Citation Nr: 1323443 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 04-41 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection a bilateral hand disorder, to include scarring of the hands, status-post abrasions. 2. Entitlement to ratings in excess of 10 percent prior to February 18, 2005, and in excess of 20 percent since February 19, 2005, for lumbar strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty for training from June 23, 1986 to August 14, 1986, and active duty from November 1988 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is now under the jurisdiction of the Baltimore, Maryland RO. In August 2010, the Board remanded the claims for development. The claims returned to the Board in May 2012, at which time the Board reopened a previously denied claim for service connection for a bilateral hand disorder, and remanded the hand claim, as well as the increased rating claim for the spine, for further development. The Veteran requested a Central Office hearing in conjunction with his appeal, but withdrew the request in April 2010. 38 C.F.R. § 20.704(e) (2012). As addressed in the prior remand, the issue of entitlement to service connection for a left ankle disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to ratings in excess of 10 percent prior to February 18, 2005, and in excess of 20 percent since February 19, 2005, for lumbar strain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have a diagnosis of a hand disorder of either hand, to include scarring of the hands. CONCLUSION OF LAW A hand disorder, characterized by pain and/or scarring, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, the Veteran was sent a letter in July 2003, shortly before receipt of his claim, addressing all VCAA notice elements for service connection claims; subsequently, during the pendency of his claim, he was sent additional notice regarding the elements of service connection claims in February 2006. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). More recently, in October 2010 and December 2011, VA sent the Veteran notice complying with Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), addressing both the elements of service connection, as well as the necessary showing to reopen a previously denied claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (addressing the cure of untimely VCAA notice). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment 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. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. VA has obtained opinions regarding the Veteran's claimed hand disorder from an orthopedist, a rheumatologist, and a surgeon, and there is adequate medical evidence of record to adjudicate the claim. The Board takes note that in March 2013, the Veteran requested one year to "gather additional evidence through new medical examinations by different medical officials not related with the Department of Veterans Affairs." The Board was uncertain as to exactly what the Veteran was requesting, and sent an April 2013 letter requesting clarification and informing the Veteran that if he could provide a specific reason for needing more time, the Board could grant him an additional 90 days prior to issuing a decision. The Veteran responded to the Board's request in May 2013; in his response, the Veteran failed to provide any additional reasoning for his request for a one-year extension. He did not indicate that he was undergoing treatment for his hands that had not yet concluded, but again reiterated that he wanted to obtain a private medical examination. The Veteran's reasons for requesting additional time for his appeal are not satisfactory, and the Board denies his request (while also noting that over 90 days have passed since his initial request for an extension). Despite making his request in March 2013, more than three months ago, there is no suggestion that he has made any efforts to schedule a private hand examination. He has also failed to provide any reasons as to why obtaining a private medical examination would take a year's time. Moreover, he has not provided any additional evidence during this time. More importantly, the Veteran's claim has been pending since August 2003; he has had nearly 10 years to obtain such an opinion, during which time the case has twice previously been before the Board, and there is no suggestion in the record that he has made such efforts. The Board will not further delay adjudication of the Veteran's appeal. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (holding that lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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). The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In an August 2003 statement, the Veteran asserted that he fell on the flight deck of the U.S.S. Juneau in October 1992, landing on his knees, elbow, and the palms of his hands. The fall resulted in open wounds on his hands requiring medical care. Thereafter, the Veteran began to experience hand pain in July 1997. Service treatment records from October 1992 confirm that the Veteran suffered abrasions to his hands in October 1992 after a fall when running on the flight deck. Both hands exhibited limited bleeding, and no lacerations, edema, or erythema. There was minimal debris in the abrasions that necessitated removal. He was seen in the medical bay four days later, at which time the examining provider noted that the wounds were "progressively" healing, but doing so slowly. The Veteran indicated that abrasion on his left hand "still hurt[] pretty bad." He was instructed to return for follow-up in 48 hours, but there is no evidence to suggest that he underwent further treatment for his hands while on active duty. The Veteran underwent a VA general medical examination in August 1994 related to his initial claim for service connection for a hand disability. The examiner noted that there were no scars on the hands In May 2011, a VA rheumatologist examined the Veteran's hands. After a physical examination, as well as electromyography (EMG) and nerve conduction velocity tests, the examiner determined that the Veteran's complaints appeared to reflect a mechanical etiology of pain, which could be slightly relieved by rest. The examiner could not determine a clear etiology of his pain, but indicated that "we suspect that it is related to injury from his time in the military (with his fall) and his remote history of training using boxing techniques in the past." There was no evidence of inflammatory or deforming arthritis, or osteoarthritis. The examiner was "unable to identify his specific condition causing his current pain," and suggested he obtain the opinion of a hand surgeon. The Veteran underwent a surgical consult in August 2011. The examiner noted complaints of bilateral hand pain since 1991, and that the Veteran reported falling onto the flight deck of an aircraft carrier and landing in a chemical on the deck. The surgeon reported a normal exam bilaterally. X-rays failed to show any reduced joint spacing or misalignment. Thereafter, the surgeon referred the Veteran to a hand clinic. Also in August 2011, the Veteran was seen by a hand specialist. The specialist reported an "essentially normal" hand examination bilaterally, with no evidence of neurologic etiology for the pain, and no evidence of bone or joint problems. X-rays and an EMG did not suggest a cause of the pain or a diagnosis. The specialist opined that the Veteran had a "non-organic cause of bilateral hand pain." VA provided the Veteran with a June 2012 examination for his hands. After noting the Veteran's complaints of pain and stiffness in his hands, the examiner performed a full physical examination. There were no scars on the hands or palms. With regard to range of motion testing, the Veteran did not fully cooperate with the examination, especially with his right hand, according to the report. The examiner determined that there was no objective evidence of pain during the examination, and that all results were normal, except for the right third and fourth fingers, which resulted in abnormal results due to the Veteran's lack of cooperation. The examiner, citing in addition to her own examination of the Veteran, the reports of the rheumatologist, hand surgeon, and hand specialist, determined that there was no diagnosis of a bilateral hand disorder warranted. Based on the evidence of record, the Board finds that the Veteran does not meet the first criteria for service connection - a current disability. 38 C.F.R. § 3.303. The Board acknowledges the Veteran's reports of bilateral hand pain. The Veteran is competent to report his symptoms, and the Board finds his reports of pain to be credible. Barr, 21 Vet. App. at 308. Despite this finding, pain alone does not constitute a disability for service connection purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). As neither a VA examination, nor consultations with a rheumatologist, a hand surgeon, and a hand specialist have resulted in a diagnosis of a hand disorder, the Board must find that the Veteran does not have a current hand disability, to include scarring. Therefore, service connection is not warranted. Holton, 557 F.3d at 1366. ORDER Entitlement to service connection for a bilateral hand disorder, to include scarring of the hands, status-post abrasions, is denied. REMAND In the May 2012 remand, the Board specifically instructed the RO/AMC consider the Veteran's claim under 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003), which, prior to the amendment of the rating criteria for the spine, addressed the appropriate rating for a lumbosacral strain. If the Veteran's claim did not result in a full grant of benefits, the RO/AMC was to issue a Supplemental Statement of the Case (SSOC) that included the criteria of Diagnostic Code 5295. Despite that remand order, it is apparent that the AMC did not consider Diagnostic Code 5295, or inform the Veteran of those criteria. The December 2012 SSOC listed Diagnostic Code 5292, which provides rating criteria for limitation of motion of the lumbar spine, but did not include Diagnostic Code 5295. In its discussion of the claim, the AMC simply indicated that "[t]he old and new spine criteria was considered." The Board finds that the AMC failed to comply with the May 2012 remand directives. Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Diagnostic Code 5295 (2003) provides the following: 5295 Lumbosacral Strain Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion...........40 percent With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position......................20 percent With characteristic pain on motion....................................10 percent With slight subjective symptoms only..................................0 percent Although the Board has provided these criteria here in this remand, the RO/AMC still must comply with the remand order and consider these criteria in its adjudication of the claim, and provide the Veteran with an SSOC that completely addresses the laws and regulations governing his appeal. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's claim for an increased rating for his spine under all applicable criteria, to specifically include 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). If any benefit is not granted, the appellant must be furnished with a supplemental statement of the case that includes 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003) (if applicable), with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs