Citation Nr: 1320836 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 05-28 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right wrist disability. 2. Entitlement to an effective date earlier than March 28, 2008, for a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to March 1970. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in December 2003, August 2008, and November 2008 by Department of Veterans Affairs (VA) Regional Offices (ROs). The Veteran testified at a February 2010 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In the December 2003 rating decision, the Seattle, Washington, RO granted service connection for a dysthymic disorder, rated as 50 percent disabling, effective from March 18, 2003. In January 2008, the Board denied the Veteran's appeal for an initial rating in excess of 50 percent for a dysthymic disorder. In December 2008, and pursuant to a joint motion for remand by the Veteran and VA, the Court of Appeals for Veterans Claims remanded the claim to the Board, for consideration and adjudication of whether an informal claim for a TDIU had been received. In the August 2008 rating decision, the Portland, Oregon, RO denied service connection for right hand (to include wrist) disability. In the November 2008 rating decision, the Portland, Oregon, RO assigned a TDIU effective from March 28, 2008. The Veteran appeals for an earlier effective date. In an April 2012 rating decision, the RO/AMC granted a higher initial rating of 100 percent for dysthymia for the period from February 3, 2012, forward. In August 2012, the Board determined that the criteria for service connection for a right hand disability had been approximated, and remanded for further development the appeals for (1) service connection for a right wrist disability, (2) an initial rating in excess of 50 percent for a psychiatric disorder, for the period from March 18, 2003, to February 2, 2012, and (3) an effective date earlier than March 28, 2008, for the award of a TDIU. The Board's grant of service connection for a right hand disability was implemented by the RO in an August 2012 rating decision, and represents a complete grant of the benefits sought with respect to the right hand claim. The right wrist claim is still in appellate status. In a January 2013 rating decision, the AMC increased the rating for the service connected psychiatric disability, currently characterized as MDD, from 50 to 100 percent, effective March 18, 2003 (the date of the Veteran's claim); considered the Veteran competent; established basic eligibility to Dependents' Educational Assistance from March 18, 2003; and discontinued entitlement to TDIU effective March 18, 2003, which effectively denied the earlier effective date claim for a TDIU. FINDINGS OF FACT 1. The probative medical evidence does not substantiate a finding that the right wrist disability was incurred in or aggravated by service, or is otherwise proximately due to, or the result of, a service-connected disability. 2. The grant of a 100 percent schedular rating for the Veteran's psychiatric disorder from the date of the claim renders moot the appeal for an earlier effective date for the TDIU. CONCLUSIONS OF LAW 1. The criteria are not met to establish service connection for a right wrist disability, to include as secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The claim of entitlement to an earlier effective date for the award of a TDIU is dismissed. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all elements of a claim, including the disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, a timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has found that VCAA notice errors are not presumptively prejudicial. Rather, prejudice is determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The VCAA duty to notify was initially satisfied by way of pre-adjudicatory letter sent to the Veteran in May 2008 which fully addressed all notice elements. Additional letters were sent to the Veteran in August 2010 and August 2012. Thereafter, the claim was readjudicated by way of a January 2013 SSOC. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran 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 Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records (STRs), VA outpatient treatment records, and private medical records. The Veteran was afforded VA compensation examinations and personal hearing before the undersigned VLJ. The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained. No further notice or assistance to him is required. 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). He has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VA's duties to notify and assist the Veteran have been fulfilled. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Board hearing, the undersigned Veterans Law Judge identified the issue of entitlement to service connection for a right hand (including wrist) disability as well as the inferred TDIU claim. Information was obtained to clarify the Veteran's arguments. The VLJ kept the record opened for 60 days for records involving the right hand in pertinent part, dating back as close as possible to service discharge. The hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim, and to suggest the submission of evidence when such evidence is missing or has been overlooked, has been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. The Board has not identified any hearing deficiency. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit. In this case, given the extensive development of the Veteran's claim discussed above, the Board finds no deficiency in the Board hearing or in development of the claim. See id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third service connection requirements to link a current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Service connection will also be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). As to a current disability, treatment notes dated in December 2001 show a diagnosis of a right wrist sprain, after the Veteran fell at home. X-rays of the right wrist taken in May 2011 show evidence of mild arthritic changes. Also, the most VA examination report dated in October 2012 confirms a diagnosis of degenerative arthritis in the right wrist, as well as carpal tunnel syndrome in that wrist. The Veteran entered active service with a noted history of a fracture of the right 2nd metacarpal head; although the November 1967 service entrance examination report reflects equivocation and revision on the matter of whether a resulting disorder was currently disabling, the final version of the entrance examination report indicates by a checked box that clinical evaluation of the upper extremities was normal; that the upper extremities were profiled as a "1," representing a high level of fitness; and that the Veteran's condition of the right hand was not considered disabling. An additional notation indicates that the Veteran had injured his right index finger one year previously, and had loss of flexion of the right index finger, and was unable to clench his fist, but could pick up an object without difficulty. Crossed-out notations on the service entrance examination report reflect that the Veteran was initially found not fit for service as a result of disability of the right hand, and that his upper extremities were profiled as a "3," indicating defects or impairments that require significant restriction of use. At his service entrance examination, the Veteran's right hand was ultimately found to be clinically normal and not to be disabling at entrance into service. However, in its August 15, 2012 decision, the Board found by clear and unmistakable evidence that the Veteran did have a disorder of the right hand at entrance into service and the right hand was presumed sound at service entrance, but because there was insufficient evidence to show that the Veteran's disability of the right hand was not chronically worsened during active service, the right hand was ultimately presumed sound upon service entrance. At any rate, there is entirely no evidence of a right wrist disability upon service entrance. The Veteran's service treatment records show at least four documented injuries to the right index finger, right thumb, and to the right hand in general (see 1968 and 1973 STRs), but are devoid of any right wrist treatment, complaints, or diagnoses during service. The first complaints of right wrist pain are not shown until 1998, approximately 28 years after service discharge. Although not dispositive by itself, the absence of any indication of a relevant medical complaint until many years after service is relevant in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no competent evidence of a nexus between the current right wrist disability and service, nor is there evidence showing that the right wrist disability was proximately due to, or caused by a service-connected disability. The January 2012 VA examiner examined the Veteran, reviewed the claims file, and determined that the right wrist disability is not considered part of his metacarpal fractures or in any way connected to his military service. The examiner also noted that the Veteran did not develop arthritis in the right wrist within one year of service discharge. The examiner's May 2012 addendum did not provide an opinion as to whether the Veteran's right wrist disability is secondary to any service-connected disability. For this reason, an additional VA examination was afforded the Veteran in October 2012. In response to the Board's request for a medical opinion, the October 2012 VA examiner determined that the Veteran's right wrist disability is less likely as not caused or aggravated by any service-connected disabilities. Rather, the examiner assessed the Veteran's mild arthritis in the right wrist is secondary to the wear and tear process of his work history and the normal aging process. The January and October 2012 VA opinions are highly probative evidence, as they relied on sufficient facts and data, provided a rationale for the opinion, and contain sound reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiners had the opportunity to review the claims file and examine the Veteran. The Veteran has not offered a medical opinion linking his current right wrist disorder directly to service, or to a service-connected disability. The Veteran is competent to report observable symptoms, such as pain in the wrist. However, the question of whether his current right wrist disability is related to service or a service connected disability is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Because the record is negative for any evidence to suggest that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning a wrist disability, he is not competent to report the etiology of his right wrist disability. Accordingly, the competent medical evidence outweighs the Veteran's lay reports as to etiology. Service connection for arthritis of the right wrist based on chronicity or continuity of symptomatology is for consideration, as it is a chronic disease listed in 38 C.F.R. § 3.309(a). Although the Veteran has not specifically asserted a continuity of symptomatology of arthritis since service, he alleged that his right hand problems, which presumably include his right wrist, began in service. However, as noted, the first complaints of right wrist pain are not shown until 1998 and x-ray evidence of arthritis of the right wrist is not shown until 2011. The medical records are more probative than the Veteran's lay assertions, and weigh against a finding of chronicity or continuity of symptomatology of arthritis since service. Thus, service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) is not warranted. In conclusion, the preponderance of the evidence is against a finding that the Veteran's right wrist disability is related to service or a service-connected disability. The appeal is therefore denied. Earlier Effective Date Claim The TDIU claim was inferred in connection with the claim for a higher initial rating for the Veteran's psychiatric disorder, and that claim, which at the time was characterized as a claim to reopen, was received on March 18, 2003. The 100 percent schedular rating for his psychiatric disorder is now in effect from March 18, 2003. Thus, there is no period of time during this appeal where the Veteran's schedular rating has been less than total. Id. Accordingly, because a total schedular rating has been in effect for one of the Veteran's service-connected disabilities throughout the entire appeal period in this case, the Board finds that the issue of entitlement to an earlier effective date for a TDIU is moot and is dismissed. Nonetheless, the United States Court of Appeals for Veterans Claims (Court) has recently noted that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement special monthly compensation (SMC) under 38 U.S.C.A § 1114. See Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim" and remanding, pursuant to VA's duty to maximize benefits, for VA to determine whether the Veteran's posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC ). SMC is payable at the (s) rate when a Veteran has a single service-connected disability rated as 100 percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s) (West 2002). These benefits are not available when the 100 percent disability rating is based on multiple disabilities, none of which is rated 100 percent disabling, or which arise from a single etiology or accident. Buie v. Shinseki, 24 Vet. App. 242, 249-50 (2010); Bradley v. Peake, 22 Vet. App. 280, 290-91 (2008). In this case, in addition to being awarded the 100 percent schedular rating for his psychiatric disorder, the Veteran is service connected for a low back muscular strain (40 percent); left hand condition (10 percent); right hand disability (10 percent); left index finger disability (noncompensable); for a combined 100 percent rating from March 18, 2003; and 100 percent rating from January 30, 2008 based on a bilateral factor of 1.9% for Diagnostic Codes 5003 and 5229. Since the Veteran has a single service-connected disability rated as 100 percent disabling, SMC is only payable if he has a service-connected disability or disabilities independently ratable at 60 percent, and the Veteran in this case does not. In the alternative, when the Veteran has a single service-connected disability rated as 100 percent disabling, SMC is payable if, by reason of such service-connected disability, he is permanently housebound. There is no indication in the record that the Veteran is housebound due to his service-connected disabilities. ORDER Entitlement to service connection for right wrist disability is denied. The claim of entitlement to an earlier effective date for the award of a TDIU is dismissed. ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs