Citation Nr: 1334922 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 07-20 886A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected disabilities of the left hand. 2. Entitlement to a disability rating in excess of 10 percent for residuals of a fracture of the fifth finger of the left hand. 3. Entitlement to a disability rating in excess of 10 percent for a scar graft site of the fourth finger of the left hand. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1960 to November 1964 This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2006 and October 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In the April 2006 decision, the RO denied entitlement to a disability rating in excess of 10 percent for residuals of a fracture of the left fifth finger, and granted a 10 percent disability rating for a scar graft of the left fourth finger, effective December 14, 2005. In the October 2006 decision, the RO, in relevant part, denied entitlement to service connection for a left shoulder disability. The Veteran is currently unrepresented in his appeal. Although he had sought to name a one-time agent to represent him in this matter, the RO did not accept the individual, a Ms. C.J.C., as the Veteran's representative. In July 2007, the Veteran requested a hearing before a Veteran's Law Judge (VLJ) of the Board at his local VA office; however, in April 2008, he withdrew his hearing request. Later, in May 2011, he was scheduled for a videoconference hearing before a Board VLJ to be held in June 2011. That same month, he again cancelled his scheduled hearing. Accordingly, the Veteran's request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012). The Board remanded the Veteran's claim of service connection for a left shoulder disability for further evidentiary development in August 2011 and August 2012. The issues of entitlement to increased disability ratings for residuals of a fracture of the fifth finger of the left hand, and for a scar graft site of the fourth finger of the left hand 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. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. Service connection is in effect for residuals of a fracture of the left fifth finger, and for a scar graft site of the left fourth finger. 2. The Veteran's does not have a current left shoulder disability that was incurred during or caused by his active service. 3. The Veteran's does not have a current left shoulder disability that was caused by or aggravated by his service connected fracture of the left fifth finger, or by his service-connected scar graft site of the left fourth finger. CONCLUSION OF LAW The criteria for entitlement to service connection for a left shoulder disability, to include as secondary to service-connected disabilities of the left hand, have not been met. 38 U.S.C.A. § 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. See 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on the claim by the Agency of Original Jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA requires notice of what information and evidence not previously provided, if any, that is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A June 2006 VCAA letter from the RO informed the Veteran of all elements required to substantiate his claims for service connection for a left shoulder disability, to include as secondary to service-connected disabilities of the left hand, in accordance with 38 C.F.R. § 3.159(b). This notice was also compliant with the Court's holding in Dingess. Regardless, in light of the denial of this service connection claim, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to him under the holding in Dingess. Regarding the duty to assist, the Veteran's service treatment records (STRs) and post-service treatment records, including pertinent VA and private medical records have been obtained. Although the record reveals that the Veteran is in receipt of disability benefits administered by the Social Security Administration (SSA), a copy of his SSA record has not been obtained. There is no evidence to suggest, however, that the Veteran sought SSA disability benefits based on his claimed left shoulder disability. Rather, in a June 2007 statement, it was reported that he was receiving SSA benefits for a bilateral foot disability. Indeed, the statement alleged that, as opposed to his claimed left shoulder disability, a claim for a bilateral foot condition should not have been made since he was in receipt of SSA benefits for that disability. Accordingly, there is no basis for finding that the Veteran's SSA records would be relevant to the service connection claim on appeal as there is no reason to believe that these records may give rise to pertinent information with respect to his claimed left shoulder disability; neither has the Veteran contended as much. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). Therefore, there is no duty for VA to obtain the Veteran's SSA records with respect to this appeal as they are irrelevant to the service connection claim on appeal. In addition to obtaining relevant private and VA treatment records, the Veteran was afforded relevant VA examinations in August 2011 and October 2012. Collectively, these examination reports, including most especially the October 2012 VA examination report, are responsive to the determinative questions regarding the etiology of the Veteran's claimed left shoulder disability. Accordingly, VA's duty to provide an adequate VA examination has been met. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (rev'd on other grounds by Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). The RO/AMC substantially complied with the Board's August 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the Veteran's claims in an effort to obtain an adequate medical opinion regarding the etiology of his claimed left shoulder disability, specifically with respect to the claimed secondary relationship with his service-connected left hand disabilities. The Veteran was afforded this requested VA examination in August 2012, and the examination report substantially addressed the queries put forth in the Board's remand directives. The duty to assist has, therefore, been satisfied and there is no reasonable possibility that any further notice or assistance would be reasonably likely to assist the Veteran in substantiating these claims. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Further notice or assistance is; therefore not required. II. Service Connection A. Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires 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 Walker, 701 F.3d 133. Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2013). Additionally, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2013). Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service connected. 38 C.F.R. § 3.310(b) (2013); see Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. See 38 C.F.R. § 3.310(b) (2013). In cases of aggravation of a non-service-connected disability by a service-connected disability, a claimant shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.322 (2013). VA will not concede aggravation unless there is medical evidence created prior to the aggravation or current level of disability that show a baseline of the disease prior to the aggravation. 38 C.F.R. § 3.310(b) (2013). In making all determinations, the Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). A layperson is competent to report on the onset and continuity of 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 at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (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 v, 492 F.3d at 1376-77. The Board has a duty to assess the credibility and weight of 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). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Analysis The Veteran has advanced a single theory for service connection for his claimed left shoulder disability. He contends that the left shoulder disability has developed as secondary to his service-connected disabilities of the left hand that originated as a result of an in-service accident where his left hand was injured by a truck tail gate, resulting in a crushed left fifth finger. He has specifically contended that his left shoulder disability resulted from inactivity due to decreased use of his left upper extremity. At the outset, the Board observes that service connection has been in effect for residuals of a fracture of the left fifth finger and for scarring at the graft site of the fourth left finger since March 1967. During the pendency of the Veteran's appeal, service connection has also been granted for residuals scars from a skin graft of the left forearm, effective July 18, 2007. Considering then the current disability requirement for service connection for a left shoulder disability, during the Veteran's recent October 2012 VA examination his left shoulder diagnoses included degenerative joint disease of the left shoulder and tendonitis. Accordingly, the current disability requirement for the Veteran's claimed left shoulder disability has clearly been met. Based on the foregoing, the Board is only left to consider whether there is a nexus between the Veteran's current left shoulder disabilities and his service-connected left hand disabilities. A review of post-service treatment records reveals a lack of evidence of treatment for a left shoulder disability since the time of the Veteran's separation from service. Additionally, the Veteran's contentions regarding the onset of his left shoulder disability are somewhat inconsistent. In his aforementioned June 2007 statement, the Veteran contended that his left shoulder pain had an onset after his service-connected injury but while he was being treated for gangrene. Apparently, the symptoms included left hand pain radiating to his left shoulder. The symptoms reportedly were undiagnosed because the Veteran did not mention his pain to medical staff in fear of prolonging his hospitalization. Additionally, the symptoms allegedly resulted in the Veteran needing to position his injured hand each night to accommodate the pain that he would anticipate in his left shoulder before going to sleep. A statement in support of the Veteran's claim was submitted by, E.G., a friend and former coworker, in October 2007. Mr. G. contended in the statement that the Veteran told him that he had pain in his left shoulder that radiated from his left hand. Later, in an October 2007 statement, the Veteran, and presumably his one-time intended representative, C.J.C., conceded that there was insufficient evidence to pursue service connection claims for a left shoulder disability and for a bilateral foot disability. In a June 2008 statement, the Veteran's one-time intended representative conceded that the Veteran's left shoulder and bilateral foot disability claims were not legitimate claims, but were raised inadvertently as a result of questions raised by the Veteran's former representative. The Veteran was afforded a VA examination with respect to his left shoulder claim in August 2011. The VA examiner diagnosed left shoulder tendonitis. After reviewing the record and examining the Veteran, the VA examiner concluded that he could not resolve whether it was at least as likely as not that the Veteran's current left shoulder disability was caused or worsened beyond its natural course of the disease process by his service-connected residuals of a left hand crush injury without resorting to mere speculation. The examiner noted that the Veteran's left hand injury took place approximately 50 years earlier, and the Veteran reported that his left shoulder pain began approximately 10 years earlier. Further, he reported that he did not complain of left shoulder pain to his doctor throughout his medical history. Thus there was no documentation of left shoulder pain in his treatment records. Unfortunately, the VA examiner did not indicate why an opinion regarding the etiology of the Veteran's left shoulder disability could not be provided. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, it must be clear that the procurable and assembled data was fully considered and the examiner must explain the basis for such an opinion). Accordingly, the examiner's opinion is rendered inadequate with respect to the determinative issue of the etiology of the Veteran's claimed left shoulder disability. Following the Board's August 2012 remand, the Veteran was afforded a new VA examination of his left shoulder in October 2012. The Veteran reported to the examiner that he had been having left shoulder problems since the 1970s. He reported that although he did not have a left shoulder injury during service, he suffered an injury to his left hand, resulting in permanent disability. He attributed the onset of his left shoulder disability to inactivity because of less use of his left upper extremity. He reported that the left shoulder injury never resolved. After reviewing the claims file and examining the Veteran, the VA examiner provided the opinion that it was less likely than not any current left shoulder disability, to include tendonitis and radiculopathy, was caused or worsened beyond the natural course of the disease process by his service-connected residuals of a left hand crush injury, to include the skin graft residuals on the left fourth finger and forearm, and the loss of use of the fifth left finger. The examiner rationalized this opinion by noting that a distal left hand injury is mechanically and pathophysiologically unlikely to result in a proximal left shoulder tendinopathy condition or a radiculopathy condition. Although the Veteran contended that his left shoulder disability resulted from using the left upper extremity less than the right because of his in-service left hand injury, especially since he is left-handed, the examiner noted that many people use their left upper extremity less than the right, because they are right-handed, without causing left shoulder conditions. The examiner further noted that although persons do develop limited ranges of motion of joints as a result of muscle retraction from immobilizations, this was not so in the Veteran's case because, despite his left hand injury, his left shoulder had not been immobilized. The examiner further provided an alternate etiology for the Veteran's left shoulder disability. Specifically, the examiner indicated that the Veteran's current left shoulder condition was more likely than not the result of significant osteoarthritis as such was demonstrated in his current imaging study. The osteoarthritis itself was likely secondary to aging microtrauma, and/or trauma over a period of years. The foregoing October 2012 VA examiner's was fully informed, fully articulated, and well-reasoned. See Nieves-Rodriguez, 22 Vet. App. at 304. The examiner was fully aware of the Veteran's medical history regarding his left hand injury and his reported left shoulder condition, and based on thorough review of the record as well as current examination of the Veteran, the examiner provided the opinion that the Veteran's diagnosed left shoulder disability was not as likely as not the result of his in-service left hand injury. Moreover, the medical opinion thoroughly considered the Veteran's contentions and concluded that his current left shoulder condition was the result of osteoarthritis brought on by aging, or trauma over a period of years. Accordingly, based on the evidence of record, the Board cannot make a finding that a nexus exists between any currently diagnosed left shoulder disability and the Veteran's service-connected left hand disabilities. Although the Veteran has expressed his opinion that his left shoulder disability resulted from his service-connected left hand disabilities, as a result of using his left upper extremity less than before, he lacks the requisite medical expertise. Therefore, his opinions do not constitute competent evidence regarding the etiology of diagnosed disabilities of his left shoulder. See Jandreau v, 492 F.3d at 1376-77. The Board additionally finds that service connection on a direct basis is not warranted in the Veteran's case. Notably, the records surrounding his in-service accident do not contain any reference to a left shoulder disability, and there is no additional evidence of record showing that the Veteran's in-service injury to his left hand also resulted in direct injury to his left shoulder. Rather, the Veteran reported during his October 2012 VA examination, and has reported fairly consistently in the record, that he did not injure his shoulder during service. Even when the Veteran has alleged a closer association between his claimed left shoulder disability and his service, he has still attributed the shoulder condition to his service-connected left hand injuries. As such, the only real contention raised by the Veteran is that his left shoulder disability developed as secondary to his service-connected left hand injuries. Based on this record, the Board finds that the preponderance of the evidence is against a finding that any diagnosed left shoulder disability was incurred during or directly as a result of the Veteran's service. In sum, there is no competent evidence linking any currently diagnosed left shoulder disability to the Veteran's military service, to include by means of the service-connected disabilities affecting his left hand and lower arm. Absent such competent evidence, the Board finds that the preponderance of the evidence is against this service connection claim. Reasonable doubt does not arise and the claim for service connection for a left shoulder disability must be denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for a left shoulder disability is denied. REMAND The Veteran's remaining claims on appeal are those of entitlement to increased disability ratings for residuals of a fracture of the fifth finger of the left hand, and for a scar graft site of the fourth finger of the left hand. The Veteran initiated an appeal with respect to these remaining claims by filing a timely notice of disagreement with the April 2006 rating decision in January 2007. These claims have remained on appeal since that time. Although the Veteran's contentions have somewhat evolved over the last several years, he has fairly consistently claimed that in addition to the graft site described on the left fourth digit, grafting was also necessary on the left fifth digit. See July 2007 VA Form 9 (wherein Veteran raised contention that skin graph was taken with hair present and applied to fifth digit). Thus, his reports can be interpreted as a contention that the rated area for the graft site of the fourth digit should be extended to consider the graft site on the left fifth digit as well. Notably, the February 2006 and September 2010 VA examination reports only identified a scar of the left fourth digit, and scars of the left forearm, respectively. They did not also consider the Veteran's contention that he also had scarring present on the left fifth digit. Thus, VA examination is warranted to consider the Veteran's contentions that a graft site is also present on the fifth digit. The Veteran has additionally contended that his service-connected residuals of a fracture of the left fifth finger are worse than currently rated. Specifically, he has contended that his crush injury also resulted in nerve impairment. See January 2007 statement (disfigurement resembles claw, and also resulted in pain and numbness in arm). Thus, a contemporaneous examination of the residuals of the fracture of the Veteran's left fifth digit is warranted to also consider any nerve involvement. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination of his service-connected residuals of a fracture of the left fifth finger, and associated scar graft sites of the left fourth and fifth digits. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies and tests should be conducted. The examiner should identify the current severity and all manifestations attributable to the Veteran's service-connected residuals of a fracture of the left fifth finger, and associated scar graft sites of the fourth and fifth digits. With regard to any residual neurological disability resulting from the crush injury, the specific nerve(s) affected should be specified, together with the degree of impairment caused by the service-connected disability (e.g. mild, moderate, or severe). With respect to scars, describe, in detail, all objective findings for any residual scars associated with graft sites of the Veteran's left fourth and fifth digits, including the size and location (including distance between scars), and whether they are superficial (not associated with underlying soft tissue damage) or deep (associated with underlying soft tissue damage); cause limitation of motion; are unstable (has frequent loss of covering of skin over the scar); and/or are painful on examination. The examiner should also indicate whether any scar causes any other functional limitation of the affected part. 2. Readjudicate the Veteran's increased rating claims on appeal. If the full benefits sought on appeal are not granted, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. The Veteran 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 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). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs