Citation Nr: 1329683 Decision Date: 08/22/13 Archive Date: 09/24/13 DOCKET NO. 09-00 296 ) DATE AUG 22 2013 ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether vacatur of the portion of an April 26, 2013 Decision and Remand of the Board of Veterans’ Appeals that denied service connection for a left hand disorder, other than for a foreign body at the base of the thumb, is warranted. 2. Entitlement to service connection for a right hand disorder, including degenerative joint disease, and including as secondary to a service-connected postoperative right femur fracture, with right knee disability. 3. Entitlement to service connection for a left hand disorder, other than foreign bodies at the base of the thumb, including degenerative joint disease and Dupuytren's contracture, and including as secondary to a service-connected postoperative right femur fracture, with right knee disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION Please note this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active duty service from September 1966 until August 1970. This matter originally came before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board Remanded the appeal in February 2010 and in April 2011. Following the April 2011 Remand, by a December 2012 rating decision, the RO granted service connection for status post left hand/thumb foreign body. The Veteran did not disagree with any aspect of that grant of service connection. Therefore, no aspect of any claim other than those listed on the title page is before the Board for appellate review at this time. In an April 26, 2013, Decision and Remand, the Board denied service connection for a left hand disorder, other than for a foreign body at the base of the thumb, to include degenerative joint disease (DJD) and Dupuytren’s contracture, and Remanded claims for service connection for a right hand disorder and for TDIU. The claim addressed in the Decision must be vacated, for the reasons explained below, and that claim will be considered de novo by the Board. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing held at the RO, via videoconference, in March 2009. At this hearing, the Veteran testified regarding entitlement to service connection for a right hand disorder and for a left hand disorder. The Veteran has, since the 2009 videoconference hearing, perfected appeal of a claim for TDIU. By a substantive appeal received in June 2013, the Veteran requested a Videoconference hearing. The Veteran is entitled to a hearing before the Board regarding each issue on appeal, and, since his claim for TDIU was not on appeal at the time of the prior Videoconference hearing, the request for a Videoconference hearing submitted with appeal of the TDIU claim is addressed in the Remand appended to this Vacatur and Decision. The claim for service connection for a disorder of the right hand and the claim for TDIU benefits are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the time of an April 26, 2013 Board decision, which, in pertinet part, denied service connection for a left hand disorder, other than for a foreign body, left hand/thumb, to include degenerative joint disease (DJD) and Dupuytren’s contracture, the Veteran had appointed a representative, but the representation was not noted in the Board decision, and the Board did not issue a copy of that decision to the Veteran’s representative. 2. The preponderance of the medical evidence establishes that degenerative disease of the left hand and Dupuytren's contracture of the left hand are unrelated to an accident incurred in service and the left hand DJD and Dupuytren's contracture are not etiologically due to or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The portion of the April 26, 2013 decision of the Board which denied entitlement to service connection for a left hand disorder, other than for a foreign body at the base of the thumb, to include degenerative joint disease (DJD) and Dupuytren’s contracture, was not issued in accordance with due process and must be vacated. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012); 38 C.F.R. § 20.904 (2012). 2. The criteria for service connection for degenerative disease of the left hand and Dupuytren's contracture of the left hand are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Vacatur of Decision portion of April 2013 Board Decision and Remand In January 2013, the Veteran appointed an accredited representative, the Georgia Department of Veterans Services, to represent him. A copy of a February 2013 supplemental statement of the case (SSOC) was issued to the representative, and the representative provided argument regarding the issue addressed on the merits in this decision on the Veteran’s behalf in March 2013. The Board did not note the Veteran’s representation when it issued an April 26, 2013 Decision and Remand, which in the Decision portion, denied entitlement to service connection for a left hand disorder, other than for a foreign body at the base of the thumb, to include degenerative joint disease (DJD) and Dupuytren’s contracture; two claims (sc for a right hand disorder and entitlement to TDIU) were Remanded in the Remand appended to that decision. There is no notation that a copy of the Board decision was issued to the Veteran’s representative. Because the omission of notice to the Veteran’s representative of a final decision of the Board may constitute a denial of due process, the Board finds that the portion of the April 26, 2013 Decision and Remand which denied service connection for a left hand disorder, other than for a foreign body at the base of the thumb, to include degenerative joint disease (DJD) and Dupuytren’s contracture, should be vacated. Statutory and regulatory notice and duty to assist provisions are not applicable as to this vacatur because the issue presented is solely one of statutory interpretation. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 21.32, 21.33. The Veterans Claims Assistant Act of 2000 has no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b). Rather, the Board will reconsider the Veteran's claims as if the February 2012 decision had never been issued. See 38 C.F.R. § 20.904(a)(3). An appellate decision may be vacated at any time upon the request of the appellant or his representative, or on the Board's own motion, when there has been a denial of due process. Here, because the issuance of the April 2013 Board decision thwarted the Veteran's right to representation, it must be vacated on due process grounds. 38 C.F.R. 20.904(a) (2012). II. Claim for service connection The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties 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, 3.326(a) (2012). Duty to Notify VA has a duty to inform a claimant 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 in accordance with 38 C.F.R. § 3.159(b)(1). 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). A claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify the Veteran of the criteria for service connection was satisfied by way of an initial letter sent to the Veteran in August 2006. The letter specifically addressed the criteria for service connection, and the letter included information complying with Dingess. Additionally, the Board's February 2010 Remand and letters issued following that Remand provided additional information to the Veteran regarding the evidence required to establish service connection for left hand disorder. Finally, the Board’s April 2011 Remand advised the Veteran of the types of evidence missing that might substantiate the claim addressed in this decision. The Veteran does not allege that he has been prejudiced by any lack of notice. No defect in notice is apparent from the record. In this case, the Veteran received pre-adjudicative notice and numerous post-adjudicative notices followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran testified at a hearing before the undersigned in March 2009 regarding the service connection claim addressed in the Decision portion of this Vacatur and Decision. At that time, the Board member discussed with the Veteran the Veteran's belief that his disorders of the hands bilaterally were due to an accident in service. The Veteran was advised that there was no dispute that he sustained an accident in service, and that the additional evidence required was medical evidence and opinion to substantiate the claim. Transcript, (Tr.) March 2009 Videoconference hearing, pages 18-22. The Veteran requested additional VA examination. The Veteran's discussion of the evidence at the hearing before the Board demonstrates that the Veteran understood what evidence was necessary to substantiate his claims regarding the left hand. 38 C.F.R. § 3.103 (2012); Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010). In any event, as noted above, additional notice was issued following the Board's 2010 and 2011 Remands. If any notice deficiency remained following the Veteran's hearing, that deficiency was addressed in the post-hearing communications to the Veteran. The Board finds that any prejudice due to an error in notice has been overcome in this case by the complete development conducted following the 2010 and 2011 Board Remands. The record demonstrates that the Veteran has actual knowledge of the evidence required to substantiate the service connection claim at issue. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Duty to Assist The duty to assist is applicable to the claim for service connection addressed herein. This duty includes assisting a claimant in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty includes assisting a claimant in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records were obtained prior to the Board’s 2010 Decision and Remand. VA treatment records have been obtained. VA examinations of the hands were obtained, with the most recent examination conducted in July 2011. The evidence of record, to include the electronic (Virtual VA) record, is lengthy. The Veteran has not identified any additional evidence regarding treatment of the left hand, nor has his representative suggested that any additional evidence is required. See March 2013 Statement of Accredited Representative in Appealed Case. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim addressed in the Decision portion of this Vacatur and Decision. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and regulations governing service connection claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. In a recent decision, the Court of Appeals for the Federal Circuit (Federal Circuit) has clarified the interpretation of the methods of establishing service connection under 38 C.F.R. § 3.303. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The criteria for service connection under § 3.303(a) are satisfied, according to the Federal Circuit, when a three-element test is met. The evidence must establish (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 (the so-called "nexus" requirement). Subsection (a) also refers to "each disabling condition...for which [a Veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Id. If a Veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the Veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the Veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Id. The second way to establish service connection set forth in § 3.303(b) is restricted to chronic diseases defined as such by VA regulation. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and the Veteran's service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. The Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed § 3.309(a) regardless of the point in time when a Veteran's chronic disease is either shown or noted. Id. Under 38 U.S.C.A. § 1101, arthritis, also called degenerative joint disease (DJD), is defined as a chronic disease. Thus, arthritis may be presumed to have been incurred in service, if manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may also be established for arthritis of the left hand in this case if there is proven continuity of symptomatology. Service connection may also be granted when a claimed disability is found to be proximately due to or the result of (secondary to) a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Aggravation is defined for purposes of Veterans' benefits as a permanent worsening of the underlying condition; a temporary flare-up of symptoms, alone, does not constitute aggravation. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible). Facts The Veteran was injured in a motorcycle accident during his service, in 1968. The Veteran was hit by a driver who was charged with driving while intoxicated. The Veteran incurred a fracture of the right femur which required internal fixation; the internal fixation devise was later removed. The Veteran had surgical treatment of the right foot as well. The Veteran's right hip, left foot, and right knee were also injured. The Veteran first sought service connection for the residuals of his in-service accident in 2006. By a rating decision issued December 2012, service connection was granted for status post left hand/thumb foreign bodies, effective in 2006. The Veteran contends that he is additionally entitled to service connection for DJD of the left hand and a contracture of the left hand. The examiner who conducted January 2007 VA examination determined that the Veteran had DJD, left hand, Peyronie's disease, and that foreign bodies were shown at the base of the left thumb. For information only, the Board notes that Peyronie's disease is a painful fibrous curvature affecting the penis. Dorland's Illustrated Medical Dictionary 548 (31st ed. 2007). Following the Board's 2010 Remand, the Veteran was afforded July 2011 VA examination of the left hand. At that time, the examiner noted the Veteran's report that his left hand was more painful than his right hand. The Veteran reported pain in the knuckles, thickening in the palms of both hands. He could not recall the date of onset of the problems. The examiner concluded that the Veteran had degenerative joint disease in the left hand, but that this disorder was unrelated to the accident in service or to injuries incurred in service or any other incident of the Veteran's service. The examiner also concluded that the Veteran had Dupuytren's contractures in both hands. The Board notes that Dupuytren's contracture is defined as a disease of the palmar fascia resulting in flexion contracture of a finger or digit of the hand caused by shortening, thickening, and fibrosis of the palmar fascia. Dorland's Illustrated Medical Dictionary 416 (31st ed. 2007). In an addendum dated in July 2011, the examiner stated that the foreign objects in the left thumb region were due to an injury, which, historically, was likely related to the accident in service, even though there was no scar. However, the examiner opined, the Dupuytren's contracture and the degenerative joint disease of the left hand were unrelated to the accident or any specific incident. Rather, the examiner opined, the DJD of the hand was a result of the aging process. The examiner explained that the widespread changes in the hands were not localized and therefore could not be related to a specific injury. The examiner also explained that the Dupuytren's contracture of the left hand was a degenerative change process, and that Dupuytren's contracture is not due to trauma, and was not due to a specific injury. The examiner concluded that it was less than likely that the Dupuytren's contracture or left hand DJD was incurred as a result of or aggravated by the in-service injury. The examiner also concluded that there were no sequelae of the left thumb inclusions. Analysis Service connection for a foreign body, left hand/thumb, has been granted. The medical evidence, primarily the VA examination reports and July 2011 addendum, are unfavorable to the claim for service connection for any disorder of the left hand, other than the foreign bodies, for which an award of service connection is in effect. The VA examination reports and opinion establish that the in-service motorcycle accident did not cause DJD of the left hand. The examiner provided the rationale that DJD was a degenerative disease, and that the extent of DJD in the Veteran’s left hand could be explained by the aging process. Moreover, the examiner explained, the Veteran had DJD in both hands, decreasing the probability that DJD in the left hand was due to an injury, since the right hand, which was not known to be injured, had DJD similar to the level in the left hand. The examiner also opined that the Veteran’s DJD was not aggravated by the service-connected disability, that is, the foreign objects, since the extent of DJD was similar in both hands. The VA examination reports and opinion also establish that the in-service motorcycle accident did not cause Dupuytren's contracture. The examiner explained that Dupuytren's contracture was a degenerative process that was not secondary to a specific injury. Again, the examiner noted that the Veteran had Dupuytren's contracture in each hand, although it was more apparent in the left hand. The examiner also concluded that the Dupuytren's contracture in the left hand was not aggravated by the presence of the foreign bodies, since the injury and foreign bodies did not result in atrophy of the thenar eminence or any muscle and did not result in a neurologic deficit of the left hand. The Veteran has not provided lay evidence that pain in the left hand had an onset in service or soon after of within one year. Rather, the Veteran has testified that he does not recall the date of onset of his current symptoms. This lay evidence is not favorable or unfavorable to the claim. The record reflects that the Veteran worked as a self-employed contractor and in construction following his 1970 service discharge through the date of submission of the claim on appeal, a period of more than 35 years. The examiner opined that the Veteran's current left hand disorders, other than foreign bodies at the base of the thumb, are consistent with the aging process. In particular, the examiner noted that the Veteran had generalized DJD bilaterally, and had thickened fascia (Dupuytren's contracture) in both hands even though the left hand had embedded foreign bodies. The unfavorable VA opinion is more persuasive than the Veteran's lay report of continuity of symptoms. Although the Veteran reported that he had left hand pain chronically and continuously after his accident, the medical evidence establishes that the Veteran’s DJD and Dupuytren's contracture involve mainly the left ring finger and palmar crease, not the left thumb. There is no record that the Veteran sought evaluation for left hand pain during the first 35 years after his service discharge, while he was working in construction. Therefore, the examiner's opinion that the current left hand disorders, other than the service-connected foreign bodies in the region of the thumb, are the result of aging rather than of trauma is more consistent with the record as a whole and is more persuasive than the lay statements that there was chronicity and continuity of pain since 1968. Additionally, the examiner provider several items of medical knowledge as the bases for his rationale, raising the persuasive value of the opinion. The preponderance of the evidence is against a finding that generalized DJD of the left hand was present within one year after the Veteran's service, or is the result of an accident in service, or is aggravated by the foreign bodies in the left thumb for which service connection has been granted. Thus, the criteria for service connection for arthritis of the left hand are not met, nor may arthritis be presumed related to service, since there is no evidence that DJD was present within one year following service, given the lesser probative value assigned to the Veteran's report of chronicity and continuity of pain from 1968 to the present as compared to the examiner’s objective findings that the generalized DJD is about the same in both hands and is less than likely due to an injury in service. The evidence also preponderates against a finding that Dupuytren's contracture was incurred during or as a result of an accident in service, or was aggravated as a result of service. The Veteran has not provided lay evidence that he had a contracture of the left hand chronically or continuously since service. Dupuytren's contracture is not defined by statute or regulation as a chronic disease for which a presumption of service connection is applicable if shown within a specified time following service. The medical evidence is unfavorable to a claim on the basis that the service-connected foreign bodies in the left hand at the base of the thumb aggravate, that is permanently increase the pathology or symptomatology, of Dupuytren's contracture or DJD. The preponderance of the evidence is against the claim for service connection for a disorder of the left hand, other than foreign bodies in the region of the base of the thumb, to include DJD or Dupuytren's contracture, on each basis authorized by law. The claim must be denied. ORDER The portion of an April 26, 2013 Board decision that denied entitlement to service connection for a disorder of the left hand other than foreign bodies, left hand/thumb, to include DJD or Dupuytren's contracture, is vacated. The appeal for service connection for a disorder of the left hand other than foreign bodies, left hand/thumb, to include DJD or Dupuytren's contracture, is denied. REMAND In its 2010 and 2011 Remands, the Board directed further development of the Veteran's claim for service connection for a disorder of the right hand, including degenerative joint disease, and including as secondary to a service-connected postoperative right femur fracture, with right knee disability. Medical opinion was obtained, including opinion as to the etiology of disorders of the right hand, in a July 2011 addendum. However, there is no record that the Veteran was notified of a decision regarding the claim for service connection for a disorder of the right hand after that claim was readjudicated. In its April 2013 Decision and Remand, the Board directed that the Veteran be notified of the decision regarding the claim for service connection for disorders of the right hand. The Veteran was notified, but some of the notifications were not provided to his representative. The Veteran’s representative should be provided with appropriate notifications regarding the appeal for service connection for a disorder of the right hand. The Veteran requested a Videoconference hearing when he submitted the substantive appeal for TDIU benefits in June 2013. The Veteran is entitled to a hearing on this issue, as the claim for TDIU was not on appeal and was not addressed at the time of the 2009 hearing before the Board by Videoconference. The June 2013 substantive appeal does not raise any indication that the Veteran seeks an additional hearing regarding the claim for service connection for a right hand disorder, as he testified regarding that claim at the 2009 hearing. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Afford the Veteran an opportunity to submit or identify any evidence, clinical or non-clinical, that may be relevant to the remaining claims on appeal, to include evidence that he applied for or receives disability benefits, or clinical records of treatment of the right hand, or evidence related to the severity of his service-connected disabilities or the effect of those disabilities on employability. 2. Obtain updated VA clinical records and associate any VA records not already available for appellate review with the claims file or electronic file. 3. If the Veteran submits additional evidence as to a right hand disorder, or VA clinical records disclose treatment of a disorder of the right hand, consider requesting an addendum from the examiner who provided prior examination of the Veteran's hands, or VA examination, if necessary in light of the additional evidence. 4. After all necessary development has been conducted, and all evidence obtained on Remand has been obtained, readjudicate the claim for service connection for a right hand disorder. Notify the Veteran, and his representative, of the determination. 5. Schedule the Veteran for a videoconference hearing at the RO regarding entitlement to TDIU. The Veteran should be notified of the date, time and place of such a hearing by letter mailed to his current address of record, with a copy of the notice letter sent to his representative. The Veterans Law Judge who conducts the hearing should be advised that TDIU is the only issue to be addressed as the hearing. While there is yet a final decision on the issue of service connection for a right hand disorder, the Veteran already received a hearing thereof. Following the hearing, or if the Veteran fails to report for or cancels the hearing, the case should be returned to the Board for further appellate review. 6. Review the Veteran's claims file and any new information obtained to ensure that the foregoing development action has been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. Thereafter, readjudicate each claim remaining on appeal, including adjudication of the claim for TDIU on a schedular basis, and on an extra-schedular basis, if the claim is not granted. 7. If an appealed claim is not granted to the Veteran's satisfaction, send him and his representative an SSOC that includes a summary of the evidence and discussion of all pertinent regulations. The Veteran and his representative should be given an opportunity to respond before returning the claims file 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans’ Appeals - 18 – Citation Nr: 1314023 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-00 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right hand disorder, including degenerative joint disease, and including as secondary to a service-connected postoperative right femur fracture, with right knee disability. 2. Entitlement to service connection for a left hand disorder, other than foreign bodies at the base of the thumb, including degenerative joint disease and Dupuytren's contracture, and including as secondary to a service-connected postoperative right femur fracture, with right knee disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active duty service from September 1966 until August 1970. This matter originally came before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board Remanded the appeal in February 2010 and in April 2011. At the time of the April 2011 Remand, all issues other than the three claims listed on the title page of this decision were addressed in a final decision. No aspect of any claim other than the three claims listed on the title page is before the Board for appellate review at this time. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing held at the RO, via videoconference, in March 2009. The claim for service connection for a disorder of the right hand and the claim for TDIU benefits are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the medical evidence establishes that degenerative disease of the left hand and Dupuytren's contracture of the left hand are unrelated to an accident incurred in service or the Veteran's service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for degenerative disease of the left hand and Dupuytren's contracture of the left hand are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a left hand disorder other than foreign bodies at the base of the left thumb. Before assessing the merits of the appeal, VA's duties to the claimant must be examined. VA's duties to the claimant The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties 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, 3.326(a) (2012). Duty to Notify Under the VCAA, VA has a duty to 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 in accordance with 38 C.F.R. § 3.159(b)(1). 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 claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify the Veteran of the criteria for service connection was satisfied by way of an initial letter sent to the Veteran in August 2006. The letter specifically addressed the criteria for service connection, and the letter included information complying with Dingess. Additionally, the Board's February 2010 Remand and letters issued following that Remand provided additional information to the Veteran regarding the evidence required to establish service connection for left hand disorder. The Veteran does not allege that he has been prejudiced by any lack of notice. No defect in notice is apparent from the record. In this case, the Veteran received pre-adjudicative notice and numerous post-adjudicative notices followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran testified at a hearing before the undersigned in March 2009. At that time, the Board member discussed with the Veteran the Veteran's belief that his disorders of the hands bilaterally were due to the accident in service. The Veteran was advised that there was no dispute that he sustained an accident in service, and that the additional evidence required was medical evidence and opinion to substantiate the claim. Transcript (Tr.) March 2009 Videoconference hearing at 18-22. The Veteran requested additional VA examination. The Veteran's discussion of the evidence at the hearing before the Board demonstrates that the Veteran understood what evidence was necessary to substantiate his claims regarding the left hand. 38 C.F.R. § 3.103 (2012); Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010). In any event, as noted above, additional notice was issued following the Board's 2010 and 2011 Remands. If any notice deficiency remained following the Veteran's hearing, that deficiency was addressed in the post-hearing communications to the Veteran. The Board finds that any prejudice due to an error in notice has been overcome in this case by the complete development conducted following the 2010 and 2011 Board Remands. The record demonstrates that the Veteran has actual knowledge of the evidence required to substantiate the claim at issue. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Duty to Assist Next, VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records were obtained prior to the Board 2010 Decision and Remand. VA treatment records have been obtained. VA examinations of the hands were obtained, with the most recent examination conducted in July 2011. The evidence of record is voluminous. As the Veteran has not identified any additional evidence regarding treatment of the left hand, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claim for service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. In a recent decision, the Court of Appeals for the Federal Circuit (Federal Circuit) has clarified the interpretation of the methods of establishing service connection under 38 C.F.R. § 3.303. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The criteria for service connection under § 3.303(a) are satisfied, according to the Federal Circuit, when a three-element test is met. The evidence must establish (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 (the so-called "nexus" requirement). Subsection (a) also refers to "each disabling condition...for which [a Veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Id. If a Veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the Veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the Veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Id. The second way to establish service connection set forth in § 3.303(b) is restricted to chronic diseases defined as such by VA regulation. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and the Veteran's service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. The Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed § 3.309(a) regardless of the point in time when a Veteran's chronic disease is either shown or noted. Id. Under 38 U.S.C.A. § 1101, arthritis, also called degenerative joint disease (DJD), is defined as a chronic disease. Thus, arthritis may be presumed to have been incurred in service, if manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may also be established for arthritis of the left hand in this case if there is proven continuity of symptomatology. Service connection may also be granted when a claimed disability is found to be proximately due to or the result of (secondary to) a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Aggravation is defined for purposes of Veterans' benefits as a permanent worsening of the underlying condition; a temporary flare-up of symptoms, alone, does not constitute aggravation. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible). Facts and analysis The Veteran was injured in a motorcycle accident during his service, in 1968, when he was hit by a driver who was charged with driving while intoxicated. The Veteran incurred a fracture of the right femur which required internal fixation; the internal fixation devise was later removed. The Veteran had surgical treatment of the right foot as well. The Veteran's right hip, left foot, and right knee were also injured. The Veteran first sought service connection for the residuals of his in-service accident in 2006. He has been granted service connection for the residuals of right femur fracture, degenerative joint disease (DJD), right hip, for disabilities of each foot, and for scars. By a rating decision issued December 2012, service connection was granted for status post left hand/thumb foreign bodies. The Veteran contends that he is entitled to service connection for DJD of the left hand and a contracture of the left hand. The examiner who conducted January 2007 VA examination determined that the Veteran had DJD, left hand, Peyronie's disease, and that foreign bodies were shown at the base of the left thumb. However, the examiner did not provide an opinion as to whether the three diagnosed disorders of the left hand were or were not related to the Veteran's service. For information only, the Board notes that Peyronie's disease is a painful fibrous curvature affecting the penis. Dorland's Illustrated Medical Dictionary 548 (31st ed. 2007). Following the Board's 2010 Remand, the Veteran was afforded VA examination of the left hand. At that time, the examiner noted the Veteran's report that his left hand was more painful than his right hand. The Veteran reported pain in the knuckles, thickening in the palms of both hands. He could not recall the date of onset of the problems. The examiner concluded that the Veteran had degenerative joint disease in the left hand, but that this disorder was unrelated to the accident in service or to injuries incurred in service or any other incident of the Veteran's service. As the Board noted in its 2011 Remand, the examiner did not discuss the findings of the radiologic examination of the left hand conducted in 2007. The examiner who conducted the 2010 VA examination provided an addendum in July 2011. The examiner stated that the foreign objects in the left thumb region were due to an injury, which, historically, was likely related to the accident in service, even though there was no scar. However, the examiner opined, the Dupuytren's contracture and the degenerative joint disease of the left hand were unrelated to the accident or any specific incident. Rather, the examiner opined, the DJD of the hand was a result of the aging process. The examiner explained that the widespread changes in the hands were not localized and therefore could not be related to a specific injury. The examiner also explained that the Dupuytren's contracture of the left hand was a degenerative change process, and that Dupuytren's contracture is not due to trauma, and was not due to a specific injury. The Board notes that Dupuytren's contracture is defined as a disease of the palmar fascia resulting in flexion contracture of a finger or digit of the hand caused by shortening, thickening, and fibrosis of the palmar fascia. Dorland's Illustrated Medical Dictionary 416 (31st ed. 2007). The 2011 opinion is favorable to the claim for service connection for foreign bodies at the base of the thumb. The opinion is unfavorable to service connection for any other disorder of the left hand, as the examiner found that foreign bodies did not result in atrophy of the thenar eminence or any muscle, did not result in a neurologic deficit, and opined that neither the accident nor the foreign bodies caused DJD or Dupuytren's contracture of the left hand. The record reflects that the Veteran worked as a self-employed contractor and in construction following his 1970 service discharge through the date of submission of the claim on appeal, a period of more than 35 years. The examiner opined that the Veteran's current left hand disorders, other than foreign bodies at the base of the thumb, are consistent with the aging process. In particular, the examiner noted that the Veteran had generalized DJD bilaterally, and had thickened fascia (Dupuytren's contracture) in both hands even though the left hand had embedded foreign bodies. The only evidence favorable to the claim is the Veteran's own contention that all current disorders of the left hand began in service. However, the examiner's opinion is more persuasive than the Veteran's lay report of continuity of symptoms. Although the Veteran reported that he had left hand pain chronically and continuously after his accident, there is no record that he reported such pain in service or sought evaluation for left hand pain. The service separation examination discloses no abnormality of or complaints regarding the left hand. The Veteran does not contend that he sought medical evaluation for left hand pain proximate to his service. There is no record that the Veteran sought evaluation for left hand pain during the first 35 years after his service discharge while he was working in construction. Therefore, the examiner's opinion that the current left hand disorders, other than the service-connected foreign bodies in the region of the thumb, are the result of aging rather than of trauma is more consistent with the record as a whole and is more persuasive than the lay statements that there was chronicity and continuity of pain since 1968. Additionally, the examiner provider several items of medical knowledge as the bases for his rationale, raising the persuasive value of the opinion. The preponderance of the evidence is against a finding that generalized DJD of the left hand was present within one year after the Veteran's service or is the result of an accident in service. Thus, the criteria for service connection for arthritis of the left hand are not met, nor may arthritis be presumed related to service, since there is no evidence that DJD was present within one year following service, given the diminished probative value assigned to the Veteran's report of chronicity and continuity of pain from 1968 to the present. The evidence also preponderates against a finding that Dupuytren's contracture was incurred during or as a result of an accident in service, or aggravated as a result of service. The claim for service connection for a disorder of the left hand other than foreign bodies in the region of the base of the thumb, to include DJD or Dupuytren's contracture, must be denied. ORDER The appeal for service connection for a disorder of the left hand other than foreign bodies in the region of the base of the thumb, to include DJD or Dupuytren's contracture, is denied. REMAND In its 2010 and 2011 Remands, the Board directed further development of the Veteran's claim for service connection for a disorder of the right hand, including degenerative joint disease, and including as secondary to a service-connected postoperative right femur fracture, with right knee disability. Medical opinion was obtained, including opinion as to the etiology of disorders of the right hand, in a July 2011 addendum. However, there is no notation in the December 2012 rating decision that the appeal for service connection for a right hand disorder, including degenerative joint disease, was considered. There is no discussion of the appeal for service connection for a disorder of the right hand in a December 2012 supplemental statement of the case (SSOC), in a January 2013 SSOC, or in a February 2013 SSOC. The Veteran is entitled to notice of a decision regarding the appeal for service connection for a disorder of the right hand. The claim must be Remanded. The Board directed further development of the claim for TDIU. Such development should be conducted. Stegall v. West, 11 Vet. App. 268 (1998) (substantial compliance with Remand instructions required). The Veteran has indicated that he receives benefits from the Social Security Administration (SSA) based on his age, but had not indicated if he has any evidence of application for any benefits based on disability from a source other than SSA. Afford the Veteran an opportunity to provide such evidence, or any other evidence that he is unable to work as a result of his service-connected disabilities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Afford the Veteran an opportunity to submit or identify any evidence that he has applied for disability benefits from any source, that he has applied for but not obtained employment, or to submit or identify clinical evidence related to the severity of his service-connected disabilities or the effect of those disabilities on employability. 2. Obtain all VA clinical records since July 2011 and any other clinical evidence from public or private sources which the Veteran reasonably identifies that he otherwise does not submit. 3. If the Veteran submits additional evidence as to a right hand disorder, or VA clinical records disclose treatment of a disorder of the right hand, consider requesting an addendum from the examiner who provided prior examination of the Veteran's hands, or VA examination, if necessary in light of the additional evidence. 4. Then, review the Veteran's claims file and any new information obtained to ensure that the foregoing development action has been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. This may include obtaining any additional VA examinations or opinions. If further action is required, it should be undertaken prior to further adjudication of the claim. 5. Thereafter, readjudicate each claim on appeal, including adjudication of the claim for TDIU on a schedular basis under 38 C.F.R. § 4.16(a), and if not granted on that basis, consider an extra-schedular basis under 38 C.F.R. § 4.16(b). If either claim is not granted to the Veteran's satisfaction, send him and his representative an SSOC that includes a summary of the evidence and discussion of all pertinent regulations. The Veteran and his representative should be given an opportunity to respond to the SSOC before returning the claims file 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs