Citation Nr: 1335530 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-28 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left hand and thumb injury with left ulnar nerve deficit. 2. Entitlement to an increased rating for duodenal ulcer, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from November 1962 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). The issue of entitlement to an increased rating for duodenal ulcer, currently evaluated as 10 percent disabling, is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The probative evidence of record does not show that a left thumb and hand injury, with diagnosed left median nerve deficit, is related to his military service. CONCLUSION OF LAW A left hand and thumb injury, with left median nerve deficit, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the issue denied herein, VA has met all statutory and regulatory notice and duty to assist provisions. 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). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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 of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Prior to initial adjudication of the Veteran's claim, the RO's May 2006 letter advised the Veteran of the foregoing elements of the notice requirements. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The May 2006 letter provided the Veteran with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. 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). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, VA outpatient treatment records, private treatment records, and Social Security Administration records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran was afforded an opportunity to testify at a November 2009 hearing before the Board. See 38 C.F.R. § 20.704 (2013). Furthermore, the Veteran was provided with a VA examination in connection with his claim for service connection for a left hand and thumb injury with left ulnar nerve deficit. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In compliance with the Board's November 2011 remand, a VA medical opinion was obtained in December 2011, as to whether the Veteran's claimed left hand and thumb injury was incurred in service, and if so, whether it was related to his service. The Board finds this VA examination adequate, as it was based upon a complete review of the Veteran's claims file, clinical examination of the Veteran, and with consideration of the Veteran's statements, and the VA examiner provided a written rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, the Board concludes that there has been substantial compliance with its November 2011 remand with respect to the issue decided herein. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Finally, 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 Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran contends that his current left hand and thumb injury, with left ulnar nerve deficit had its onset during active service. Specifically, in an October 1986 claim form, he reported that he injured his left thumb while he was stationed at Camp LeJeune, North Carolina when he went home for a weekend pass and had an accident, which injured his thumb. In a September 1999 claim form, he stated that he broke his left hand and underwent an operation at Camp LeJeune in 1963, and that he continued to have problems with his left hand and arm. In a July 2000 informal claim, he stated that he cut his left thumb and severed the tendons from his left thumb to his left index finger during service in 1963. During a January 2002 hearing before the RO, the Veteran testified that he did not injure his right thumb during service, but that he injured his left thumb during service. He explained that while home one weekend, he slipped and broke a jar, and that the glass from the jar stuck in his hand. He further testified that he had a scar on his left thumb, but not on his right thumb. He reported that the glass was removed from his thumb at a private hospital, and that stitches were removed from his thumb at Camp LeJeune or Camp Geifer. He noted that he started experiencing problems with his thumb two or three years after discharge from service. In a February 2006 claim, an August 2006 notice of disagreement, and a September 2007 substantive appeal, the Veteran reported that his left hand and thumb continued to bother him. During a November 2009 hearing before the Board, the Veteran again testified that he injured his left hand and thumb during service, that he was treated at a hospital in North Carolina and was given stitches, however, that the records from such treatment were no longer available because the hospital had closed. Service treatment records include the report of a June 1962 induction physical examination, which is negative for complaints or a diagnosis of a left hand or thumb injury or disorder. Service treatment records show that the Veteran had three sutures removed from his right thumb in January 1963, however, such records are negative for any finding of or treatment for a left hand or thumb injury. The report of a February 1966 separation physical examination indicates a right hand and thumb scar, but is negative for complaints or a diagnosis of a left hand or thumb injury or disorder. Post-service treatment records include VA outpatient treatment records dated from April 1986 through May 1986, which reflect that the Veteran developed a large lump on the thumb of his left hand, with atrophy of the hyperthenar musculature. VA records dated from February 1998 through June 2000 reveal diagnoses of and treatment for an ulnar injury with lesions on the left, an ulnar lesion on the left elbow, cubital tunnel syndrome, entrapment of the left ulnar nerve, thumb abduction, old ulnar nerve lesion with unstable thumb, and left ulnar compression syndrome. The Veteran stated that he had a history of glass laceration of the left arm in 1963, but that he was not sure of the location, and that six to seven years later he began to notice pain and weakness in the left hand. A July 1998 record reveals that an electromyography showed that left ulnar motor responses were of low amplitude and that the Veteran reported that he cut his arm near the left elbow years before. A November 1998 record shows that the Veteran underwent an exploration of the left ulnar nerve below and above the elbow. A July 1999 x-ray of the left hand was normal. An August 1999 record shows that the Veteran was provided a custom splint to improve the use of his hand and thumb. A June 2000 record reveals that the Veteran had a 2.5 centimeter laceration to the palm of his left hand. An August 2007 private medical treatment from F.M., Jr., M.D., reflects that the Veteran reported that he injured his left hand during active duty service and that his medical records note his reported history of having injured his ulnar nerve in 1963. Dr. F.M. noted that the Veteran filed a claim for disability benefits for the injury that resulted from his inservice accident, and reported that the Veteran could not use his hand because of weakness. In December 2011, the Veteran underwent a VA examination, during which he reported that he initially injured his left thumb in service in 1963, when he fell on a jar and cut his left thumb. He further reported that he was treated at an emergency room hospital, which included the removal of glass from his thumb, and stitches. Upon examination and review of the Veteran's claims files, the VA examiner diagnosed left median nerve injury just below the elbow. The examiner opined that the Veteran's current left thumb diagnosis was not caused by or a result of his active service. In providing this opinion, the examiner noted the Veteran's contentions of an injury to the left thumb during service in 1963 when he fell on a jar and cut his thumb. The examiner, however, stated that the Veteran's service treatment records document an injury to his right thumb in 1963, but that such records do not show an injury to the left thumb. He indicated that the Veteran was treated three times in January 1963 for a laceration of the right thumb with sutures. He also noted that the Veteran's separation examination notes a scar on the right thumb, but does not show a scar on the left thumb. The examiner further noted that the Veteran currently had a scar on his right thumb, but did not have a scar on his left thumb. The examiner noted that although the Veteran stated that he did not recall injuring his left forearm after service, such injury resulted in two scars of eight and four centimeters each. The examiner noted that that Veteran had surgical scars to his left elbow for median nerve repair in November 1989. He also noted that the Veteran was seen by Dr. G. in July 1999 for residual median nerve problems, and a thumb spica splint was fabricated, to provide more use of the left hand. The examiner stated that the injury to the Veteran's left mid-forearm sometime in the late 1980's or 1990's might have caused his current problems with his left hand and thumb. The examiner concluded that he did not think that the Veteran ever had an injury to his left thumb. VA outpatient treatment records dated in 2012 demonstrate the Veteran sought treatment for his left thumb and left ulnar nerve. Records show deceased sensation of the left thumb, severe atrophy of the ulnar innervated muscles, and left median neuropathy. After reviewing the evidence of record, the Board finds that service connection is not warranted for a left hand and thumb injury, with left ulnar nerve deficit. There is a currently diagnosed disorder, to include a left median nerve injury and left median neuropathy. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, there is no competent and credible evidence of record linking the Veteran's current left median nerve injury or residuals thereof, to his active service. The Board has considered the Veteran's lay statements regarding the onset of left hand or thumb disorder during active service. Such contentions with respect to left hand or thumb pain, which is capable for lay observation, are competent evidence of what he actually observed and are within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Veteran's statements regarding the onset and nature of a left hand or thumb symptoms are not consistent throughout the record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that credibility may be impeached by a showing of inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). While in service, the Veteran reported right hand or thumb problems, and service treatment records dated in January 1963 demonstrate treatment for a right thumb injury, to include sutures. The Veteran's February 1966 separation examination also reflects the a right thumb and hand scar. In this regard, the objective evidence of record does not show a left hand or thumb injury until approximately 20 years after discharge from service. The first medical evidence of record documenting the Veteran's left hand and thumb condition is post-service VA outpatient treatment records dated from April 1986 through May 1986, which reflect that the Veteran developed a large lump on the thumb of his left hand, with atrophy of the hyperthenar musculature. Moreover, with respect to the onset of symptoms, a 1998 treatment record shows he reported a history of a glass laceration to the left arm in 1963, but indicated that he later began to notice the pain and weakness in the left hand several years later. However, in a 1999 statement, he reported that he broke his left hand and underwent an operation at Camp LeJeune in 1963, and that he continued to have problems with his left hand and arm since such time. The statements made during the course of treatment are not consistent with the Veteran's lay statements made in conjunction with this appeal regarding the nature of and the onset of a left hand or thumb disorder during service. Therefore, the Board concludes that the lay statements as to the claimed onset of the left hand or thumb disorder in service are not credible. Caluza, 7 Vet. App. at 506. Post service treatment records fail to document any complaints of or treatment for a left thumb disorder for nearly 20 years after the Veteran's discharge from the service. This expansive period without complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Moreover, the probative evidence of record does not show that any current left hand and thumb disorder, with median nerve deficit, and residual neuropathy are related to his active duty service. In this regard, the December 2011 VA examiner, after examination of the Veteran, thoroughly reviewing the Veteran's claims file, and considering the Veteran's reported history and lay assertions, opined that he was unable to conclude that the Veteran's current left median nerve injury just below the elbow was related to his service. In rendering this opinion, the examiner noted the Veteran's report of an initial left thumb injury during service after cutting his thumb on a jar, as well as his report of sutures, however, he also noted the Veteran's service treatment records that show a right thumb injury during service in January 1963, which required sutures, to include his separation examination that notes a scar on the right thumb, however, does not show a scar on the left thumb. Moreover, he indicated that the Veteran currently had a scar on his right thumb, but did not have a scar on his left thumb. In this regard, he concluded that he did not think that the Veteran ever had an injury to his left thumb. The examiner noted that although the Veteran stated that he did not recall injuring his left forearm after service, such an injury resulted in two scars of eight and four centimeters each. The examiner noted that that Veteran had surgical scars to his left elbow for median nerve repair in November 1989. He also noted that the Veteran was seen by Dr. G. in July 1999 for residual median nerve problems, and a thumb spica splint was fabricated, in order to provide more use of the left hand. The examiner concluded that the injury to the Veteran's left mid-forearm that occurred sometime in the late 1980's or 1990's might have caused his current problems with his left hand. The Board accords a significant probative value to the December 2011 VA examiner's opinion because it was rendered by a physician and is supported by a well-reasoned rationale. To extent that the Veteran contends that his left median nerve injury was caused by an in-service injury, the Board finds that these statements as to medical causation are not competent evidence to establish service connection for a left hand or thumb disorder. In this regard, in certain unique instances lay testimony may be competent to establish medical etiology or nexus. See Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay statements are competent evidence regarding symptoms capable of observation and may provide sufficient support for a claim of service connection. Id.; see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, the nature or cause of a left median nerve injury is not a simple question that can be determined based on mere personal observation by a lay person. The Board therefore finds that whether the Veteran's left median nerve injury is related to or was caused by his military service does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. It is not shown otherwise that the Veteran possesses the ability, knowledge, or experience to provide such an opinion, as opposed to observed continuity-of-symptomatology. 38 C.F.R. § 3.159(a)(2); see also Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Accordingly, the Board finds that the Veteran's lay statements as to medical causation are not competent evidence to establish service connection for a left hand or thumb disorder. Only independent medical evidence may be considered to support Board findings. The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). In the absence of competent evidence of a left hand or thumb disorder in service, or competent and probative evidence of a nexus between a current left hand and thumb injury, with median nerve deficit, and his active service, service connection is not warranted for this disorder. The Board has considered the benefit of the doubt doctrine when making these findings, but as discussed above, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left hand and thumb injury with left ulnar nerve deficit. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for left hand and thumb injury, with left ulnar nerve deficit, is denied. REMAND The Veteran claims entitlement to an increased evaluation for duodenal ulcer. The most recent VA stomach examination of record is dated in February 2011. The examination report notes the Veteran's history of daily nausea, frequent vomiting several times a week, daily diarrhea. The examiner noted that the Veteran's contemporaneous VA outpatient treatment records indicate symptoms of chronic abdominal pain with occasional nausea and vomiting. With respect to such symptoms, the examiner commented that he suspected a component of irritable bowel syndrome. The examiner further noted a September 2010 record, which demonstrates a diagnosis of a small hiatal hernia, although he did not find one on clinical examination. Subsequent to the examination, however, the Veteran underwent a VA endoscopy in March 2011, which resulted in an impression of a small hiatal hernia. In addition, throughout the rating period on appeal, VA outpatient treatment records demonstrate diagnoses of gastritis and irritable bowel syndrome. In this regard, the Veteran's only service-connected digestive disability is duodenal ulcer. 38 C.F.R. § 4.114, Diagnostic Code 7305. Thus, further clarification is necessary in order to determine which symptoms are attributable to the Veteran's service-connected duodenal ulcer, as the evidence of record is insufficient for the Board to distinguish between symptoms of the service-connected duodenal ulcer and any other diagnosed digestive disorder that may be present, to include irritable bowel syndrome, gastritis, and hiatal hernia. Moreover, although a January 2012 VA outpatient treatment record indicates that the Veteran did not have a significant change in his symptoms during the past year, in an October 2012 statement, the Veteran reported that in addition to his symptoms of constant stomach pain, vomiting, and frequent episodes of diarrhea, he also had days when he could not get out of bed due to his stomach cramps. The Board finds that such statement suggests that the Veteran's ulcer disorder may have increased in severity since the aforementioned VA examination. Accordingly, the Board finds that another VA examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) In addition, the record demonstrates that the Veteran seeks ongoing treatment for his duodenal ulcer at the VA Medical Centers (VAMC) in Fayetteville, North Carolina and Durham, North Carolina. The record contains VA outpatient treatment records to September 2012; thus, VA must obtain any VA outpatient treatment records from September 2012 to the present. See 38 C.F.R. § 3.159 (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran to provide him an opportunity to identify all VA and non-VA medical providers who have treated his service-connected duodenal ulcer since September 2012. Thereafter, the RO must attempt to procure copies of all records that have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain and associate with the evidence of record all treatment records from VA Medical Centers located in Fayetteville, North Carolina and Durham, North Carolina from September 2012 to present. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claims; and (d) notify the Veteran that that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Upon completion of the above development, the Veteran must be afforded a VA stomach examination to determine the current severity of his service-connected duodenal ulcer. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must comment upon the presence or absence of anemia, weight loss, pain, periodic vomiting, hematemesis, and melena. The examiner must also assess the extent of the Veteran's impairment of health due to his service-connected ulcer disorder, the extent to which standard ulcer therapy alleviates pain, and assess the presence and duration of any incapacitating episodes. The examiner must attempt to distinguish symptomatology which is attributable to the Veteran's service-connected duodenal ulcer and that which is attributable to any other diagnosed digestive disorder, to include irritable bowel syndrome, gastritis, and hiatal hernia. Specifically, the examiner must address the Veteran's complaints of chronic abdominal pain, daily nausea, daily diarrhea, and weekly vomiting documented in his VA outpatient treatment records. If the examiner cannot ascribe particular symptoms to a specific diagnosis, this must be indicated. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of his claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013). Department of Veterans Affairs