Citation Nr: 1315380 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-03 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral hand disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2007 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The issue was previously remanded in December 2012 for additional development to include obtaining a VA medical examination. The Veteran underwent a VA examination in February 2013. The Board finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's currently diagnosed hand disability is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A bilateral hand disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and 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. VCAA letters dated in February 2007 and January 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, this letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA medical records are in the file. The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran was provided a VA examination in February 2013. The February 2013 examiner considered the Veteran's claims of experiencing symptoms of hand pain while on active duty, as well as the service treatment records, post-service treatment records, and conducting a physical examination. The examiner concluded that the claimed disorder was less likely than not incurred in or caused by the Veteran's service. Therefore, as the opinion was based on review of the claims file, including the Veteran's statements and other material favorable to the Veteran's claim, and provided an extensive rationale for the opinion provided, the Board concludes that the opinion provided is adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection for malaria. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as arthritis, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran claims he has a bilateral hand disorder which started during active service. Service treatment records, including a July 1981 separation examination report, are negative for any complaints of findings of abnormalities of the upper extremities except for a March 1979 note indicated the Veteran fell down a ladder and caught his arm between steps. The assessment was a bruise on the lower left forearm with no apparent bone or nerve damage. A February 2001 private treatment report indicates the Veteran has developed tenderness and pain after handling mail with the left hand and with repetitive use of the wrist. He reported that since this occurred, the cyst has become quite large and apparently because he moves his wrist back and forth with flexion and extension has created a cyst over the dorsum of the hand that has become quite painful. Upon examination, the examiner noted that there appeared to be a large swelling over the dorsum of the hand with inflammatory reaction affecting the hand, particularly the III and IV digits along the axis of the IV digit only in addition to the wrist area. The diagnosis was dorsal ganglion cyst affecting the left wrist. X-ray findings appeared to be negative. A billing report from Valley Hand and Plastic Surgery indicates the Veteran underwent excision of the ganglion cyst in the wrist in July 2001. In a May 2007 VA progress note, the Veteran complained of hand pain to dorsum bilaterally. The examiner noted his symptoms are non-irradiating and get better after the morning. Upon physical examination, the examiner noted the hand were not warm or erythematous without edema. The assessment was osteoarthritis of the hands. In an undated letter, the Veteran's wife reported that the Veteran would complain about his hands hurting, especially on payday, when he would do payroll for the whole ship. He would complain to his superior, and they would just advise him to "tough it out" or he was too young to be complaining. As time went by, she reported that his symptoms worsened and he would continue to complain about both hands. Since then, he has had surgeries on both hands and still occasionally complains. A November 2010 VA progress note indicated a history of osteoarthritis of the hands. Physical assessment included no edema of the extremities. During a February 2013 VA examination, the Veteran reported he developed a ganglion cyst on the left hand in the late 1980s and had it surgically removed. He denied osteoarthritis in the hands. The Veteran reported that while in the Navy, he jammed his left forearm going down the stairs. He stated that he saw the medic and was placed in a sling. The examiner noted that the Veteran's service treatment records show a visit in March 1979 for his left lower forearm after a fall down the stairs. He had mild swelling, and was treated conservatively with no further visits. He reported continued problem with it over the years in the form of occasional decreased hand grip strength on the left. He did not seek treatment over the years. He denied pain subjectively until the physical exam was performed. The examiner noted that VA progress notes show no complaints of the forearm. There are two visits with the words "osteoarthritis of the hands" but no specific complaints are seen in these notes. Upon physical examination, the examiner found limitation of motion or evidence of painful motion in all fingers of the left hand. The diagnosis was reduced range of motion of the hand. Imaging studies of the hands were performed and indicated no abnormal findings. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The activities of a disbursing clerk consist of handling lightweight letters and mail. Chronic restricting conditions of the hands usually develop with more rigorous activity or more significant trauma. The only documented trauma is to his forearm, which would not cause any chronic restriction. The Veteran continues to do the same type of work now since his military service. Therefore, given the overall more years he has been doing work outside of the military, there is more of a chance his current limitation is due to his work after the military service. The examiner determined it is less likely than not that the Veteran's current hand condition is due to his military service. Initially, the Board notes that there has been no evidence of a current diagnosis of a right hand disorder. Though VA progress notes indicate an assessment of osteoarthritis of the hands, the diagnosis has not been confirmed by x-ray, and the March 2013 VA examination was negative for any findings of a right hand disorder, to include negative x-ray testing. The Board finds these recent x-ray results to be the most probative evidence of record as to whether the Veteran has arthritis in his right hand. Therefore, without a current diagnosis of a right hand disorder, service connection for a right hand disorder is not warranted. Although a specific diagnosis of a left hand disability was not determined, the Board concedes that there was objective evidence of limitation of motion of the fingers of the left hand. Thus, for the purpose of this decision, the Board will concede that the Veteran has a current disability in his left hand. However, from the Veteran's July 1981 separation from service until 2001, 20 years, there is no medical evidence of any diagnosis of a left hand disorder. Additionally, the only medical etiology evidence of record, in the Veteran's March 2013 VA examination report, indicates that it is less likely than not that the Veteran's current left hand disability is related to service to include a left forearm injury. The Board recognizes the Veteran and his wife's assertions in multiple letters, in which they stated that he has had hand pain since working as a clerk during active duty service. The Board finds it significant, however, that he specifically denied any history of problems in the upper extremity at separation. Furthermore, upon receiving treatment in 2001, the Veteran specifically reported that he had developed pain and tenderness in his left hand while handling mail at his job. Although an approximate date of onset was not reported, the clear implication of the Veteran's report was that his symptoms were of relatively recent onset and occurred during the course of performing his work during post-service employment. For these reason, the Board must find the assertions of the Veteran and his wife that he began experiencing chronic symptoms in service not credible. In this regard, the Board is mindful of the decision in Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006), wherein the United States Court of Appeals for the Federal Circuit determined that the Board erred by finding that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. The instant case, however, is distinguishable from Buchanan in that the Board is not relying solely on the fact that there are no documented complaints regarding a left hand disorder for two decades after service. Rather, the Board is relying also on the fact that the Veteran specifically denied a history of upper extremity problems at separation and on the Veteran's own description to a private physician in 2001 of the circumstances under which his symptoms began. Thus, the record in this case does not merely reflect a lack of documentation pertaining to the claimed disability, but instead, it contains an instance in which the Veteran specifically denied having any relevant symptoms. Additionally, he did not describe bilateral hand problems since service to treating personnel during the time he was treated for his ganglion cyst or any other musculoskeletal complaints. The Veteran had every opportunity to discuss the continuity of complaints to treating personnel, but did not do so. In fact, he affirmatively tied the onset of symptoms to performing his duties during post-service employment. Thus, there is affirmative evidence, rather than merely a lack of contemporaneous evidence. Consequently, the Board concludes that the current assertions by the Veteran as to experiencing a continuity of symptomatology since service are not credible. Having found that there is no credible evidence of a continuity of symptomatology since service, the Board finds that the Veteran, as a lay person, is not otherwise competent to link his current left hand disorder to either his in-service injury or the symptoms he experienced in service. With specific regard to the left ganglion cyst that was treated in 2001, the Board finds that there is simply no lay or medical evidence in the record showing that the Veteran's cyst was incurred during, or is otherwise related to, service. In that regard, the Board notes an etiology opinion is not expressed anywhere in the record. Indeed, the Board notes that the Veteran does not specifically assert that the cyst was related in any way to his active duty service. In fact, he specifically reported that the cyst first appeared in the late 1980's, which is several years after his separation from service. Finally, there is no evidence showing that the left ganglion cyst has persisted or spread, thereby manifesting as an ongoing and current disability. Under the circumstances, there is simply no basis in the record to support the grant of service connection for ganglion cyst of the left hand. In summary, considering the medical evidence of record, and the Veteran's testimony, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a bilateral hand disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49 ORDER Entitlement to service connection for a bilateral hand disorder is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs