Citation Nr: 1327198 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-24 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the right ankle. 2. Entitlement to service connection for pseudofolliculitis barbae. 3. Entitlement to service connection for a stress fracture of the left second metatarsal. 4. Entitlement to service connection for left wrist strain. 5. Entitlement to service connection for a right hand disability, claimed as arthritis. 6. Entitlement to service connection for a left hand disability, claimed as arthritis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from March 1986 to April 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a May 2010 substantive appeal (VA Form 9), the Veteran perfected an appeal to the denial of service connection for degenerative joint disease of the right ankle, pseudofolliculitis barbae, a stress fracture of the left second metatarsal, left wrist strain, and degenerative joint disease of the right and left hands. The Veteran testified at May 2013 Board videoconference hearing before the undersigned. The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. On May 7, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for service connection for degenerative joint disease of the right ankle, pseudofolliculitis barbae, a stress fracture of the left second metatarsal, and left wrist strain is requested. 2. The Veteran experienced chronic symptoms related to arthritis in the bilateral hands in service. 3. The Veteran had continuous symptoms of bilateral hand pain related to arthritis since service separation. 4. Currently diagnosis of arthritis in the bilateral hands is related to service. CONCLUSIONS OF LAWS 1. The criteria for withdrawal of an appeal for service connection for degenerative joint disease of the right ankle, pseudofolliculitis barbae, a stress fracture of the left second metatarsal, and left wrist strain by the appellant has been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for arthritis in the right hand have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for arthritis in the left hand have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn the appeal for service connection for degenerative joint disease of the right ankle, pseudofolliculitis barbae, a stress fracture of the left second metatarsal, and left wrist strain and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for service connection for degenerative joint disease of the right ankle, pseudofolliculitis barbae, a stress fracture of the left second metatarsal, and left wrist strain, and these issues are dismissed. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). In the present case, the Board is granting the claim for service connection for arthritis in the right and left hands. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, arthritis is a "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in service symptoms and continuous post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or where the diagnosis of chronicity may be legitimately questioned "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service Connection Analysis The Veteran contends in lay statements and during a May 2013 Board hearing that he has currently diagnosed osteoarthritis in the bilateral hands, and that bilateral hand pain has been present and persistent since service in 2006. After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the weight of the evidence shows that currently diagnosed arthritis in the right and left hands was incurred in service. The evidence shows that the Veteran experienced chronic symptoms related to arthritis in the hands during service, that he had continuous symptoms related to arthritis since service separation. The Board finds that the Veteran experienced chronic symptoms related to arthritis in the bilateral hands in service. Service treatment records show that the Veteran was treated for pain and joint stiffness in the left wrist in August 2006. In November 2006, the Veteran was treated with bilateral finger and hand pain, diagnosed as arthritis, rheumatism versus osteoarthritis. An associated radiology report reflects an impression of osteoarthritis in multiple joints of each finger on both hands. A December 2006 radiology report shows that the Veteran was evaluated for possible arthritis in multiple joints of the fingers on both hands. There was mild osteophytosis of the distal interphlangeal joints bilaterally, otherwise there were no appreciable findings to suggest degenerative changes at the distal interphlangeal, proximal interphlangeal, or metacarpal phalangeal joints bilaterally. Distal interphlangeal joint degenerative changes were stated to be very minimal at best. In light of the forging, the Board finds that the Veteran was treated with bilateral hand symptoms related to arthritis in service, diagnosed as degenerative changes in the distal interphlangeal joints. The Board finds that the Veteran experienced continuous symptoms of bilateral hand pain related to arthritis since service separation. The Veteran submitted his present claim for service connection for a bilateral hand condition, to include arthritis, just two months after his separation from service. An August 2007 VA examination shows that the Veteran reported bilateral hand pain present since 2006. He described current hand symptoms to include intermittent pain in the bilateral hands, pain with gripping, and occasional swelling. The Veteran was diagnosed with degenerative joint disease in the bilateral hands by history; however, x-rays of the bilateral hands were negative, and the VA examiner stated that there was no evidence of a disease process in the right and left hands based on x-ray findings. The Veteran testified in May 2013 that he worked with his hands as a technician in service, and reported that he was first treated for right hand pain in 2006. Lay statements from the Veteran's coworkers, T.M. and. S.C. show that the Veteran had continued problems with working with his hands post-service, since 2007, and that he requested assistance with routine tasks at work, such as connecting cables, removing circuit cares, loosening fasteners, and tying knots due to problems with his hands. The Board finds that the Veteran is competent to provide testimony and statements addressing his symptoms, treatment, and difficulties with working with his hands in service, and the Board finds that his statements are credible and consistent with findings in the service treatment records, which reflect complaints of bilateral hand pain related to arthritis in service, as well as continuing reports of bilateral hand pain after service separation. The Board finds that T.M. and S.C. have also provided competent and credible evidence in support of the Veteran's claim, showing that the Veteran's bilateral hand symptoms were continuous after service separation. For these reasons, the Board finds that the Veteran's bilateral hand symptoms were chronic in service and continuous since service separation. Where there are chronic symptoms of disability during service, such "subsequent manifestations of the same chronic disease" at any later date are to be service connected. 38 C.F.R. § 3.303(b); see also Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements on in-service and post-service symptoms later formed the basis of diagnosis); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). In addition, there is an October 2008 private treatment report, dated just over one year after service separation, that reflects a current diagnosis of osteoarthritis in the bilateral hands based on the Veteran's symptoms and presentation; however, an x-ray evaluation was not associated with this report. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the October 2008 private treatment report provides competent, credible, and probative evidence showing that the Veteran has currently diagnosed arthritis of the bilateral hands. The Board finds that the Veteran has provided competent, credible, and probative lay and medical evidence showing chronic symptoms related to arthritis in the bilateral hands in service, continuous symptoms of arthritis in the bilateral hands since service separation, and a current diagnosis of arthritis of the bilateral hands. Resolving reasonable doubt in the Veteran's favor, the Board finds that currently diagnosed arthritis in the right and left hands is related to service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal for service connection for degenerative joint disease of the right ankle, pseudofolliculitis barbae, a stress fracture of the left second metatarsal, and left wrist strain is dismissed. Service connection for arthritis in the right hand is granted. Service connection for arthritis in the left hand is granted. ____________________________________________ MATTHEW TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs