Citation Nr: 1314023 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-00 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right hand disorder, including degenerative joint disease, and including as secondary to a service-connected postoperative right femur fracture, with right knee disability. 2. Entitlement to service connection for a left hand disorder, other than foreign bodies at the base of the thumb, including degenerative joint disease and Dupuytren's contracture, and including as secondary to a service-connected postoperative right femur fracture, with right knee disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active duty service from September 1966 until August 1970. This matter originally came before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board Remanded the appeal in February 2010 and in April 2011. At the time of the April 2011 Remand, all issues other than the three claims listed on the title page of this decision were addressed in a final decision. No aspect of any claim other than the three claims listed on the title page is before the Board for appellate review at this time. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing held at the RO, via videoconference, in March 2009. The claim for service connection for a disorder of the right hand and the claim for TDIU benefits are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the medical evidence establishes that degenerative disease of the left hand and Dupuytren's contracture of the left hand are unrelated to an accident incurred in service or the Veteran's service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for degenerative disease of the left hand and Dupuytren's contracture of the left hand are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a left hand disorder other than foreign bodies at the base of the left thumb. Before assessing the merits of the appeal, VA's duties to the claimant must be examined. VA's duties to the claimant The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Under the VCAA, VA has a duty to inform the Veteran 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). 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). The claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify the Veteran of the criteria for service connection was satisfied by way of an initial letter sent to the Veteran in August 2006. The letter specifically addressed the criteria for service connection, and the letter included information complying with Dingess. Additionally, the Board's February 2010 Remand and letters issued following that Remand provided additional information to the Veteran regarding the evidence required to establish service connection for left hand disorder. The Veteran does not allege that he has been prejudiced by any lack of notice. No defect in notice is apparent from the record. In this case, the Veteran received pre-adjudicative notice and numerous post-adjudicative notices followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran testified at a hearing before the undersigned in March 2009. At that time, the Board member discussed with the Veteran the Veteran's belief that his disorders of the hands bilaterally were due to the accident in service. The Veteran was advised that there was no dispute that he sustained an accident in service, and that the additional evidence required was medical evidence and opinion to substantiate the claim. Transcript (Tr.) March 2009 Videoconference hearing at 18-22. The Veteran requested additional VA examination. The Veteran's discussion of the evidence at the hearing before the Board demonstrates that the Veteran understood what evidence was necessary to substantiate his claims regarding the left hand. 38 C.F.R. § 3.103 (2012); Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010). In any event, as noted above, additional notice was issued following the Board's 2010 and 2011 Remands. If any notice deficiency remained following the Veteran's hearing, that deficiency was addressed in the post-hearing communications to the Veteran. The Board finds that any prejudice due to an error in notice has been overcome in this case by the complete development conducted following the 2010 and 2011 Board Remands. The record demonstrates that the Veteran has actual knowledge of the evidence required to substantiate the claim at issue. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Duty to Assist Next, VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records were obtained prior to the Board 2010 Decision and Remand. VA treatment records have been obtained. VA examinations of the hands were obtained, with the most recent examination conducted in July 2011. The evidence of record is voluminous. As the Veteran has not identified any additional evidence regarding treatment of the left hand, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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). Claim for service connection 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, 1131. In a recent decision, the Court of Appeals for the Federal Circuit (Federal Circuit) has clarified the interpretation of the methods of establishing service connection under 38 C.F.R. § 3.303. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The criteria for service connection under § 3.303(a) are satisfied, according to the Federal Circuit, when a three-element test is met. The evidence must establish (1) the existence of a present disability; (2) 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). Subsection (a) also refers to "each disabling condition...for which [a Veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Id. If a Veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the Veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the Veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Id. The second way to establish service connection set forth in § 3.303(b) is restricted to chronic diseases defined as such by VA regulation. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and the Veteran's service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. The Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed § 3.309(a) regardless of the point in time when a Veteran's chronic disease is either shown or noted. Id. Under 38 U.S.C.A. § 1101, arthritis, also called degenerative joint disease (DJD), is defined as a chronic disease. Thus, arthritis may be presumed to have been incurred in service, if manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may also be established for arthritis of the left hand in this case if there is proven continuity of symptomatology. Service connection may also be granted when a claimed disability is found to be proximately due to or the result of (secondary to) a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Aggravation is defined for purposes of Veterans' benefits as a permanent worsening of the underlying condition; a temporary flare-up of symptoms, alone, does not constitute aggravation. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible). Facts and analysis The Veteran was injured in a motorcycle accident during his service, in 1968, when he was hit by a driver who was charged with driving while intoxicated. The Veteran incurred a fracture of the right femur which required internal fixation; the internal fixation devise was later removed. The Veteran had surgical treatment of the right foot as well. The Veteran's right hip, left foot, and right knee were also injured. The Veteran first sought service connection for the residuals of his in-service accident in 2006. He has been granted service connection for the residuals of right femur fracture, degenerative joint disease (DJD), right hip, for disabilities of each foot, and for scars. By a rating decision issued December 2012, service connection was granted for status post left hand/thumb foreign bodies. The Veteran contends that he is entitled to service connection for DJD of the left hand and a contracture of the left hand. The examiner who conducted January 2007 VA examination determined that the Veteran had DJD, left hand, Peyronie's disease, and that foreign bodies were shown at the base of the left thumb. However, the examiner did not provide an opinion as to whether the three diagnosed disorders of the left hand were or were not related to the Veteran's service. For information only, the Board notes that Peyronie's disease is a painful fibrous curvature affecting the penis. Dorland's Illustrated Medical Dictionary 548 (31st ed. 2007). Following the Board's 2010 Remand, the Veteran was afforded VA examination of the left hand. At that time, the examiner noted the Veteran's report that his left hand was more painful than his right hand. The Veteran reported pain in the knuckles, thickening in the palms of both hands. He could not recall the date of onset of the problems. The examiner concluded that the Veteran had degenerative joint disease in the left hand, but that this disorder was unrelated to the accident in service or to injuries incurred in service or any other incident of the Veteran's service. As the Board noted in its 2011 Remand, the examiner did not discuss the findings of the radiologic examination of the left hand conducted in 2007. The examiner who conducted the 2010 VA examination provided an addendum in July 2011. The examiner stated that the foreign objects in the left thumb region were due to an injury, which, historically, was likely related to the accident in service, even though there was no scar. However, the examiner opined, the Dupuytren's contracture and the degenerative joint disease of the left hand were unrelated to the accident or any specific incident. Rather, the examiner opined, the DJD of the hand was a result of the aging process. The examiner explained that the widespread changes in the hands were not localized and therefore could not be related to a specific injury. The examiner also explained that the Dupuytren's contracture of the left hand was a degenerative change process, and that Dupuytren's contracture is not due to trauma, and was not due to a specific injury. The Board notes that Dupuytren's contracture is defined as a disease of the palmar fascia resulting in flexion contracture of a finger or digit of the hand caused by shortening, thickening, and fibrosis of the palmar fascia. Dorland's Illustrated Medical Dictionary 416 (31st ed. 2007). The 2011 opinion is favorable to the claim for service connection for foreign bodies at the base of the thumb. The opinion is unfavorable to service connection for any other disorder of the left hand, as the examiner found that foreign bodies did not result in atrophy of the thenar eminence or any muscle, did not result in a neurologic deficit, and opined that neither the accident nor the foreign bodies caused DJD or Dupuytren's contracture of the left hand. The record reflects that the Veteran worked as a self-employed contractor and in construction following his 1970 service discharge through the date of submission of the claim on appeal, a period of more than 35 years. The examiner opined that the Veteran's current left hand disorders, other than foreign bodies at the base of the thumb, are consistent with the aging process. In particular, the examiner noted that the Veteran had generalized DJD bilaterally, and had thickened fascia (Dupuytren's contracture) in both hands even though the left hand had embedded foreign bodies. The only evidence favorable to the claim is the Veteran's own contention that all current disorders of the left hand began in service. However, the examiner's opinion is more persuasive than the Veteran's lay report of continuity of symptoms. Although the Veteran reported that he had left hand pain chronically and continuously after his accident, there is no record that he reported such pain in service or sought evaluation for left hand pain. The service separation examination discloses no abnormality of or complaints regarding the left hand. The Veteran does not contend that he sought medical evaluation for left hand pain proximate to his service. There is no record that the Veteran sought evaluation for left hand pain during the first 35 years after his service discharge while he was working in construction. Therefore, the examiner's opinion that the current left hand disorders, other than the service-connected foreign bodies in the region of the thumb, are the result of aging rather than of trauma is more consistent with the record as a whole and is more persuasive than the lay statements that there was chronicity and continuity of pain since 1968. Additionally, the examiner provider several items of medical knowledge as the bases for his rationale, raising the persuasive value of the opinion. The preponderance of the evidence is against a finding that generalized DJD of the left hand was present within one year after the Veteran's service or is the result of an accident in service. Thus, the criteria for service connection for arthritis of the left hand are not met, nor may arthritis be presumed related to service, since there is no evidence that DJD was present within one year following service, given the diminished probative value assigned to the Veteran's report of chronicity and continuity of pain from 1968 to the present. The evidence also preponderates against a finding that Dupuytren's contracture was incurred during or as a result of an accident in service, or aggravated as a result of service. The claim for service connection for a disorder of the left hand other than foreign bodies in the region of the base of the thumb, to include DJD or Dupuytren's contracture, must be denied. ORDER The appeal for service connection for a disorder of the left hand other than foreign bodies in the region of the base of the thumb, to include DJD or Dupuytren's contracture, is denied. REMAND In its 2010 and 2011 Remands, the Board directed further development of the Veteran's claim for service connection for a disorder of the right hand, including degenerative joint disease, and including as secondary to a service-connected postoperative right femur fracture, with right knee disability. Medical opinion was obtained, including opinion as to the etiology of disorders of the right hand, in a July 2011 addendum. However, there is no notation in the December 2012 rating decision that the appeal for service connection for a right hand disorder, including degenerative joint disease, was considered. There is no discussion of the appeal for service connection for a disorder of the right hand in a December 2012 supplemental statement of the case (SSOC), in a January 2013 SSOC, or in a February 2013 SSOC. The Veteran is entitled to notice of a decision regarding the appeal for service connection for a disorder of the right hand. The claim must be Remanded. The Board directed further development of the claim for TDIU. Such development should be conducted. Stegall v. West, 11 Vet. App. 268 (1998) (substantial compliance with Remand instructions required). The Veteran has indicated that he receives benefits from the Social Security Administration (SSA) based on his age, but had not indicated if he has any evidence of application for any benefits based on disability from a source other than SSA. Afford the Veteran an opportunity to provide such evidence, or any other evidence that he is unable to work as a result of his service-connected disabilities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Afford the Veteran an opportunity to submit or identify any evidence that he has applied for disability benefits from any source, that he has applied for but not obtained employment, or to submit or identify clinical evidence related to the severity of his service-connected disabilities or the effect of those disabilities on employability. 2. Obtain all VA clinical records since July 2011 and any other clinical evidence from public or private sources which the Veteran reasonably identifies that he otherwise does not submit. 3. If the Veteran submits additional evidence as to a right hand disorder, or VA clinical records disclose treatment of a disorder of the right hand, consider requesting an addendum from the examiner who provided prior examination of the Veteran's hands, or VA examination, if necessary in light of the additional evidence. 4. Then, review the Veteran's claims file and any new information obtained to ensure that the foregoing development action has been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. This may include obtaining any additional VA examinations or opinions. If further action is required, it should be undertaken prior to further adjudication of the claim. 5. Thereafter, readjudicate each claim on appeal, including adjudication of the claim for TDIU on a schedular basis under 38 C.F.R. § 4.16(a), and if not granted on that basis, consider an extra-schedular basis under 38 C.F.R. § 4.16(b). If either claim is not granted to the Veteran's satisfaction, send him and his representative an SSOC that includes a summary of the evidence and discussion of all pertinent regulations. The Veteran and his representative should be given an opportunity to respond to the SSOC before returning the claims file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs