Citation Nr: 1315063 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-14 840 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a left hand / wrist disorder, to include as secondary to service-connected residuals of a fracture of the right wrist. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from September 1952 to September 1955. The issue on appeal first came to the Board of Veterans' Appeals (Board) from an August 2008 rating decision issued by the RO. In January 2013, the Board remanded the case to the RO for additional development. After completion of this development by the RO, the case was returned to the Board for the purpose of appellate disposition. In the same January 2013 decision, the Board denied the issue of an increased rating for the service-connected residuals of a fracture of the right wrist. Thus, this issue is no longer on appeal before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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). FINDING OF FACT The currently demonstrated chronic left hand / wrist arthritis is shown to be due to a remote injury that as likely as not was sustained in connection with the only documented incident of trauma in December 1954 when the Veteran fell and sustained a fracture of the right wrist during his period of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by left hand / wrist osteoarthritis is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist For the service connection for a left wrist / hand disorder issue, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in March 2008, October 2008, and February 2013. In any event, since the Board is granting the service connection issue, there is no need to discuss whether there has been compliance with the notice and duty to assist provisions of VCAA because even if, for the sake of argument, there has not been, this is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Governing Laws and Regulations for Service Connection Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306. Under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). See also 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), with chronic disease shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear cut clinical entity, at some later date. 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity of symptomatology. 38 C.F.R. § 3.303(b). 38 C.F.R. § 3.303(b) also provides another route by which a Veteran can establish service connection for a chronic disease - by way of continuity of symptomatology. Continuity of symptomatology after discharge is required only where the condition noted during service (or in the presumptive period) is not, in fact, 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity 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 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. 38 C.F.R. § 3.303(b). See also Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Id. at 1337. Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be demonstrated by showing using applicable presumptions, if available. Combee, 34 F.3d at 1043. As to presumptive service connection, some diseases on the other hand are chronic, per se, such as arthritis, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service. Even this presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Federal Circuit recently held that the regulation creating a presumption of service connection for "chronic diseases" manifesting during service or within one year of service, and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). In the same case, the Federal Circuit clarified that the continuity of symptomatology language in § 3.303(b) also "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Id. at 1335. With respect to the current appeal, this list includes arthritis as "a chronic disease." See 38 C.F.R. § 3.309(a). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Service Connection for a Left Wrist / Hand Disorder The Veteran contends that he is entitled to service connection for a left hand / wrist disability, as he believes that he initially injured his left wrist during the same fall in service in December 1954 that caused a fracture of the right wrist. In addition, the Veteran's representative has indicated that the Veteran's problems with the left hand and wrist may stem from overuse of the left hand due to his service-connected right wrist disability. Stated another way, the Veteran's representative has suggested secondary service connection as an alternative basis for the grant of the benefit. See September 2008 Notice of Disagreement (NOD); December 2012 Informal Hearing Presentation (IHP). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110 , 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In VA treatment records dated in 2008, a VA physician diagnosed left wrist degenerative joint disease (DJD). The Veteran takes prescription medication to control his discomfort. After securing VA X-ray studies, a February 2013 VA examiner confirmed a diagnosis of osteoarthritis in the left wrist and hand. Thus, the Veteran clearly has a current left hand / wrist disorder. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). He thus meets this threshold requirement for service connection. The service treatment records (STRs) do not document a left hand or wrist injury, or complaints related to the left hand or wrist. However, they do verify that the Veteran fractured his right wrist in December 1954 as a result of falling off of a telephone pole. In December 1954, the veteran underwent closed reduction surgery for the fracture and the right wrist was then immobilized in a cast. Notably, this was a serious injury as he fell over 30 feet. He is already service-connected for right wrist residuals related to this in-service 1954 injury, to include osteoarthritis. Moreover, the Veteran is service-connected for headache and dental residuals from this injury as well. Post-service, the Veteran's VA outpatient treatment records reflect that the Veteran complained of bilateral hand pain in March 2008. He was referred for X-ray studies, and the VA physician suspected DJD. It is significant that he developed this osteoarthritis in the left wrist, in addition to the already service-connected right wrist. With regard to a nexus under 38 C.F.R. § 3.303(a), there is some probative evidence of a nexus between the Veteran's present left wrist / hand osteoarthritis and the Veteran's documented in-service fall in 1954. Holton, 557 F.3d at 1366. Specifically, the February 2013 VA examiner concluded that the impression of the X-ray study in the left wrist and hand was "absence of ulnar styloid process consistent with remote injury." (emphasis added). It was noted the injury was not acute. And merely because a left hand / wrist disorder was not diagnosed during service, does not preclude service connecting it where, as here, there is probative medical evidence relating the disorder to a previous remote injury that would be consistent that suffered by the Veteran in the serious fall during service. See 38 C.F.R. § 3.303(d). Significantly, there is also no direct evidence of an intercurrent, post-service injury to the left hand / wrist. To the extent that the Veteran now seeks to link these left wrist injury residuals to the documented fall during service, the Board finds such assertions to be credible for the purpose of establishing that he did not incur another episode of significant trauma to the left wrist after service. With regard to secondary service connection, the Board acknowledges that the February 2013 VA examiner opined that the left hand / wrist condition is not proximately due to or the result of the service-connected right wrist disability. In addition, the VA examiner also opined that there was no evidence the left wrist injury was aggravated in severity beyond the natural progress of the condition by his service-connected right wrist residuals. However, the VA examiner failed to provide a rationale for her opinion. The VA examiner also failed to address the Veteran's specific, viable contention that discomfort in the service-connected right hand caused "overuse" of the left hand, leading to osteoarthritis. In this regard, a medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Court has held that the weight of a medical opinion is diminished where the basis for the opinion is not stated. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Swann v. Brown, 5 Vet. App. 229, 232 (1993). Regardless, in the present decision, the Board is awarding service connection for a left hand / wrist disorder on a direct basis to service, thereby negating the necessity of a remand to the RO for further clarification from the February 2013 VA examiner. After carefully reviewing the entire record, the Board finds the evidence to be in relative equipoise is showing that the current left wrist and hand degenerative changes as likely as not are due to an injury sustained in the documented fall during the Veteran's period of active service. Accordingly, in resolving all reasonable doubt in the Veteran's favor, service connection for left hand / wrist osteoarthritis is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board does not express an opinion as to the severity of the left hand / wrist osteoarthritis for the purpose of assigning a disability rating, as the RO will undertake this decision on implementation of this action. ORDER Service connection for a left hand / wrist osteoarthritis is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs