Citation Nr: 1322812 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 08-09 184 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to service connection for residuals of a left hand injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from December 1966 to November 1974. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2005 decision by the RO which denied, in part, the benefits sought on appeal. The Board remanded the appeal for additional development in December 2009, March and April 2011, and July 2012. A hearing before the undersigned was held at the RO in June 2011. FINDING OF FACT The Veteran is not shown to have residuals of a left hand injury that had its onset in service or is otherwise related to service or any incident therein. CONCLUSION OF LAW The Veteran does not have residuals of a left hand injury due to disease or injury which was incurred in service. 38 U.S.C.A. §§ 1101,1110, 1112, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in May and June 2005 and December 2009. Although the most recent letter was not sent prior to initial adjudication of his claim, this was not prejudicial to the Veteran, as the claim was readjudicated and supplemental statements of the case (SSOC) were promulgated, most recently in January 2013. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's Virtual VA electronic medical records. The Veteran was examined by VA during the pendency of this appeal and testified at a hearing before the undersigned at the RO in June 2011. The Board finds that the VA examinations, in particularly the August 2012 examination were comprehensive in scope, included a discussion and analysis of the Veteran's medical history and current findings, and are adequate to render a fair and impartial determination on the merits of the issue on appeal. Additionally, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Additionally, the claim was remanded for additional development four times during the pendency of this appeal, including most recently in July 2012. The remand directives included providing the Veteran with appropriate VCAA notice, obtaining all of VA and available private treatment records, scheduling him for a personal hearing, and for a VA examination to determine the nature and etiology of any identified left hand disability. The Veteran was provided with adequate notice concerning VA's duty to assist under VCAA by letter dated in December 2009, testified before the undersigned at a Travel Board hearing in June 2011, and was examined by VA during the pendency of this appeal. A letter from the only private physician identified by the Veteran was to the effect that there no treatment records were available. All of the Veteran's VA treatment records have been obtained and associated with the claims file or with Virtual VA, including treatment records from January 2008 to February 2009, in compliance with the remand directives. In light of the foregoing, the AMC has substantially complied with the multiple remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Concerning the June 2011 Travel Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that may have been overlooked. In the present case, the undersigned VLJ asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claim. Additionally, the VLJ requested necessary evidentiary development in the case. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that the duty to notify and the duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection - In General 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 (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed 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); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Where a Veteran served 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 of 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Factual Background The Veteran contends that he suffered an injury to his left hand sometime in the Fall of 1969, when his safety line broke while welding antenna brackets onto a ships bulkhead. He testified that he had to grab hold of the bracket he had just welded with his left hand to keep from falling because he was holding the welding electrode in his right hand. He said that his hand was placed in ice water for about 45 minutes and the wound cleaned and bandaged, and that he was kept in sick bay for a couple of days and then was released to duty with just a bandage on his hand. The Veteran testified that his left hand healed after a couple of weeks but that he has had residual pain in the hand ever since. Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the Veteran's claims file, including his testimony at the hearing in June 2011, and the numerous VA medical reports of record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. 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. 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). Regarding the Veteran's contentions, while he is competent to describe the symptoms he has experienced, the etiology of any current left hand disability may not be diagnosed via lay observation alone, and he is not shown to have the expertise to provide a complex medical opinion concerning the nature or etiology of the claimed disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). Historically, the STRs are completely silent for any complaints, treatment, abnormalities or diagnosis for a burn injury of the left hand during the Veteran nearly seven years of active service. The STRs showed that the Veteran was treated for a bee sting and had some swelling in his left hand, shoulder and right side of the lips in July 1967, but did not show treatment for any type of left hand injury. The evidence of record also includes private medical records showing treatment for various unrelated maladies, including right knee and left foot injuries and gastrointestinal problems during service, but do not show any complaints or treatment for any left hand problems. Similarly, the Veteran made no mention of any left hand problems on his original claim for VA compensation benefits received in December 1974, or when examined by VA in February 1975 or February 1976. Other than treatment for occasional psoriasis, initially on his left hand in 1986, and his right hand in 1989, the evidentiary record does not show any complaints or treatment for any left hand problems until 2004. When examined by VA for an unrelated malady in October 2004, the Veteran reported that he took over-the-counter medication for arthritis in his left hand. When seen by VA for an unrelated malady in January 2005, the Veteran reported decreased strength in his left hand and mentioned that he injured it while painting in service. He said that he had no problems with his hand since then, and was going to see his private doctor about it the following month. The evidentiary record includes buddy statements from two sailors who recalled that the Veteran injured his left hand in service. In a letter dated in August 2006, one sailor added a handwritten statement to the Veteran's typed letter describing the welding incident, and stated that he "remembered the [incident] as written" by the Veteran. The second letter, received in January 2007, was to the effect that he served with the Veteran aboard the USS Shangri-la between the Summer of 1969 and the Spring of 1970, and remembered the injury to the Veteran's hand while welding antenna brackets. A VA x-ray study in October 2008 showed very mild degenerative changes in the distal interphalangeal joints of the second and fifth fingers, and no pertinent abnormalities in the third finger. When seen by VA in November 2008, the Veteran reported middle and ring finger triggering for three to four years. The Veteran denied any recent trauma and said that he had a corticosteroid injection about three years earlier. The Veteran was referred to the orthopedic clinic for consideration of trigger finger release surgery. VA records showed that the Veteran underwent left middle trigger finger release without complication in January 2009. The Veteran was examined by VA three times during the pendency of this appeal to determine the nature and etiology of his left hand problem. When examined by VA in February 2010, there were no visible scars on the left hand, other than a 1.5 inch well-healed, transverse surgical scar on the middle finger from the trigger release surgery in January 2009. There was no gross external anatomical deformity or derangements of the left hand, i.e., ganglion cysts, dome masses, achondroplasia, hypertrophy of digits, mallet fingers or thumb, swan-neck deformity, Bouchard's nodes, Dupuytren's contracture. There was no swelling, redness, inflammation, muscle wasting or obvious loss of movement. An October 2008 VA x-ray study of the left hand revealed some mild narrowing of the DIP joints, particularly over the second and fifth fingers, normal bony mineralization and alignment, and no evidence inflammatory arthritis or periarticular soft tissue calcifications. The assessment included fully functional status post left hand trigger finger repair, without sequella and no physical signs or symptoms of palmar burn. When examined by VA in October 2011, the examiner indicated that the claims file was reviewed and included a description of the Veteran's complaints, medical history and clinical findings. The clinical and diagnostic findings were essentially the same as on the February 2010 VA examination and showed no evidence of any residual burn scars, painful motion, tenderness to palpation or decreased in grip strength, and no actual or functional impairment of the left hand. The diagnosis was trigger finger left middle finger. The examiner commented that there was no evidence of an injury or any left hand problems in the Veteran's STRs, and that the Veteran reported the onset of his trigger finger problems to around 2005, with surgical repair in 2009. He also noted that the Veteran worked in electronics and bio-med with his hands for over 30 years, and that his primary problem was psoriasis of the hands. The examiner opined that, based on the current evidence of record, it was less likely than not that the Veteran's current left hand problems and trigger finger was related to service. At the direction of the July 2012 Board remand, the Veteran was examined by VA in August 2012, to determine the nature and etiology of any current left hand problems. The examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical history and the findings on examination. Other than some decreased grip strength in the left hand, the clinical and diagnostic findings on examination were not significantly different from the prior two VA examinations discussed above. The examiner opined that it was less likely than not that the Veteran's current left hand disability was incurred in or caused by the claimed in-service injury. The examiner commented that he found no evidence of the reported burn injury in the Veteran's STRs, and that there was no mention of the claimed injury or any pertinent abnormalities of the left hand on a service examination in November 1970, on a re-enlistment examination in November 1972, or on the Veteran's retirement examination in November 1974. The Veteran's upper extremities and hand were normal on all three examinations. The examiner indicated that there were no symptoms or residual problems from the alleged burn injury to the left hand that would cause residual damage to the skin or to the deep structures under the skin. Thus, it was less likely than not that the Veteran would have damage to the deep structures and tendons of the left hand without deeply scarring from burns, contractures and distortions of anatomy. The examiner also referred to a medical treatise on the subject of trigger finger etiology, and noted that trigger finger may be idiopathic or associated with rheumatoid arthritis or diabetes mellitus. A higher prevalence has also been observed in patients with carpal tunnel syndrome and de Qiervail stenosing tenosynovitis, but that there was no discussion of trigger finger due to superficial injury of the hands. There is also some evidence of trigger digit risk factor for combination of risk factors (force and repetitive, force and posture) vibration, forceful work, awkward postures, and increased incidence with prior partial flexor tendon laceration injury and systemic rheumatological conditions. The examiner noted that the Veteran had a long history of using both hands doing equipment repair after service and that he did not develop symptoms or a diagnosis for trigger finger until nearly 30 years after service. Based on the lack of any objective evidence of significant residual problems with the left hand in service or evidence of trigger finger until many years after service, the examiner commented that it would be speculative to relate any current left hand disability to the reported burn injury in service. In this case, the Board finds the VA medical opinions, particularly the August 2012 opinion, persuasive as it was based on a thorough review of the record and included a detailed discussion of all relevant facts. The examiner offered rational and plausible explanation for concluding that the Veteran's current left hand disability not related service or any incident therein. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Furthermore, the Veteran has not presented any competent medical evidence to rebut this opinion. Thus, the most probative evidence of record consists of the August 2012 medical opinion. The Board notes that the Veteran is competent to assert that he sustained an injury in service and the Board has found him credible that an injury to the left hand happened in service. As alluded to above, the case turns on whether there is a medical nexus between the Veteran's injury in service and his current left hand disabilities. The Board finds that the Veteran is not competent to provide an opinion as to whether his current left hand disabilities are related to the service injury. This involves a medical question and requires medical expertise, training and knowledge in order to provide such an opinion. The medical opinions of record are all against a nexus between his current left hand disabilities and service. The opinions took into account the Veteran's history concerning the service injury, the medical evidence of record, as well as sound medical principles in determining that there was no connection between the service injury and his current left hand disabilities. As previously stated, this is highly probative and there is no competent medical evidence to the contrary which links the Veteran's current left hand disabilities to service. In the absence of competent and probative medical evidence showing that the Veteran's current left hand disabilities are related to service or that he developed left hand arthritis within one year of service discharge, the Board finds that the preponderance of the evidence is against the claim of service connection. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting service connection for a left hand disability. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. ORDER Service connection for residuals of a left hand injury is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs