Citation Nr: 1316101	
Decision Date: 05/16/13    Archive Date: 05/29/13

DOCKET NO.  10-25 594	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee



THE ISSUE

Entitlement to service connection for right hand and thumb arthritis, to include as secondary to residuals of right fifth metacarpal fracture with arthritis and limitation of motion.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1953 to February 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In his June 2010 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge.  Thereafter, in an April 2013 letter, he requested that his hearing request be withdrawn.  See 38 C.F.R. § 20.704(e) (2012).

The Virtual VA electronic claims file has been reviewed; a review of the documents reveals no records pertinent to the issue on appeal.

In August and October 2012 the Veteran raised the issue of entitlement to increased ratings for service-connected right wrist arthritis and residuals of right fifth metacarpal fracture with arthritis and limitation of motion.  These issues have not been adjudicated by the agency of original jurisdiction, and the Board does not have jurisdiction over them.  Therefore, they are referred to the agency of original jurisdiction for appropriate action. 

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

Right hand and thumb arthritis was not present in service or manifested within one year after separation, and there is no competent medical evidence showing that the claimed disability is related to military service or was caused or made worse by service-connected right wrist arthritis or residuals of right fifth metacarpal fracture with arthritis and limitation of motion.

CONCLUSION OF LAW

The criteria for establishing service connection for right hand and thumb arthritis, to include as secondary to residuals of right fifth metacarpal fracture with arthritis and limitation of motion, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  38 C.F.R. § 3.159(b).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In this case, in a February 2009 letter the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, including what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The letter advised the Veteran to submit evidence from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability and the effect that the disability has on his employment.  The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The case was last adjudicated in May 2010.

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, private medical records, VA treatment records, the report of several VA examinations, and statements of the Veteran.

As discussed above, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument.  Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).




Relevant Laws and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology 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).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to prevail on the issue of service connection there must be competent evidence of a current disability; competent evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  Id; see also 38 C.F.R. § 3.310(b).

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Analysis

The Veteran contends that his right hand and thumb arthritis are secondary to his service-connected residuals of right fifth metacarpal fracture with arthritis and limitation of motion.  The Veteran incurred a fracture to the right fifth metacarpal in a car accident in June 1956 while on active duty.  The Veteran was granted service connection for a fracture to the right fifth metacarpal in March 1958.  In January 2008 he was granted service connection for right wrist arthritis as secondary to his service-connected residuals of right fifth metacarpal fracture.  The current issue on appeal deals only with service connection to the portions of the Veteran's right hand which are not currently service-connected; the Veteran's statements and medical records indicate that the disability primarily at issue is arthritis of the right thumb.

The Veteran has stated that he believes his arthritis of the right hand and thumb is not caused by aging, but is instead related to his in-service fifth metacarpal injury.  Statements from the Veteran's wife indicate that the Veteran has difficulty moving his thumb and has a great deal of pain in his hand and thumb, which makes it difficult for him to write, drive, hold a book, do repetitive chores, or dress himself.  She also stated that the pain in his thumb became so severe that he had to have surgery performed on it in 2010.

The Veteran's service treatment records confirm that in June 1956 he was in a car accident while on leave in Saginaw, Michigan, and sustained multiple lacerations and contusions, as well as fractures to the right ankle and right fifth metacarpal.  The Veteran was treated surgically with a Kirschner wire placed in the right fifth metacarpal area to fixate the fracture of the bone, and this was later surgically adjusted in January 1957.  A July 1956 X-ray report showed a suggestion of fracture at the proximal portion of the right fifth metacarpal with a 3 centimeter metal-like object overlaying the carpal bones.  A September 1956 record stated that X-rays showed the Veteran had a fracture on the lateral aspect at the base of the fifth right metacarpal with some displacement of the carpal-metacarpal joint.  A January 1957 clinical record shows that the Veteran had malunion of fracture at the base of the fifth right metacarpal, as well as residuals of traumatic injury to the right lower extremity.  The Veteran's Kirschner fixation wire was removed in February 1957.  A May 1957 clinical record showed a prominence at the base of the fifth metacarpal with posterior displacement of the metacarpal at the carpal metacarpal joints.  A September 1957 record also noted that the Veteran had limitation of motion on dorsiflexion and eversion of the right hand due to his metacarpal injury.  January 1958 X-rays showed frayed ends of the base of the fifth metacarpal and bony union subsequent to small fracture in the radial aspect of the base, with soft tissue calcification noted to override this area on the lateral projection.

Private medical records show that the Veteran has been treated for pain in his right hand since January 2002, when the Veteran was diagnosed with right thumb basilar joint arthritis and old crush injury.  In February 2007 X-rays of the Veteran's right hand showed previous fracture to the base of the fifth metacarpal with some residual deformity and secondary post traumatic arthritis between the base of the fifth metacarpal and hemate consisting of carpal metacarpal arthritis.  It also showed degenerative arthritis of the right thumb.  

A December 2008 examination showed worsening degenerative arthritis of the right thumb carpometacarpal joint, calcific tendonitis, possible pseudo gout right wrist degenerative arthritis, and degenerative changes involving the carpometacarpal joint of the fourth and fifth metacarpals.  The private records show regular treatment for right hand, thumb, and wrist arthritis pain since 2009.  In February 2009 the Veteran's treating physician, Dr. J. N., noted that the Veteran's "degenerative arthritis that is starting over the ulnar aspect of his hand, in particular the carpometacarpal joints are most likely the direct result of a service connected disability namely fractures of the fourth and fifth metacarpals."  

In November 2010 he underwent a right thumb carpometacarpal arthroplasty for severe basal joint arthritis.  Follow-up examinations show that he had decreased pain in his right thumb, but continued to experience hand pain, stiffness, and weakness.  In January 2011 the Veteran was also diagnosed with trigger finger of the right index finger.

The Veteran's private treating physician, Dr. J. N., has provided several letters discussing the Veteran's hand condition.  In November 2005 the physician wrote that the Veteran had degenerative arthritis of the carpal metacarpal joint as secondary to his prior injury.  Another November 2005 letter specified that the injury caused "secondary arthritis to form in and around the fifth carpal metacarpal joint."  In a May 2006 letter, Dr. J. N. wrote that a substantial portion of the Veteran's arthritis in his right hand was secondary to his service related injury, but he also clarified that the Veteran also had "some degenerative arthritis of the right thumb but this is not the major cause of his current limitations."  In a February 2007 letter, Dr. N. indicated that the arthritis over the 5th finger was due to service trauma, but that the arthritis of the right wrist and thumb were due to degenerative arthritis.  None of the letters or treatment records of Dr. J. N. make any specific mention or suggestion that the Veteran's arthritis of the thumb was caused by his in service accident.

The Veteran's VA treatment records show no treatment for any conditions related to arthritis of the right hand.

The Veteran received a VA examination in February 2006 which found that the Veteran had a well healed injury to the fifth metacarpal with tenderness and minimal deformity and post traumatic arthritis at the base.  The examiner also found tenderness over the thumb and arthritis of the carpometacarpal base of the thumb that were not related to the service-connected fifth metacarpal fracture.  X-rays showed a healed fracture at the base of the fifth metacarpal bone associated with posttraumatic arthritis and osteoarthritis of the first carpometacarpal joint.

In October 2006 the Veteran received an additional VA examination.  X-rays showed osteoarthritis of the multangular metacarpal joint of the thumb and deformity with arthritis and cyst formation at the base of the fifth carpometacarpal joint.  The examiner opined that the Veteran had Heberden's nodes in the tips of all his fingers consistent with osteoarthritis and arthritis at the base of the thumb and that there was "no direct connection between the arthritis at the base of the thumb at the arthritis as the base of the little finger."  He explained that "with Heberden's nodes, he has all of the stigmata of osteoarthritis" in his fingers and at the base of his thumb.

The Veteran was afforded an additional VA examination in April 2007.  The examiner reviewed the Veteran's claims file and medical records and discussed his history.  The Veteran reported having pain in the base of his thumb and difficulty using his right hand, along with numbness and tingling of the right hand.  The examiner performed range of motion testing which found normal range of motion and diagnosed the Veteran with osteoarthritis of the right wrist.  The examiner ultimately opined that the Veteran's arthritis of the right hand and thumb were "less likely as not due to the residuals of fracture to the 5th metacarpal of the right hand and less likely as not aggravated by the service connected disability."

The Veteran also had a VA examination in April 2009.  The examiner reviewed the Veteran's medical records and discussed the history of the injury with him.  The examiner found Heberden's nodules on the Veteran's fingers and tenderness on the radial side of the right wrist.  Range of motion testing found some limitation of motion and pain upon movement in the right extremity.  The examiner diagnosed the Veteran with osteoarthritis of the base of the fourth and fifth metacarpals from a healed fracture of the fifth metacarpal bone and tendinitis of the right wrist with chondrocalcinosis and vascular calcification, and osteoarthritis of the first carpometacarpal joint.  The examiner ultimately opined that the Veteran's arthritis of the right hand and thumb were less likely as not due to or aggravated by the residuals of right fifth metacarpal fracture.  The examiner explained that radiographic evidence showed the typical stigmata of osteoarthritis of the hand and wrist, including Heberden's nodes at the distal interphalangeal joints of the fingers and multangular metacarpal arthritis at the base of the thumb, and this would be likely related to age progression and not to the injury sustained at the base of the fifth metacarpal.

The Veteran was also examined in October 2012 for the purpose of evaluating the level of severity of his service-connected right wrist and residuals of right fifth metacarpal fracture, but no opinion regarding the etiology of his hand or thumb arthritis was requested or provided, and the examination is therefore not relevant to the current issue on appeal.

In light of the evidence of record discussed above, the Veteran has failed to provide any competent evidence of a nexus between his right hand and thumb arthritis and his residuals of right fifth metacarpal fracture with arthritis and limitation of motion, and there is currently no basis that would allow for a grant of service connection for right hand or thumb arthritis.

All four relevant VA examination reports provided opinions that the Veteran's hand and thumb arthritis was less likely than not related to his in-service injury or to the residuals of the fracture to the right fifth metacarpal.  The Board also points out that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter.  See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991).  In this case, all four examiners have come to the same conclusion regarding the etiology of the Veteran's arthritis of the hand and thumb.  The most comprehensive, and therefore most probative, of these examinations are those of April 2007 and April 2009.  These VA examiners performed adequate and competent examinations, which included a review and discussion of the Veteran's medical history and thorough physical examination.  While the Veteran and his wife wrote in June 2010 that they felt the April 2009 examination report unfairly underreported the amount of pain the Veteran was in while range of motion testing was being performed, this does not affect the validity or probative value of the examiner's opinion regarding the etiology.  Furthermore, the April 2009 examiner did note that the Veteran had pain upon movement and limitation of motion due to pain.  There is no evidence that the April 2007 and April 2009 examiners failed to consider any evidence that was available to them or that they failed to provide adequately thorough discussion of the Veteran's condition.  The Board therefore finds that the April 2007 and April 2009 examination reports constitute adequate competent and probative evidence on the medical nexus questions, based as they were on review of the Veteran's documented medical history, assertions, and examination and supported by medical evidence of record.  

The findings of the VA examiners are supported by the findings of the Veteran's own private physician.  Dr. J. N. has provided letters stating that the arthritis in and around the Veteran's fifth metacarpal are secondary to his in service injury, but he has consistently described the Veteran's remaining arthritis as being degenerative osteoarthritis of a separate etiology.  At no time has Dr. J. N. or any other private physician indicated that the Veteran's arthritis of the thumb was connected to his fifth metacarpal injury, and he has in fact very specifically pointed out that it is the arthritis at the base of the fifth metacarpal, which has already been granted service connection, along with right wrist arthritis, that can be linked to his in service injury.

The only statements in favor of a finding of a relationship to service are those of the Veteran himself.  The Board acknowledges the Veteran's statements indicating that he has pain and stiffness throughout his hand and, especially, his thumb, and he is considered competent to report on matters observed or within his personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render an opinion on the etiology or aggravating factors of his hand and thumb pain, as that requires medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  Thus, the Veteran's opinion that his hand and thumb arthritis is related to his in-service fifth metacarpal injury and subsequent arthritis is not a competent medical opinion.  As such, lay assertions in this regard have no probative value, and the medical findings and opinions of the VA examiners warrant far greater probative weight.

With regard to service connection for right hand and thumb arthritis on a direct basis, the Board reiterates that the Veteran's service treatment records are negative for any evidence of arthritis or other injuries of the right hand or thumb other than the June 1956 injury of the right fifth metacarpal and the subsequent treatment relating to the right fifth metacarpal.  In addition, there is no evidence that the Veteran's right hand arthritis manifested within 1 year of discharge from service, nor has he asserted that it did.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  There is therefore no evidence which would allow for a grant of service connection on a direct or presumptive basis.

In short, as there is no competent and credible evidence that the Veteran's right hand and thumb arthritis was incurred in service or within a year of separation from service, nor is there any competent and credible evidence indicating that the Veteran's right hand and thumb arthritis was caused or aggravated by a service-connected condition, the preponderance of the evidence is against the claim for service connection.

In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant claim.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

Entitlement to service connection for right hand and thumb arthritis, to include as secondary to residuals of right fifth metacarpal fracture with arthritis and limitation of motion, is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs