Citation Nr: 1324099 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 04-39 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right hand disorder, to include as secondary to service-connected chondromalacia of the left knee or right hand scar . REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2003 from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In October 2009, July 2011, and April 2013 the Board remanded the matter for additional development and medical inquiry. In August 2007, the Veteran testified at a personal hearing before the RO. In January 2013, the Veteran testified before the undersigned at a Board videoconference hearing. Transcripts of these hearings are included in the claims file, and have been reviewed. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. No relevant evidence has been added to either claims file since the most-recent supplemental statement of the case (SSOC) in June 2013. 38 C.F.R. §§19.31, 20.1304 (2012). In the April 2013 Board remand, it was noted that the Veteran had indicated in a November 2011 statement an interest in claiming service connection for a left hand disorder. As that issue has not been adjudicated, it is again referred to the RO for appropriate action. FINDING OF FACT Right hand strain and arthritis were not shown in service; right hand strain and arthritis were not shown until many years after service; and the Veteran's current right hand strain and arthritis are not related to a disease or injury of service origin, or to a service-connected disorder. CONCLUSION OF LAW Right hand strain and arthritis were not incurred in or aggravated by active service, may not be presumed related to service, and are not related to a service-connected disorder. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to this claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO submitted to the Veteran several VCAA letters dated between May 2003 and January 2010. The letters notified the Veteran regarding what information and evidence is needed to substantiate her claim of service connection. The letters notified the Veteran regarding what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The letters included provisions regarding disability ratings and effective dates. Although the Veteran was not fully notified prior to the June 2003 rating decision on appeal that decided her service connection claim, her claim was readjudicated, following full notification, in the May 2012 and June 2013 SSOCs. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification, followed by a readjudication of the claim). In sum, the Board finds that VA has met its duty to provide VCAA notification to the Veteran regarding the service connection claim addressed in this decision. With regard to the duty to assist, the Veteran's service treatment records (STRs) have been secured. The RO obtained relevant private and VA treatment records and reports. The Veteran underwent several VA compensation examinations into her claim. Certain of the examination reports were found to be inadequate, which prompted the Board previously to remand the matter for further medical inquiry. Nevertheless, collectively, particularly following the medical examination and report conducted following the most-recent remand in April 2013, the VA examination reports are found to be adequate for deciding the Veteran's service connection claim. The reports indicate that the Veteran's medical history and complaints have been reviewed, the reports provide clinical observations, and the reports have rendered assessments regarding her claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In sum, the record is sufficiently developed for a determination at this time. The Board will rely on the record to determine the claim to service connection. Appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. The Merits of the Claim to Service Connection The Veteran claims service connection for right hand disability. During her hearing in January 2013, she asserted that she injured her right hand on two occasions during service. First, she asserts that she injured her right hand during training in a fall that also injured her knee. Second, she asserts that she injured her right hand while washing dishes during active duty, which resulted in a cut and permanent scar. She maintains that these injuries caused arthritis as well. She has also asserted that right hand disability is secondary to a service-connected knee disorder, and to a service-connected right hand scar. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). When a Veteran seeks service connection for a disability, due consideration shall be given to 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; 38 C.F.R. § 3.303(a). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders such as arthritis are presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Under 38 C.F.R. § 3.310(a), service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) found that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In this matter, the record establishes that the Veteran has current disorders in her right hand. A December 2011 VA compensation examiner diagnosed the Veteran with a hand strain while VA compensation examiners in March 2007, January 2008, and May 2013 diagnosed the Veteran with right hand osteoarthritis. Moreover, private treatment records in the late 2000s note diagnoses of right hand arthritis. The record also establishes that the Veteran injured her right hand during service. February and March 1983 STRs address treatment the Veteran received for cutting her hand while washing dishes. Further, multiple STRs note that the Veteran injured herself during service as the result of falls, which included injury to her knee. Though none of these STRs specifically note a right hand injury due to a fall, the Board nevertheless finds them supportive of the Veteran's lay assertions to have injured her right hand falling in service. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). As the Veteran is competent to attest to symptoms such as the pain and limitation of function that would relate to a right hand injury from falling, her lay assertions are of probative value. These symptoms, which the Veteran directly experienced, are observable in nature. Further, the credibility of her statements is corroborated by the STRs reflecting in-service falls. Nevertheless, a service connection finding is unwarranted for any right hand disability (besides the scar recognized as service connected in April 2013). The evidence establishes that a current hand problem is not related to the in-service right hand injuries, establishes that right hand arthritis did not develop within one year of discharge from service, and establishes that a right hand disorder is not related to the service-connected knee disorder. A service connection finding on a direct, presumptive, or secondary basis is therefore unwarranted. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. With reference to direct service connection - Hickson element (3) - the question is whether the Veteran's current right hand arthritis and/or strain is related to her in-service cut or fall. For the Veteran to be successful in her claim, the evidence must show either that it is at least as likely as not that her strain and arthritis is related to a disease or injury that occurred in service. If the preponderance of the evidence shows otherwise, the Veteran's claim must be denied. Based on the record, the Board finds that the preponderance of the evidence is against Hickson element (3). Two unchallenged medical opinions of record counter the Veteran's claim to direct service connection. The December 2011 VA examiner stated that the Veteran's right hand strain likely did not relate to service because the evidence of record, to include the Veteran's STR's, did not indicate "chronic problems in her right hand." The examiner indicated a review of the claims file, and an examination of the Veteran, moreover. Likewise, the March 2013 VA examiner indicated a review of the claims file and an examination of the Veteran, and stated that the Veteran's right hand arthritis was likely not related to service due to the fact that neither STRs nor post-service medical evidence indicated a chronic right hand disorder incurred in service. The examiner specifically stated that "there is no medical literature that supports the Veteran's claim that a superficial laceration would cause widespread [arthritis] of the right hand." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-1 (2008) (to have probative value, a medical examination submitted to the Board must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusions with an analysis that can be considered and weighed against contrary opinions). Further, as the earliest medical evidence of record of a chronic right hand disorder is dated in the mid-2000s, over 20 years following discharge from active service, the Board finds each opinion, and each supporting rationale, to be based on the evidence of record. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). The Board also finds a presumptive service connection finding under 38 C.F.R. § 3.307 and § 3.309 unwarranted because no evidence of record documents the presence of arthritis in the right hand in the year following the Veteran's September 1983 discharge from active service. As noted, the earliest evidence of arthritis is dated in the late 2000s, over 20 years following service. See Walker, supra. Lastly, the preponderance of the evidence is also against a finding of secondary service connection based on a service-connected knee disorder, or on the service-connected right hand scar. 38 C.F.R. § 3.310. As with the issue of direct service connection, unchallenged VA medical opinions counter this particular theory of entitlement as well. The January 2008 VA examiner, who indicated a review of the claims file and an examination of the Veteran, found the knee disability and right hand disorder unrelated. The examiner stated that "no supporting evidence" indicates that the right hand arthritis was caused by, or was a result of, a knee disorder. The December 2011 VA examiner similarly found the right hand disorder unrelated to the knee disorder, stating that "[t]here is no evidence in current medical literature that arthritis in one joint causes arthritis in other joints. There is no anatomic connection between her right hand and her left knee." This examiner found, moreover, that the Veteran did not have "non-degenerative arthritis" such as rheumatoid arthritis. The May 2013 VA examiner specifically addressed the issue of whether the right hand arthritis was secondary to the Veteran's right hand scar, service connected in May 2013. The examiner stated that "no medical evidence" supports the proposition that a scar due to a "superficial laceration" would cause arthritis. See Nieves-Rodriguez and Stefl, both supra. The Board has reviewed a July 2008 statement from a private physician to determine whether it can be construed as favorable to the Veteran's claim. The letter states that the physician is the Veteran's "current Rheumatologist[.]" The physician indicated a review of the claims file, and commented, in relevant part, on the Veteran's "osteoarthritis[.]" The physician stated generally that the Veteran had osteoarthritis that "is secondary" to her service-connected left knee disorder. The examiner also specifically found the Veteran with osteoarthritis in her right hand. However, in the letter's pivotal paragraph addressing what specifically related to the left knee disorder, the examiner omitted mention of the right hand arthritis while noting specifically an arthritic lower back disorder (service connected since November 2005). The physician appears to merely note the right hand arthritis without specifically relating it to either service or to a service-connected disorder. Hence, this letter cannot be construed as probative evidence in favor of the claim to service connection. The Board has closely considered the Veteran's lay statements of record asserting a medical nexus between service and the right hand disorder, and between the left knee disorder and the right hand disorder. Again, the Veteran is competent to comment on right hand pain and limitation she experienced during service, and on right hand pain and limitation she currently experiences. These are observable matters. See Jandreau and Buchanan, both supra. However, her statements are of limited value regarding the issue of medical nexus because the Veteran is not competent to render diagnoses or comment on the issue of etiology. The disabilities at issue in this matter involve internal muscular and degenerative pathologies that are beyond the capacity for lay observation. Their etiology and development cannot be determined through observation or by sensation such as feeling. Indeed, the Veteran's lay assertions regarding the way in which her hand problems developed are not persuasive. She does not have the training and expertise to provide probative medical evidence connecting service to the symptoms, or connecting the symptoms to a knee disorder. The Veteran is not competent to state that what she may have felt during service, or has felt since service, resulted in her current right hand problems. On this essentially medical question, the medical evidence is of more probative value. And the medical evidence clearly indicates no relationship between the Veteran's current hand problems and her service, or her service-connected knee problems. In sum, the record documents that the Veteran has current right hand disorders, and that she injured her right hand during service. However, the preponderance of the evidence of record indicates that the current right hand disorders at issue in this decision are unrelated to service, and to a service-connected knee disorder or service-connected right hand scar. As such, a service connection finding is unwarranted in this matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for right hand strain and right hand arthritis is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs