Citation Nr: 1331661	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  10-48 317	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1. Entitlement to service connection for left hand arthritis, including secondary to service-connected residuals of a fracture of the left distal radius (left wrist).

2. Entitlement to service connection for Type II Diabetes Mellitus, including due to exposure to Agent Orange.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran-Appellant


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty from April 1967 to November 1968.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2011, in support of his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, in other words, at a Travel Board hearing.  During the hearing he withdrew another claim he also had appealed, for service connection for pruritis of his right thigh.  See 38 C.F.R. § 20.204 (2013).  The Board sent him a letter in August 2011 regrettably advising him that, because of technical difficulties, the tape at his hearing did not record, therefore not allowing for a written transcript of the proceeding to be made.  Consequently, he was given the opportunity to have another hearing, but in his response later in August 2011 he indicated he did not want another hearing, preferring instead to have his case considered based on the existing evidence of record.

In this decision the Board is granting his claim of entitlement to service connection for left hand arthritis.  However, his remaining claim of entitlement to service connection for Type II Diabetes Mellitus requires further development before being decided on appeal, so the Board is remanding this other claim to the RO via the Appeals Management Center (AMC) in Washington, DC.



FINDING OF FACT

The Veteran has arthritis of his left hand that cannot be disassociated from his military service, including from the fracture of his left wrist in service.


CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, his left hand arthritis was directly incurred in service, may be presumed to have been, or is proximately due to, the result of, or aggravated by the service-connected residuals of his left wrist fracture.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits upon receipt of a complete or substantially complete application.  The VCAA was codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126, and the implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326.

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on the claimant's behalf.  A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the so-called "fourth" requirement that VA specifically request the claimant to provide any evidence in his personal possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 C.F.R. § 3.159(b)(1) (2013).

Here, since the Board is granting this claim of entitlement to service connection for left hand arthritis, there is no need to discuss whether there has been compliance with the VCAA's duty-to-notify-and-assist obligations because even if the Board was to assume, for the sake of argument, there has not been, this still would be inconsequential and, therefore, at most amount to nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102 (2013).  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Service connection is granted for disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013).  Service connection may be granted for a disease diagnosed after discharge, if the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).

Service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen  v. Principi, 16 Vet. App. 110, 111 (2002).

Certain diseases are considered chronic, per se, including arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).


Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  In this circumstance, a showing of continuity of symptomatology since service is required to support the claim to link the currently-claimed disability back to service.  38 C.F.R. § 3.303(b).  The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as an alternative means of establishing the required linkage or correlation between the currently-claimed disability and service is limited to cases where the condition claimed is one of the specific "chronic" diseases indicated in 38 C.F.R. § 3.309(a).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b).  See also Allen v. Brown, 7 Vet. App. 439 (1995).

The determination as to whether these requirements for service connection are met is based on an analysis of all of the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to in turn determine its ultimate probative value in relation to other relevant evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

The Veteran's service treatment records (STRs) reflect a June 1968 injury, namely, a fracture of his left distal radius, i.e., left wrist, albeit with minimal joint surface involvement.  A cast was applied to allow the fracture to heal.  He also received a temporary light duty profile.  The report of his subsequent November 1968 military separation examination made no reference to that injury or any residuals, including as specifically concerning his left hand.

The report of a March 1994 VA Compensation and Pension examination of his left hand, thumb and fingers, however, indicates his mention of a fractured distal radius in service causing numbness of his fingers.  He explained that, while serving aboard a ship in 1968, a heavy box fell on his wrist.  The wrist was fractured and placed in a cast.  It recovered well, but for the past 10 years he had been having some pain in this wrist on physical activity involving weight-bearing and lifting.  As for the reported numbness of his fingers, for the past 5 to 10 years he had noticed that whenever he slept at night or whenever he fell asleep in a chair there was a temporary numbness of the fingers of his left hand, which went away once he got up and moved around.  There was now pain on hyperextension of the wrist on the left side.  He also had pain in his hands about once a week or more often if he did more strenuous physical work.  The numbness was noticeable about once a week.  An objective physical examination was performed, during which there was no loss of tactile sensation in any of the fingers on either hand.  The Veteran emphasized this symptom generally occurred after sleep and when he got up in the morning, and disappeared on activity.  The diagnosis was fracture left distal radius, well healed, and periodic numbness of fingers of the left hand by history, unilateral only.

When reexamined by VA in June 1998, the Veteran's primary complaint was numbness of the dorsal aspect of his left hand.  An objective physical examination of his left wrist and hand revealed no visible abnormalities.  There was no evidence of muscle atrophy, but there appeared to be a slight decrease in the perception of pinprick on the dorsal aspect of the left hand as compared with the right.  The diagnosis was residuals of a fracture of the left distal radius with no functional deficits.  The VA examiner further commented that there was no anatomic reason for the Veteran to experience the subjective sign of some numbness in the dorsal aspect of his left hand, as compared with his right.  An electromyograph (EMG) of the left upper limb had revealed no evidence of nerve entrapment.  The Veteran had a normal grip of his left hand.  There was no evidence of muscle atrophy of this hand and no visible deformity of the left wrist.

A more recent June 2000 VA examination was limited to the left wrist, so did not involve evaluation of the left hand.

During still another VA examination in February 2002, the Veteran reported constant dorsum left wrist pain radiating to the shoulder along the extensor surface of his left forearm and arm, with pressure on dorsum mid wrist pain radiating to dorsa left fourth and fifth fingers.  Symptoms had been reportedly present since his service.  Pain worsened with what he described as hand cramping.  He denied stiffness, red hot swelling, tenderness or instability.  There was mild subjective weakness of his left hand.  Heavy lifting and cold weather precipitated increased pain.  Physical examination was generally confined to his left wrist, though it was observed that the intrinsic muscles of the hands were normal.  The diagnosis was healed distal radial metphyseal fracture, left wrist.

On VA examination in January 2007, again for the left wrist, the diagnosis was left wrist pain, and it was commented that X-ray findings would indicate that the original injury did not involve the joint itself.

Thereafter, VA examination report of February 2011 recounted that a November 2007 X-ray of the left wrist/hand had shown "[p]ersistent distal radius deformity consistent with healed prior trauma.  Deformity fifth metacarpal consistent with healed prior trauma."  A more recent X-ray had confirmed, in part, "an irregularity seen in the base of the fifth metacarpal perhaps from prior trauma."  The diagnosis was "minimal degenerative changes from prior trauma as described above."

Considering this collective body of evidence, the Board is granting this claim for service connection for left hand arthritis.  The Board is well aware of the contrary medical findings on the subject of current disability, but ultimately concludes that the claim is sufficiently grounded in supporting medical evidence, especially when resolving all reasonable doubt in the Veteran's favor.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Whereas initial assessments indicated disability limited entirely to the left wrist, the more recent assessments also verify degenerative changes beginning at the left fifth metacarpal, and therefore clearly associated with the left hand structure in service.  Moreover, all indication from the November 2007 X-ray is that these degenerative changes are indeed consistent with prior trauma, and to the Board's knowledge there is no other traumatic injury of the left hand/wrist apart from the fracture in service.  Thus, there is sufficient indication of the likelihood of a causal nexus or relationship between that injury in service and the currently-claimed disability.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating "absolute", "obvious" and "definite" causation are not required as a condition precedent to granting service connection, just instead this be an "as likely as not" proposition).  On these grounds, therefore, the Board premises a grant of service connection for left hand arthritis.


ORDER

The claim of entitlement to service connection for left hand arthritis is granted.


REMAND

The Veteran has been observed through VA outpatient treatment records to have required intermittent medication management to control his blood glucose level.  He also testified during his June 2011 hearing before the Board that he had been given a machine to test his blood glucose (sugar) level himself, and that he repeatedly had noticed readings that were "marginal."

He has never formally undergone a VA Compensation and Pension examination to conclusively determine whether he has Type II Diabetes Mellitus, much less as a result or consequence of his military service and, in particular, his alleged exposure to Agent Orange.  He indicated in his hearing testimony that he simply wants to first know whether he has Type II (adult-onset) Diabetes Mellitus, which in turn will allow for further exploration of any potential relationship or correlation between this condition and his military service, assuming it is first confirmed he has it.  He therefore needs to undergo a VA Compensation and Pension examination as part of the duty to assist him in fully developing his claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).

Accordingly, this claim is REMANDED for the following additional development and consideration:

1. First request from the New Mexico VA Healthcare System (HCS) all available medical records for the Veteran dated since March 2011, if pertaining to the evaluation and monitoring of his blood sugar level to in turn determine whether he has Type II Diabetes Mellitus.  Associate all records obtained with the physical claims file or electronic ("Virtual VA") file.

Since these additional records, assuming they exist, are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts to obtain these additional records as this VA regulation requires.  Also appropriately notify the Veteran if unable to obtain these or any other identified records.  38 C.F.R. § 3.159(e)(1).

2. Upon receipt of all additional records, schedule a VA compensation examination concerning this claim of entitlement to service connection for Type II Diabetes Mellitus.  The claims folder must be provided to and reviewed by the examiner in conjunction with this requested VA examination.  All indicated tests and studies should be performed, and all findings set forth in detail.

The VA examiner is requested to provide a conclusion in regards to one essential inquiry - that being, whether upon review of all pertinent medical history (including the VA treatment history from April 2006 suggesting abnormal glucose readings), present symptoms, and clinical findings, a confirmed diagnosis of Type II Diabetes Mellitus is warranted.  So the Board needs to know whether the Veteran has this claimed condition.

If confirmed he does, then the question becomes its etiology, especially in terms of the likelihood (very likely, as likely as not, or unlikely) it is directly related or attributable to his military service from April 1967 to November 1968 or alternatively may be presumed to have been incurred in service if it initially manifested to the required minimum compensable degree of at least 
10-percent disabling within the initial post-service year, meaning by November 1969, or is presumptively the result of exposure to Agent Orange (if said exposure is confirmed or otherwise presumed to have occurred).

3. Ensure the report of the VA compensation examination contains these necessary responses.  If not, take corrective action.  38 C.F.R. § 4.2; Stegall v. West, 11 Vet. App. 268, 271 (1998).  

4. 
Then readjudicate this claim of entitlement to service connection for Type II Diabetes Mellitus, including on the basis it is due to exposure to Agent Orange, in light of this and all other additional evidence.  If this claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the Veteran until further notice.  However, the Board takes this opportunity to advise him that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim.  His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated.  His failure to report for any scheduled examination may result in the denial of this claim.  38 C.F.R. § 3.655.

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).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs