Citation Nr: 1333691 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 06-03 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for arthritis of the right hand, to include as secondary to the service-connected residuals of fracture of the fifth metacarpal of the right hand. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from April 1958 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi that denied service connection for traumatic arthritis of multiple joints. The same rating decision granted service connection for residuals of fractured metacarpal of the right hand and assigned a noncompensable rating. The Board remanded the case in December 2009 to clarify the specific joints for which the Veteran was requesting service connection, and the Veteran responded that he was seeking service connection for a bilateral knee disorder and for right hand arthritis. The Board recharacterized the issues on appeal accordingly, and in September 2011 the Board issued a decision that denied service connection for a bilateral knee disorder. Therefore, the only issue remaining before the Board is service connection for right hand arthritis. The Board remanded the issue to the RO for further development in September 2011, in May 2012 and in May 2013. The file has now been returned to the Board for further appellate review. This appeal was processed using the Veterans Benefit Management System (VBMS) paperless claims processing system. Any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Arthritis of the right hand was not shown during service or to a compensable degree within the first year after discharge from service. 2. Arthritis of the right hand is not etiologically related to service is not caused or permanently worsened by the service-connected fractured fifth metacarpal, right hand. CONCLUSION OF LAW Arthritis of the right hand was not incurred in or aggravated by service and was not proximately caused or aggravated by service-connected disability, nor may incurrence in service of arthritis of the right hand be presumed. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA must also notify the claimant that, should service connection be awarded, a disability rating and an effective date for the award of benefits will be assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran in this case was not provided fully-compliant notice prior to the May 2005 rating decision on appeal, in that he was not informed of the disability-rating and effective-date elements of a service connection claim. However, during the course of the appeal the Veteran was provided compliant notice and thereafter the RO readjudicated the claim. Where there is a timing defect in a case, VA may cure the defect through compliance via proper remedial measures, such as the issuance of compliant VCAA notice followed by readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The readjudication may come in the form of the issuance of an SOC or SSOC following the issuance of the VCAA notice. Mayfield, id.; Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). To the degree there was a timing defect in the notice provided the Veteran, such defect has been cured. In any event, the Veteran has not identified any prejudice due to error in the content or timing of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO has obtained service treatment records (STRs), disability records from the Social Security Administration (SSA) and post-service treatment records from those VA and non-VA providers the Veteran has identified as having treatment records that could be relevant to the issues on appeal. The Veteran has been advised of his entitlement to testify in a hearing before the RO and/or before the Board in support of his appeal, but he has declined such a hearing. The Board previously determined the medical opinion of record was insufficient in regard to the etiology of the Veteran's claimed right hand disorder, and remanded the case for an addendum opinion by the most recent VA examiner. The addendum opinion was provided in May 2012. The Board has reviewed the addendum opinion and finds the RO substantially complied with the Board's remand directive. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board also finds that the medical evidence of record is now sufficient for the Board to adjudicate the appeal. Neither the Veteran nor his representative has made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the Veteran in the adjudication of his appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal. Applicable Legal Principles Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Service connection may also be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). During the pendency of this claim 38 C.F.R. § 3.310 was amended effective October 10, 2006, in order to more thoroughly reflect the holding in Allen v. Brown, 7 Vet. App. 439, 448 (1995), that secondary service connection is available for chronic aggravation of a nonservice-connected disorder. Under the revised § 3.310(b) the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service- connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule of Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity due to the natural progress of the disease from the current level. Generally, when a veteran contends that a service-connected disorder has caused or aggravated a secondary disability, there must be competent medical evidence of such causation or aggravation. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Jones v. Brown, 7 Vet. App. 134 (1994). To prevail on the issue of secondary service causation, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, supra. Where a veteran served for at least 90 days during a period of war or after January 1, 1947, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d 1313, 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, id. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. 498, 511. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis Service treatment records (STRs) show the Veteran was treated for a fractured right fifth metacarpal in January 1960. No subsequent complications or treatment is noted. The Veteran had a separation examination in May 1962 in which the upper extremities were noted to be clinically "normal" on examination. The Veteran was treated at Airpark Medical Center in February 1998 for gouty arthritis in a foot. He was treated in January 2000 for bilateral knee pain, back pain and left ankle pain, which was determined be due to degenerative disc changes in the lumbar and thoracic spine and osteoarthritis of the left ankle and both knees; the clinician also noted "quite a bit of degenerative changes in the hands." In April 2004 he was characterized as having osteoarthritis in multiple joints as well as right hand paresthesias. The Veteran's Social Security Administration (SSA) disability file is of record. The medical records associated with the SSA file show complaint of right hand pain to various orthopedic consultants in 1999-2000, but nothing in the file suggests an association between current complaints and service. The Veteran was granted SSA disability in February 2000 for degeneration of the right knee. The Veteran had a VA examination in January 2005, performed by a physician who noted the Veteran had been on Social Security Administration (SSA) disability since 1999 for arthritis in the back, hands, knees and feet. The examiner noted that in service the Veteran had been treated for a fracture of the right fifth metacarpal, which was treated by a cast; he also had factures of several other bones in service. The Veteran had no right hand pain for approximately three decades, but for the last 8-10 years he experienced progressive loss of motion in the fingers of the right hand and he now wore a wrist splint to prevent the fingers from becoming numb. The Veteran complained of loss of grip strength in the right hand due to arthritis. The examiner performed a clinical examination of the right hand and noted observations in detail, including multiple X-rays of the hand that showed a well-healed fracture of the fifth metacarpal that had healed in good position and alignment; there were no arthritic changes in the adjacent joints. There was osteoarthritis involving the distal interphalangeal (DIP) and proximal interphalangeal (PIP) joints of the lateral fingers, but these were unrelated to the fracture of the fifth metacarpal, which had healed in good alignment and without arthritic change. In sum, the examiner stated the osteoarthritis in the right fingers was unrelated to the fractured fifth metacarpal and that the fractured fifth metacarpal was not causing any current disability. The examiner's final diagnosis was healed fracture of the right fifth metacarpal and osteoarthritis of the IP joints of the right hand. The Veteran had another VA examination in February 2006, also performed by a physician. The Veteran complained of numbness and tingling in the hands, and stated the hand would "go to sleep." Examination of the hands revealed palpable spurring at the PIP and DIP joints but no obvious deformity. There was stiffness in the fingers and the Veteran could not touch his palm, but this was true of both hands. X-ray revealed a little deformity at the proximal third and fifth metacarpal. The examiner's impression was old healed fracture of the right fifth metacarpal. The examiner stated that the Veteran did have arthritis in the hands and some limitation of motion, but the examiner did not believe this to be all related to the old fracture of the fifth metacarpal. The examiner noted the Veteran had similar problems in the left hand, and it made no sense from a medical standpoint that the old fracture would be the cause of his current problems. The Veteran had another VA examination in March 2010, again by a physician. The examiner noted the two previous VA examinations cited above. The Veteran stated he did not currently have much pain in the fingers of the right hand but did have some limitation of motion secondary to arthritis. Examination of the right hand showed marked arthritic changes in all the fingers with degenerative enlargement of the DIP and PIP joints of several fingers, with loss of motion. For comparative purposes, he also had significant arthritic changes in the left hand, with flexion contractures in the fingers. X-rays confirmed significant arthritic changes in both hands. The examiner's impression was healed fracture of the right fifth metacarpal and severe degenerative joint disease (DJD) of the right hand unrelated to the fifth metacarpal fracture. The examiner also stated that it was not possible to ascribe any current functional loss of the right hand to the old fifth metacarpal fracture; rather, limitation of function of the hand was due to the rather significant DJD of that hand. The Board remanded the case in September 2011 to obtain an expanded opinion by the VA examiner who had performed the examination in March 2010. The examiner was asked to determine if the Veteran had a current disability of the right hand that was being aggravated by the service-connected fractured finger. The examiner provided a compliant addendum opinion in November 2011. The examiner stated that based on review of the claims file there is no indication that the Veteran's old healed fracture of the fifth metacarpal chronically weakens or aggravates the current right hand arthritis. The examiner stated as rationale that the fracture in service healed within several weeks of the injury and has had no effect or impact on the arthritis. The Board remanded the file once again in May 2012 for addendum opinion by the VA examiner. The examiner was asked to determine the date of onset, and etiology, of the Veteran's right hand arthritis; to state whether the arthritis had its onset in service or is etiologically related to service; and, to state whether the Veteran has any diagnosed disorder that is caused or aggravated by the in-service fracture. The examiner provided a compliant addendum opinion in May 2012. The examiner stated that the Veteran's claimed right hand disability is less likely than not to be incurred in or caused by the injury or event in service. The examiner noted that VA examination in January 2005 had shown no arthritis in the fifth metacarpal and had stated an opinion that the old fifth metacarpal fracture was causing no current disability, and he also noted the VA examiner in February 2006 had found arthritis in the right hand but had doubted that such arthritis was etiologically related to the old fractured finger. The examiner also noted that he himself had performed a third examination in March 2010 and had been unable to ascribe any current functional loss to the old fractured finger, and that he himself had made essentially the same determination in November 2011. In response to the current questions posed by the Board, the VA examiner stated it was not possible to provide an exact date for the onset of the Veteran's right hand arthritis. As the Veteran had been placed on SSA disability in 1999 for arthritis in multiple joints, and as the Veteran was reported to have done well for 30 years after discharge from service, the onset of arthritis in the right hand was probably sometime in the mid-1990s, at which point the Veteran would have been in his mid-50s. The etiology of the Veteran's arthritis is age-related changes. Besides age-related changes, DJD is multi-factorial in origin and some persons are genetically predisposed or susceptible to the disease. The Veteran's right hand arthritis is NOT (emphasis in original) traumatic, nor is it related to the old fifth metacarpal fracture. The examiner noted this opinion had been previously shared by two other orthopedists. The examiner restated his previous opinion that it is not as likely as not that the Veteran's right hand arthritis had its clinical onset in service, or that it is related to any injury or incident in service to include the January 1960 hand fracture. The examiner also restated his previous opinion that it is not as likely as not that the Veteran has any diagnosed condition that is proximately due to, aggravated by or the result of the service-connected residuals of a fractured fifth metacarpal of the right hand. The file was returned to the examiner in July 2013, apparently in error. The examiner simply reiterated his comments from May 2012. Review of the evidence above shows the Veteran has diagnosed DJD of the right hand. Accordingly, the first element of service connection on either a direct or secondary basis - medical evidence of a disability - is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Where an opinion is used to link the current disability to a cause during service, a competent opinion of a medical professional is required. Caluza, 7 Vet. App. 498. The file in this case provides no medical opinion supporting a relationship between the Veteran's diagnosed DJD of the right hand and service; in fact, three different VA examining physicians have provided opinions agreeing that the Veteran's arthritis of the right hand is not etiologically related to service and is not proximately caused or aggravated by the service-connected right metacarpal fracture. Significantly, these opinions are not contradicted by any other medical opinion of record. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board specifically finds at this point that the VA examiners cited above were demonstrably fully informed of the pertinent factual premises. Taken together, the VA examiners have provided fully-articulated opinions addressing the various applicable theories of causation, and those opinions are supported by detailed clinical rationale. The reports are accordingly probative under the criteria of Nieves-Rodriguez and may be relied upon by the Board. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in addition to the medical evidence cited above the Board has carefully considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical providers and examiners. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). For conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), in this case DJD, the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Veteran has not asserted, and the evidence of record does not suggest, that he had continuous arthritis from the time of separation from service until the present. The Veteran's lay evidence in this case is offered to show that his claimed arthritis of the right hand is etiologically related to his service-connected injury. However, as noted by the VA examiner, the etiology of arthritis is multi-factorial; it is thus a complex medical question that is not within the competence of a layperson. Kahana, 24 Vet. App. 428; Jandreau, 492 F.3d 1372. Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). The competent and uncontroverted medical opinion of record clearly states that the Veteran's arthritis is not traumatic and is not related to the service-connected fracture. As noted above, the medical opinion of record states arthritis became manifest in the mid-1990s, approximately 30 years after the Veteran was discharged from service. The Board accordingly finds that presumptive service connection under the provisions of 38 C.F.R. § 3.309(a) is not applicable. Based on the evidence and analysis above, the Board has found that arthritis of the right hand was not shown during service or to a compensable degree within the first year after discharge from service; further, arthritis of the right hand is not etiologically related to service and is not caused or permanently worsened by the service-connected fractured fifth metacarpal, right hand. Accordingly, service connection on either a direct or secondary basis must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54-55. (CONTINUED ON NEXT PAGE) ( ORDER Service connection for arthritis of the right hand is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs