

Analysis

Arthritis of the Hands and Fingers

Review of the evidence shows the Veteran complained during service of pain in the hands in August 1977, but there was no indication of any complaint about the hands or fingers thereafter.  

After service, X-rays of the hands in June 1995 did not show arthritis in either hand.  The Board finds this constitutes evidence that arthritis of the hands or fingers did not become manifest during service or to a compensable degree after discharge from service.

The current diagnoses of the hands and fingers include myositis, myalgias and osteoporosis (June 1995) and DJD of the right IP joint (January 2013).  

Accordingly, the first element of service connection - medical evidence of a current disability - is met. 



A veteran seeking disability benefits must establish not only the existence of a current disability, but also an etiological connection between service and the claimed disability.  Where an opinion is needed to link the current disability to a cause during service, a competent opinion of a medical professional is required.  

In this case the medical evidence is contradictory.  A VA physician in 2007 and Dr. Boone generally support the Veteran's contention that he has polyarthralgia etiologically related to service.  The VA examiner in January 2013, while acknowledging Dr. Boone's opinion, expressed the opinion that the Veteran specifically did not show a disorder of the hands or fingers that was likely related to service.

It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another.  As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators.  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008).   

Greater weight may also be placed on one physician's than another's depending on factors such as the reasoning employed by the physicians and whether or not (and the extent to which) they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  



In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  

The Board finds the opinion of the VA examiner in 2013 more probative than that of Dr. Boone or the VA physician in 2007.  Neither Dr. Boone nor the VA physician in 2007 referred to a current hand or finger disability and the opinions are not supported by a rationale and the opinions are essentially conclusory.  

By contrast, the VA examiner in 2013 had access to the full record (service treatment records and post-service VA and private treatment records) and provided an opinion supported by a rationale.  The opinion of the VA examiner is accordingly more fully compliant with the standards of Nieves-Rodriguez and is the more probative.

VA must consider all favorable lay evidence of record.  38 USCA § 5107(a). Accordingly, in addition to the medical evidence, the Board has considered the lay evidence offered by the Veteran in the form of his testimony and statements.

The Veteran is competent to describe symptoms of hand and finger pain in service and since service.  38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses).





And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran as a lay person is also competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

A disability of the hands and fingers, degenerative joint disease, is not a condition under case law that has been found to be capable of lay observation.  And the disability is not a simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, the disability cannot be perceived through the senses, for example, by visual observation, and therefore such a disability is not a simple medical condition.

Where, as here, there is a question of the presence or a diagnosis of a disability, which is not capable of lay observation by case law, and the disability is not a simple medication condition under Jandreau for the reason expressed, to the extent the Veteran's lay statements and testimony are offered as proof of the presence of the current disability in service and since service, the Veteran's lay statements and testimony are not competent evidence, and the statements and testimony are not admissible as evidence, that is, the Veteran's lay statements and testimony are not to be considered as competent evidence favorable to the claim. 

And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to identify the presence or diagnosis of arthritis of the hands and fingers.  Since the Veteran's lay statements and testimony are not competent evidence, the statements and testimony re not admissible as evidence, that is, the statements and testimony not to be considered as competent evidence favorable to the claim.




To the extent the Veteran's lay statements and testimony are offered as evidence of a causal relationship between the current disability and the events in service, the statements and testimony are inferences based on facts and are opinions rather than statements of fact. 

As previously explained the Veteran is not competent to diagnosis the current disability based on personal observation, either by case law or as a simple medical condition under Jandreau, therefore any inference based on what is not personally observable cannot be competent lay evidence. 

And it is not argued or shown that the Veteran or lay witnesses are otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between the current disability of the hands and fingers and joint pain in service.  For this reason, the Veteran's opinion is not competent evidence.  

Since the Veteran's opinion is not competent evidence, the opinion is excluded, that is, not admissible as evidence and cannot be considered as competent evidence favorable to claim. 

As the lay evidence is not competent evidence on the questions of the presence or diagnosis of the disability or of a nexus to service, the Board need not address credibility.

In sum, the preponderance of the evidence is against the claim of service connection for a disability of the hands and fingers and there is no doubt to be resolved.  Service connection for the claimed disability is not warranted.

Arthritis of the Wrists

On VA examination in October 2011, the VA examiner expressed the opinion that it was at least as likely as not that arthritis of the wrists was continuation or progression of the degenerative process in service.  


The opinion of the VA examiner is consistent with the opinions of Dr. Boone and the VA examiner in 2007 and is not contradicted by other medical evidence. Accordingly, the criteria for service connection for arthritis of the wrists are met.


ORDER

Service connection for arthritis of the hands and fingers is denied.

Service connection for arthritis of the wrists is granted. 


REMAND

On the claim of service connection for bilateral hearing loss and for tinnitus, a VA examination was conducted in October 2011.  Thereafter the Originating Agency obtained another VA audiological evaluation in January 2013, in which the audiologist provided an opinion but further stated that the Veteran should be examined by an ear-nose-throat (ENT) specialist for conductive hearing loss.  The Originating Agency subsequently submitted the file for review and "independent medical opinion," which was rendered by a Doctor of Podiatric Medicine (DPM) in January 2013.  

A medical professional is not competent to opine as to matters outside his scope of expertise.  LeShore v. Brown, 8 Vet. App. 406 (1995) citing Layno v. Brown, 6 Vet. App. 465, 469 (1995).  A podiatrist is not shown to be qualified to render an ENT opinion.  As the VA audiologist has stated that an ENT opinion is required in order to resolve the issue on appeal, the case must be returned for appropriate examination and opinion by an ENT specialist.





Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination by an ENT specialist to determine: 

Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that the current hearing loss or tinnitus or both are related to service.  

The Veteran's file must be provided to the VA examiner for review. 

2.  When the above development has been completed, adjudicate the claims of service connection for a bilateral hearing loss disability and for tinnitus.  If any the benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs