Citation Nr: 1323538 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-41 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a bilateral hand disorder, to include arthritis and carpal tunnel syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran, JG, and SM. ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active duty from November 1975 to November 1978, from January 1991 to March 1991, from June 2003 to May 2004, and from November 2005 to February 2006. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In June 2011 the Veteran testified during a Board hearing before the undersigned at the RO. A transcript of that hearing is of record. FINDING OF FACT The most competent evidence of record indicates that the Veteran's degenerative joint disease of multiple fingers of both hands, and bilateral carpal tunnel syndrome, are not etiologically related to active duty service. CONCLUSION OF LAW Service connection for degenerative joint disease of multiple fingers of both hands and bilateral carpal tunnel syndrome is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Under the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Duty to Notify Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran was notified via a letter dated in April 2009 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. VCAA notice was completed prior to the initial AOJ adjudication of the claim. Pelegrini. Duty to Assist Service treatment records are associated with the claims file, as are identified VA and private medical records. In July 2010 the Veteran underwent a VA examination that addresses the medical matters presented by this appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is more than adequate. The July 2010 VA examiner elicited information concerning the Veteran's military service and performed a contemporaneous physical examination. The opinion considered the pertinent evidence of record and provided a rationale for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). During the June 2011 Board hearing, to assist the Veteran, the undersigned asked questions to help direct the Veteran's testimony concerning the onset of his claimed disabilities. The undersigned also informed the Veteran (page 7) that the October 2009 private physician's letter of record had essentially been considered too indefinite and of little probative value by VA. As such, the undersigned informed the Veteran (page 9) that having a physician review and comment upon why the July 2010 VA examiner's opinion might be wrong would be beneficial to his claim. The Veteran was also informed that, per his request, the record would be held open for 30 days in an effort to give the Veteran additional time to submit evidence in support of the appeal. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Laws and regulations Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection rather than presumptive service connection, there generally must be (1) medical evidence of a current chronic disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or permanent aggravation of an injury or disease, and (3) medical evidence of a nexus between the current chronic disability and the in-service injury or disease. Hickson v. West, 12 Vet. App. 247 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required 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." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain specified chronic diseases such as arthritis and organic diseases of the nervous system such as carpel tunnel syndrome may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Veteran asserts that he has bilateral hand disability as a result of an injury he suffered while serving on active duty in connection with Hurricane Katrina in December 2005. Background At his November 2005 Board hearing the Veteran stated that he had initially hurt his hands when he fell down during a "Katrina exercise." The Veteran stated that he was walking on a frosty makeshift sidewalk when he fell backwards and tried to catch himself with his hands. He stated that he had problems with his hands ever since that fall. After the fall and hand injury he sought help from military medical personnel. He stated that he had not had problems with his hands previous to the fall but currently had pain in his knuckles, joints, and wrists. A service comrade, SM, testified that she had been present when the Veteran fell. SM stated that she knew the Veteran before the fall and stated that the Veteran did not have hand problems prior to his fall and hand injury incident but had problems with his hands thereafter. The Veteran's spouse also indicated that the Veteran had not had problems with his hands prior to his Katrina service but had continual problems with his hands thereafter. A December 2005 service treatment record indicates that the Veteran complained of pain in his hands after he had used his hands to "catch himself." The Veteran had limited movement in his hands. The assessment was possible sprain in both hands. An accompanying Statement of Medical Examination and Duty Status (DA Form 2173) documented that the Veteran had slipped an fell "due to frost" and had sprains to both hands. The Veteran complained of hand numbness and tingling on his August 2006 post-deployment heath assessment and was instructed to seek follow-up treatment for his hands in 7-10 days. VA treatment records dated in April 2006, May 2006, May 2007, June 2007, and July 2007 reflect that the Veteran complained of and sought treatment for pain, tingling, and numbness of the hands. He consistently indicated that he had hurt his hands while serving on active duty in support of Hurricane Katrina. At an August 2009 VA examination the Veteran stated that he had hurt his hands after falling while cleaning up during Hurricane Katrina. The Veteran made some complaints of hand stiffness and numbness. X-rays revealed bilateral minimal degenerative joint disease involving the finger joints. The diagnosis was bilateral carpal tunnel syndrome and early degenerative joint disease involving multiple finger joints. The examiner indicated that it was not likely that the Veteran's degenerative changes of the hands or carpal tunnel syndrome were related to his December 2005 fall. In an October 2009 letter the Veteran's private physician (BH, MD) stated that the Veteran complained of pain in both hands and pain over the distal interphalangeal joints, proximal interphalangeal joints, and metacarpalphalangeal joints. It was also noted that the Veteran had painful wrists and had been diagnosed with carpal tunnel syndrome. The physician stated that the Veteran's wrist, hands, and finger conditions could have been caused or aggravated by his December 2005 fall. At a July 2010 VA examination the Veteran complained of bilateral hand discomfort that he attributed to his December 2005 inservice fall. The examiner noted that X-rays showed progressive degenerative changes from the prior year, which were of mild degree, but had never the less shown some progression. The examiner also indicated that the Veteran's hands had less motion than the prior year, which the examiner stated would indicate progression of degenerative change. The examiner stated that while the Veteran had progressive degenerative arthritis of the hands there was no evidence at the present time of carpal tunnel syndrome. The examiner essentially stated that the Veteran's bilateral hand progressive degenerative arthritis was due to normal aging and use and was not likely related to the Veteran's military service. The evidence of record contains an opinion of etiology favorable (Dr. BH's October 2009 opinion) to the Veteran's service-connection claim and a July 2010 VA opinion that rejects the Veteran's claim. Greater weight may be placed on one physician's opinion over another depending on factors such as the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The professional credentials and experience of opinion providers are properly considered in assigning probative value. Sklar v. Brown, 5 Vet. App. 140, 146 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. Harris v. West, 203 F. 3d 1347, 1350-51 (Fed. Cir. 2000). "[M]ost of the probative value of a medical opinion comes from its reasoning." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). With these considerations in mind, the Board finds that the favorable October 2009 opinion from Dr. BH has far less probative value than the July 2010 VA examiner's opinion. The October 2009 private opinion contained no rationale or explanation for the conclusion reached. Further, the October 2009 opinion was conditional, as it was noted that the Veteran's disabilities on appeal "could" have been caused by the inservice fall. The July 2010 VA examiner, on the other hand, provide a rationale for the opinion offered by noting that the Veteran's disability of the hands was essentially due to natural use and the aging process. The July 2010 VA examiner supported his opinion by making reference to clinical and diagnostic findings of record, including X-rays. In fact, a comparison of various X-ray studies appears to be the core and foundation of the opinion offered. The October 2009 private opinion did not reference any diagnostic studies in support of his opinion. The July 2010 VA examiner not only provided a rationale for the opinion, but also did so based on a comprehensive review of the Veteran's medical history, something lacking in the October 2009 private opinion. There is also no objective evidence that the Veteran was diagnosed as having arthritis or carpal tunnel syndrome within one year of his service discharge in February 2006, and the Veteran has not asserted as such. The Veteran's assertions that his disability of the hands is related to his inservice fall must be considered. To the extent that this is a nexus opinion, the Board finds that his statement is not competent evidence. Whether a layperson opinion as to a nexus or a diagnosis is competent evidence depends on the facts of the particular case. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor for consideration is the complexity of the question to be determined. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. See Layno v. Brown, 6 Vet. App. 465, 496 (1994) (explaining that a layperson is competent to report only that which he or she observed). Whether the Veteran's hands could develop arthritis or carpal tunnel syndrome as a result of the December 2005 fall is not a question that can be determined by mere observation and is not a simple question. While the Veteran is competent to report that he has felt pain in his hands since the fall, he has not been shown to have the requisite medical training to diagnose arthritis or neurological disorders. For these reasons, the Board finds that his opinion in this regard is not competent evidence. As for continuity of symptomatology since service, the Board does not doubt that the Veteran has made consistent complaints of hand pain following service. However, it appears that a medical professional has attributed such complaints to nonservice connected disability. The criteria for service connection for a bilateral hand disorder, to include arthritis and carpal tunnel syndrome, are not met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a bilateral hand disorder, to include arthritis and carpal tunnel syndrome, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs