Citation Nr: 1328084 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 06-33 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left hand disability. REPRESENTATION The Veteran is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to June 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. This claim was previously before the Board in September 2012 at which time it was remanded for additional development. Following a June 2013 supplemental statement of the case, the matter has been returned to the Board for further appellate review. The Veteran testified at a Board hearing in June 2009. A copy of the transcript has been associated with the claims file. FINDING OF FACT The Veteran's left hand disability is not related to service, nor did a chronic disease manifest to a compensable degree within one year of service CONCLUSION OF LAW The criteria for service connection for a left hand disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist veterans in substantiating claims 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, 3.326(a) (2012). Proper notice from VA must inform the veteran of any information and 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 veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service connection claim, including: (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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Prior to the initial adjudication of the Veteran's claim, the RO sent the Veteran letters in January 2006 and March 2006 advising him of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman, 19 Vet. App. at 486. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is required to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Additionally, the duty to assist the Veteran has also been satisfied in this case. The RO obtained the Veteran's service treatment records and his identified VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As will be detailed immediately below, there was no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the pendency of this appeal, the Veteran submitted a statement wherein he asserted that he was treated at for left hand disability while stationed at Camp Casey or Camp Hovey, Korea, between April 1 and June 29, 1970. Based on this assertion, in July 2007, the RO submitted to the National Personnel Records Center (NPRC) a request for the Veteran's clinical and inpatient records dated between April 1, 1970 and June 29, 1970 associated with Camp Casey and Camp Hovey, Korea. In August 2007, NPRC conducted a search for records associated with 121st Evacuation Hospital dated in 1970, but no responsive documents were located. In September 1970, the RO issued a memorandum of unavailability for clinical records showing treatment for left hand disability in 1970 and 1971 for Camp Casey and Camp Hovey, Korea. Although no searches were undertaken on this occasion for records dated in 1971, the RO determined that the searches that were undertaken would have yielded records from 1971 if they had been available. In August 2007, the Veteran amended his previous statement regarding the dates of treatment received at Camp Casey and Camp Hovey to between January 1970 to December 1971. Additionally, during a June 2009 Board hearing, the Veteran stated that the left hand injury occurred while he was stationed at Camp Casey, Korea in June 1971. The Veteran stated that he went to sick call on this occasion. In August 2010, the RO submitted a request to NPRC for the Veteran's morning reports associated with "Camp Kasey" from May 1, 1971 to June 1, 1971. A response was received from NPRC in September 2010 that indicated that a search could not be performed without information as to the Veteran's company, unit, and regiment. In September 2010, the RO submitted another request for the Veteran's sick call records associated with Camp Casey, Korea, dated from May 1, 1971 to June 30, 1971. This request included the Veteran's unit of assignment. NPRC responded in October 2010 that all of the Veteran's available treatment records were previously located and mailed to the RO. In February 2012, the RO submitted another request to NPRC for the Veteran's clinical records, dated from May 1, 1971 to June 30, 1971, associated with Camp Casey, Korea. NPRC provided a negative response in March 2012. In September 2012, the RO sent the Veteran a letter requesting that he submit any additional relevant evidence, including service treatment reports from Camp Casey, Korea. The Veteran did not respond. The Veteran also asserted that he received treatment for left hand disability at the Dallas, Texas VA Medical Center (VAMC) in 1972 or 1973. The RO submitted requests for these records in November 2007, June 2008, August 2008, and October 2008, to include the VAMC in Bonham, Texas. The RO received treatment records from the Dallas VAMC dated between February 2, 1999 and December 28, 2006. Neither the Dallas VAMC nor the Bonham VAMC located records for the Veteran dated between January 1, 1972 and December 31, 1973. The RO sent the Veteran letters in June 2008, August 2008, and September 2012 requesting that he obtain and submit treatment records, dated from January 1, 1972 to December 31, 1973, from the Dallas VAMC. The RO did not receive these records from the Veteran, and did not receive a response from the Veteran after the September 2012 letter. In January 2009, the RO issued a memorandum of unavailability for the Veteran's treatment records, dated between January 1, 1972 and December 31, 1973, from the Bonham/Dallas VAMCs. In April 2012, the RO issued a memorandum of unavailability for the Veteran's sick call records associated with Camp Casey, Korea, dated from May 1, 1971 to June 30, 1971, and the Veteran's VA treatment records, dated in 1971, from the Dallas VAMC. Additionally, with respect to VA's duty to assist, the Veteran was provided a VA examination in December 2006. Although the Veteran's claims file was not made available to the examiner for contemporaneous review, the Board finds that the December 2006 VA examination is, nonetheless, adequate for purposes of adjudicating his service connection claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (holding that the claims file is not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion to assist the adjudicator in making a decision on a claim). The Veteran has not asserted and the record did not otherwise reflect that the correct facts were not before the examiner, which is the salient question with respect to determining the adequacy of the examination. Nieves-Rodriguez, 22 Vet. App. at 303. During the examination, the Veteran provided a description of the claimed inservice left hand injury, discussed the claimed inservice treatment he received for that injury, and reported that he was treated at the Dallas VAMC immediately following his service separation. The examiner considered these statements in addition to the clinical and radiological results obtained from the examination. Beyond a 1970 radiological examination report that revealed no significant abnormality of the Veteran's left ring finger, the Veteran's service treatment records did not document the claimed inservice injury and/or treatment he received for that injury. Further, VA was unable to obtain the Veteran's 1971, 1972, or 1973 VA treatment records from the Dallas VAMC, if any. Thus, records reflecting such treatment were not associated with the claims file at the time of the December 2006 VA examination. Consequently, the Veteran was not prejudiced because the examiner did not have his claims file to review contemporaneously. The examiner considered the Veteran's statements and administered a physical examination. At the conclusion of the examination, the examiner rendered a diagnosis of "possible" old left hand fracture of the left fourth finger or metacarpal area. To confirm this diagnosis, the examiner ordered two radiological images, one of the Veteran's left hand and one of his left fourth finger. Beyond observing a normal variation of the Veteran's fourth finger proximal phalangeal neck area, the X-rays were unremarkable. Pursuant to a September 2012 Board remand, the RO scheduled the Veteran for several VA examinations in order to ascertain the presence of left hand disability and to determine if any left hand disability was etiologically related to his active duty. The Veteran did not appear for scheduled VA examinations on October 12, 2010, January 23, 2013, March 7, 2013, and June 3, 2013. Further, the Veteran did not provide VA with good cause as to why he did not appear. The Board reminds the Veteran that corresponding to VA's duty to assist the Veteran in obtaining information is a duty on the part of the Veteran to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one- way street"). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009)(reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In July 2010, the Board remanded the Veteran's claim of entitlement to service connection for left hand disability. The Board requested that the RO undertake efforts to obtain the Veteran's service treatment records from Camp Casey, Korea, dated from May 1971 to June 1971, to include searches using two different Social Security numbers. The Board also requested that the RO attempt to obtain the Veteran's VA treatment records from the Dallas VAMC, dated in 1971, including searches using two different Social Security numbers. In September 2012, the Board remanded the Veteran's claim for additional development. Specifically, the Board requested the RO to send the Veteran a letter requesting that he submit service treatment records associated with the treatment he received at Camp Casey and the Dallas VAMC in 1971. The Board also directed the RO to provide the Veteran a VA examination. The details of the RO's efforts to obtain treatment records associated with the Veteran's claimed inservice treatment at Camp Casey, Korea, and/or the Dallas VAMC were discussed above; the Board will not reiterate them here. The RO documented its efforts to obtain these records and, ultimately, issued memoranda of unavailability. Further efforts to obtain these records would be futile. The RO's efforts to obtain these records complied with the July 2010 and September 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). As for providing the Veteran a VA examination, the RO scheduled him for several examinations subsequent to the September 2012 remand. The Veteran did not appear for any of these examinations and did not provide VA with good cause for his absences. Consequently, the RO complied with the Board's September 2012 remand directive with respect to affording the Veteran a VA examination. Id. As the RO has complied with the July 2010 and September 2012 remands, an additional remand is not required for corrective action. As such, the Board will adjudicate the merits of the Veteran's claim based on the evidence of record. 38 C.F.R. § 3.655(b) (2012). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The Veteran's service treatment records demonstrated that, in September 1970, he underwent a radiological examination of his left ring finger. The Veteran's symptoms, the details of the underlying injury, if any, and the reason for obtaining the X-ray were not provided. Ultimately, the X-rays showed "no significant abnormality." The remainder of the Veteran's service treatment records was negative for complaints of or treatment for left hand disability. Upon separation from service in June 1971, the Veteran underwent an examination. Pursuant to this examination, the Veteran's upper extremities and musculoskeletal system were deemed clinically normal. There was no indication in the resulting report that the Veteran complained of or was treated for left hand disability or symptoms thereof. In a June 2006 statement, the Veteran asserted that he incurred a "permanent disfigured hand injury" while on active duty in Korea, specifically, while stationed at Camp Casey and Camp Hovey. He stated that went to sick call for hand injuries while stationed at those facilities, and received treatment immediately prior to his separation. The Veteran then stated that he filed a claim of entitlement to service connection for left hand disability and he underwent a radiological examination. In December 2006, the Veteran underwent a VA examination in order to ascertain the presence of left hand disability and, if any, to obtain an opinion as to whether any left disability was incurred in or due to his active duty. The Veteran reported that he injured his left hand while stationed in Korea. Specifically, he stated that he injured his left hand when he tripped, fell and, apparently, had his hand stepped on by another service member. He reported that he was treated in Korea and that X-rays revealed a fracture. He stated that his left fourth finger was splinted for two or three months. He then asserted that he was treated for a left hand disability at the Dallas VAMC in 1971. The Veteran stated that a radiological examination on that occasion revealed a "possible fracture unknown." After a physical examination, the diagnosis was possible old fracture of the left fourth finger or metacarpal area. During the physical examination, the Veteran endorsed almost daily pain, especially with overuse; regular swelling; and difficulty bending his left fourth finger. The examiner found that the Veteran's finger was normal in appearance, with no deformity, no swelling, and no palpable tenderness. The Veteran was unable to touch his left fourth finger to his thumb. The examiner determined that a radiological examination was required in order to confirm the diagnosis. An X-ray of the Veteran's left hand was obtained and revealed a slightly deformed fourth finger proximal phalangeal neck area. This slight deformity was deemed a normal variation, not an old, solidly healed fracture. The X-ray was otherwise unremarkable. An X-ray of the Veteran's left fourth finger was also obtained and revealed no evidence of fractures or dislocations. The joint line spaces were maintained, and the soft tissue was unremarkable. In June 2006, the Veteran submitted a statement wherein he asserted that he was treated for left hand disability sometime between April 1, 1970 and June 29, 1970. In an August 2007 statement, the Veteran amended his statement regarding the dates of the inservice treatment to between January 1970 and December 1971. During a June 2009 Board hearing, the Veteran testified that he served as a Gunner on a tank. During the process of reloading ammunition in June 1971, the Veteran asserted that his left hand was struck by an aspect of the gun mechanism (the hammer) and that his left hand was "knocked out of place." He also stated that he sustained a laceration that bled and that his hand swelled up. The Veteran stated that this occurred while he was stationed in Korea. After being treated in the field by a medic, the Veteran said that he went to sick call and was treated for this injury on two or three occasions. He stated that seven X-rays were obtained, that his handprints were obtained, and that he was informed by a doctor that he had sustained a fracture. He stated that his hand was wrapped/splinted, was prescribed a medication, and was placed on a light duty profile. Within two or three weeks of his service discharge, the Veteran stated that he received treatment for his left hand at the Dallas VAMC. The Veteran stated that he experienced pain and stiffness, which worsened with cold weather and prolonged working. The evidence does not demonstrate the presence of a diagnosable left hand disability. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The December 2006 VA examiner determined that the slight deformity of his left fourth finger was a natural variation, not an old, solidly healed fracture. The evidence was otherwise negative for a left hand diagnosis. Indeed, radiological examination of the Veteran's left hand and left fourth finger were unremarkable. However, during the December 2006 VA examination, the Veteran endorsed pain and swelling, and exhibited difficulty with range of motion. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). However, pain that causes a function loss of limitation is a disability that can be service connected. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).The Board finds that, based on the findings from the December 2006 VA examination and the Veteran's statements, it remains unclear whether the Veteran has current left hand disability for which service connection can be granted. However, a determination with respect to a current diagnosis is unnecessary because moot as the disposition of the Veteran's claim rests on different aspects of the criteria for service connection. In order to establish service connection, the evidence of record must include competent evidence of a nexus or connection between an inservice event and a left hand disability. The Veteran's assertions represent the only evidence of record that current left hand disability was incurred in or due to his active service. However, to the extent that the Veteran asserts that a left hand disability was incurred in or due to his active service, as a lay person, his statements and assertions are not competent evidence as to matters that require medical expertise. Medical causation involves questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Because the Veteran is not demonstrated to be a medical professional, his statements are not competent evidence as to an etiological relationship between left hand disability and any injury suffered during his active service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has been provided several opportunities to undergo VA examinations that could have resulted in evidence favorable to his claim. Indeed the Veteran was scheduled to undergo VA examinations on October 12, 2010, January 23, 2013, March 7, 2013, and June 3, 2013. However, the Veteran did not appear for any of the scheduled VA examinations, and did not provide VA with good cause as to why he did not appear. See Wood, 1 Vet. App. at 193; Turk, 21 Vet. App. at 568. Therefore, the Board is required to adjudicate the Veteran's claim based on the evidence of record. 38 C.F.R. § 3.655. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). There is no competent post-service evidence that relates a left hand disability to the Veteran's active duty. The only competent opinion of record is that of the December 2006 VA examiner, which is negative to the Veteran's claim. Specifically, the examiner determined that the slightly deformed fourth finger proximal phalangeal neck area was a natural variation, not an old, solidly healed fracture. The examiner did not specifically opine that the Veteran's slightly deformed fourth finger proximal phalangeal neck area was not etiologically associated with an inservice injury or otherwise related to his active duty. However, the examiner's determination that the slight deformity was a "natural variation" effectively disassociates it from the Veteran's claimed inservice injury or his active duty. The Board finds that the October 2006 VA examiner's opinion to be highly probative. With respect to continuity of symptomatology, the Veteran has essentially asserted that left hand disability began during his active service and that it has existed since then. In regard to his reports of chronic symptoms since service, such as pain, continuity of symptomatology under 38 C.F.R. § 3.303(b) only applies to those disabilities recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A diagnosis of left hand disability that is recognized as chronic under 38 C.F.R. § 3.309(a) has not been rendered with respect to the Veteran's left hand and, thus, service connection based on continuity of symptomatology is not available. Additionally, the Veteran essentially asserted that left hand disability was present to a compensable level shortly after his separation from active service. Specifically, the Veteran stated that he underwent treatment at the Dallas VAMC within weeks of his service separation. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (holding that VA must consider all possible theories of entitlement raised by the claimant or the evidence of record). Generally, service connection for certain chronic diseases will be presumed if they are manifest to a compensable degree within a prescribed period of time after active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A diagnosis of left hand disability has not been rendered for which presumptive service connection is available. Based on the above, service connection for left hand disability is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the evidence is not at least in equipoise, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left hand disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs