Citation Nr: 1331534 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-14 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a right wrist disorder, to include as secondary to a service-connected right fifth finger disorder. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant served on active duty from September 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In August 2011 and November 2012 the Board remanded this matter for further development. For the reasons discussed below, the Board finds that the RO substantially complied with the mandates of the November 2012 remand and will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has a right wrist disorder that is related to service, or caused or aggravated by service-connected right fifth finger disorder. CONCLUSION OF LAW A right wrist disorder was not incurred in, or aggravated by, active service, or caused or aggravated by a service-connected right fifth finger disorder. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a letter dated in June 2009 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman, 19 Vet. App. at 490. VA's duty to assist has been satisfied. The appellant's service treatment records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded VA examinations in August 2009, January 2010,and September 2011. He was afforded VHA opinions in January 2012 and February 2013. The Board finds that the February 2013 opinion is adequate. This opinion was rendered by a medical professional based on a review of the claims file, including the previous examination reports, clinical experience, the appellant's previous statements, and medical literature and resources. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the February 2013 opinion is adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. The opinion was completed in compliance with the November 2012 remand order. See Stegall v. West, 11 Vet. App. 268 (1998). 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 case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). Certain chronic disabilities, such as arthritis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be also granted for disability which is proximately due to, the result of, or aggravated by, a service connected disease or injury. 38 C.F.R. § 3.310 (2013). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. See Wallin v. West, 11 Vet. App. 509. 512 (1998). III. Analysis The appellant asserts that he is entitled to service connection for a right wrist disorder, to include as secondary to a service-connected right fifth finger disorder. In his April 2009 claim, he asserted that he slipped and fell while working on a plane in service, dislocating fingers on his right hand. For the reasons that follow, the Board concludes that service connection is not warranted. An August 2009 X-ray report found that the appellant had advanced bilateral degenerative changes at the joint of the scaphoid, trapezium and trapezoid bones of the right hand. A September 2011 VA examination report reflects that the appellant has right scaphotrapezium joint degenerative joint disease in the right wrist. As the appellant has a current right wrist disability, the first element of a service connection claim is met. The appellant's enlistment examination report reflects that his upper extremities were normal at the time of his entry into service. A May 1965 report of medical history indicates that the appellant denied having had a bone, joint or other deformity or the loss of an arm, leg, finger or toe. A March 1968 service treatment record noted that the appellant came to sick call with a dislocation of the small finger on the right hand. An X-ray was positive for a dislocation of the small finger. The finger was soaked in ice and wrapped with an ace bandage. The appellant's June 1969 discharge examination report indicates the appellant's upper extremities were normal and does not note any wrist problems. The first reference to a right wrist disorder is the appellant's April 2009 claim. The appellant was afforded a VA examination in August 2009. The appellant reported that he had episodes of dislocations/subluxations of the right fifth MCP joint over the last number of years. He described discomfort with repetitive activity, overuse, strain, and exposure to the cold of the right hand. An August 2009 X-ray report indicated the appellant had advanced bilateral degenerative changes at the joint of the scaphoid, trapezium, and trapezoid bones. The VA examiner found that it was at least as likely as not that the appellant's current right hand condition was due to or a result of active military duty as this was when the condition began and was first documented. The VA examiner stated that: With regard specifically to claimed "arthritis of the right hand" - this [V]eteran does demonstrate x-ray evidence of some degenerative changes consistent with "arthritis" involving the carpal bones of the hands bilaterally. Given that there were no traumatic fractures involving the right hand, and, given that the degenerative changes are seen in the carpal bones, and not in the bones and joints reportedly injured while on active military duty, and, given that the degenerative changes are bilateral and symmetrical in both hands, it is less likely as not [V]eteran's hand arthritis . . . is due to or a result of dislocation injury sustained on active military duty. Degenerative changes as noted on x-rays of the [V]eteran's hands bilaterally at least as likely as not represent effects of advancing age and his work as a carpenter over the last several years. In an August 2009 rating decision, the RO granted service connection for status post dislocation of the right 5th finger (dominant). In a September 2009 notice of disagreement, the appellant stated that he had pain in his whole hand and he believed it was related to service or his service-connected right finger condition. A January 2010 VA medical opinion reflects that the VA clinician found right hand arthritis was less likely as not caused by or a result of service-connected right fifth finger dislocation. The clinician stated that the reasoning and basis for this opinion was as previously rendered as part of the August 2009 VA examination. The clinician stated that : Given that there is no history of traumatic fractures involving the right hand, and given that the degenerative changes are seen in the carpal bones only (not in the anatomical region reportedly injured while on active military duty), and given, that the degenerative changes are symmetrical in both hands, it is less likely as not [V]eteran's hand arthritis (noted as degenerative changes of the carpal bones on x-rays) is due to or a result of dislocation injury sustained on active military duty. After the RO requested clarification, the clinician stated that, "[f]or the same reasoning and basis as already provided, [V]eteran's [degenerative joint disease] of the right wrist (claimed as "arthritis of the right hand") is not due to, or a result of, secondary to, or aggravated by" the service-connected injury of the right fifth finger. The appellant was afforded another VA examination in September 2011. The VA examiner found the appellant had right scaphotrapezium joint degenerative joint disease. The September 2011 VA examination report also noted that the appellant was "without history or current complaints of right wrist condition." The examiner found that Given that the degenerative changes are seen in the carpal bones (scaphotrapezium joint), and not in the bones and joints reportedly injured while on active military duty, and, given that the degenerative changes are bilateral and symmetrical in both hands, it is less likely as not [V]eteran's scaphotrapezium degenerative joint disease is due to or a result of dislocation injury sustained on active military duty. The examiner also noted that the degenerative changes as noted on the X-rays of the appellant's hands bilaterally at least as likely as not represented the effects of advancing age and his work as a carpenter over the last several years. The examiner opined that the right scaphotrapezium joint degenerative joint disease was less likely as not etiologically related to the appellant's active service including the in-service fall. The examiner also concluded that the right scaphotrapezium joint degenerative joint disease was less likely as not proximally due to the appellant's service-connected status post-dislocation of the right fifth finger. The examiner also noted that he could provide no evidence or basis to support that the appellant's right scaphotrapezium joint degenerative joint disease had been aggravated beyond its normal progression by the appellant's service-connected status post dislocation of the right 5th finger. In a December 2011 rating decision, the RO granted entitlement to service connection for an old nonunited fracture along the dorsal aspect of the base of the proximal phalanx of the right 5th digit, which was combined with his evaluation for status post dislocation of the right 5th finger. In a January 2012 addendum opinion, the examiner stated that there was no wrist condition that was due to, or a result of, or aggravated by injury to the right 5th finger. The VA examiner noted that if one considers the scaphotrapezium joint the "wrist," then the appellant does have a "wrist condition." However, it is less likely as not due to, a result of, or aggravated by injury to right 5th finger that occurred while on active military duty. The likely etiology of the wrist condition was the effects of advancing age and his work as a carpenter over the last several years. In a February 2013 opinion, the VA examiner opined that based on a review of the evidence of record, including previous VA examinations and evidence found in the claims file, it is less likely as not that the appellant's right wrist condition, to include scaphotrapezium degenerative joint disease (arthritis) is related to or had its onset while on active military duty. The VA examiner further opined that it was less likely as not that the appellant's right wrist condition was due to, the result of, related to, or permanently aggravated by his service-connected right fifth finger disorder. The VA examiner noted that, "the scaphotrapezium is to the radial aspect of the wrist, essentially just proximal to the right thumb, and is, therefore, not anatomically related or connected directly to the right fifth finger, which is where the [v]eteran did sustain injury, including dislocation, while on active military duty." The VA examiner also noted that "it is less likely that there has been any change in biomechanics due to his service-connected right fifth finger disorder such as to have put increased strain or undue stress upon the radial aspect of the right wrist, such as to result in any scaphotrapezium degenerative joint disease." As discussed in the November 2012 remand, the September 2011 VA examination and December 2011 and January 2012 addendums are internally inconsistent. Thus, the opinions have limited probative value. However, the Board finds that the February 2013 opinion is adequate. The VA examiner provided a thorough rationale for the opinion and based the opinion on a review of the claims file, including the medical evidence of record. Thus, the Board finds the February 2013 opinion to be highly probative. The appellant has contended that his right wrist disability is related to service and/or caused or aggravated by his service-connected right fifth finger disorder. Although a lay person may be competent to report the etiology of a disability, arthritis is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Even if the appellant were competent to provide an opinion as to the etiology of a disorder which is typically confirmed by x-rays, the Board finds that the probative value of any such opinion is outweighed by that of the February 2013 VA opinion, which was provided by a physician who has education, training and experience in evaluating the etiology of a disability. The VA examiner reviewed the appellant's claims folder and opined that it was less likely as not that the appellant's right wrist condition was related to or had its onset while on active military duty or was due to, the result of, related to, or permanently aggravated by his service-connected right fifth finger disorder. As discussed above, the VA examiner provided a thorough rationale for the opinion and the Board finds the opinion to be probative. Degenerative joint disease is listed as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309 and is presumed to have been incurred in service if manifested to a compensable degree within one year of separation. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). In this case, there is no evidence of arthritis within a year from the appellant's separation from active duty service to allow for SDC on a presumptive basis. The first diagnosis of degenerative joint disease of the right scaphotrapezium joint was in August 2009, many years following his discharge from service. The absence of any clinical evidence for decades after service weighs the evidence against a finding that the appellant's degenerative joint disease was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection is possible for certain chronic disabilities, such as arthritis, under 38 C.F.R. § 3.309(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay statements of continuous symptoms, such as those made by the Veteran, are considered to be competent evidence when describing the features or symptoms of an injury or illness. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. The appellant has asserted that he has had pain in his right hand since service, which he treated with over the counter medications. See September 2009 notice of disagreement. The appellant did not specifically assert that he has had right wrist pain since service. The September 2011 VA examination report reflects that the appellant was "without history or current complaints of right wrist condition." As the appellant has not specifically asserted that he has had complaints of right wrist pain since service, the Board finds that service connection is not warranted based on continuous symptoms since service. In sum, the post-service medical evidence of record is against a finding that the appellant is entitled to service connection for a right wrist disorder on a direct or secondary basis. The evidence shows that the first evidence of the appellant's right wrist disability was many years after his separation from service. There is no medical evidence that the appellant's right wrist disorder is related to any period of active service, including his finger injury, or caused or aggravated by his service-connected right fifth finger disorder. In the February 2013 VA opinion, which the Board finds probative, the examiner found that it was less likely as not that the appellant's right wrist condition was related to or had its onset while on active duty or that the appellant's right wrist condition was due to, the result of, related to, or permanently aggravated by his service-connected right fifth finger disorder. Although the Board has considered the appellant's assertions that he has a right wrist disability that is related to service and his service-connected right fifth finger disorder, the Board finds the February 2013 VA opinion to be more probative. The Board therefore concludes that the evidence is against a finding of a nexus between the appellant's right wrist disorder and active service. The evidence is also against a finding that the appellant's right wrist disorder was caused or aggravated by his service-connected right fifth finger disorder. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a right wrist disorder, to include as secondary to service-connected right fifth finger disorder, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs