Citation Nr: 1336341 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 07-30 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right hand disability. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1973. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in part, denied the Veteran's claims of service connection currently on appeal. In April 2011, the Board remanded this matter for further development which has been completed, and the case has been returned for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file. The issue of service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The probative evidence of record is at least in equipoise regarding whether the Veteran's residuals of right hand injury with paresthesias to thumb is related to active service. CONCLUSION OF LAW Residuals of right hand injury with paresthesias to thumb were incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating the Veteran's claim. This is so because the Board is taking action favorable to the Veteran on the issue in appellate status and a decision at this point poses no risk of prejudice to the Veteran. See e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis The Veteran essentially contends that his current right hand disability is related to service. He asserts in 1972 he slipped and fell while changing a car battery and was struck by a falling battery whereby injuring his right hand In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The record reflects that the Veteran has met Hickson element (1), current disability, as the May 2011 VA examination report shows a diagnosis of residuals of right hand injury with paresthesias to thumb. Hickson element (1) is accordingly met. With respect to element (2), in-service disease or injury, the Board notes that a review of the service treatment records is negative for any complaints or findings of a fall resulting in injury to the right hand. There are records showing injury to the left and right wrist throughout service but none of the injuries are related to the hand or a fall. However, throughout the course of the appeal both the Veteran and his wife have maintained that the Veteran injured his right hand while on active service. In this regard, they are both competent to give evidence about what they experienced; and the Veteran injuring his right hand is subject to lay observation. See e.g., Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding that the Veteran was competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). They are also credible with regard to their assertions as they have been consistent in their reports. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Therefore, Hickson element (2) is satisfied as to both knees. With respect to crucial Hickson element (3), nexus, the question presented, i.e., the relationship, if any, between the Veteran's current hand disability and his military service is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Pursuant to the Board's remand, the Veteran was afforded an examination in May 2011 and an addendum report was rendered in June 2011. Based on review of the claims folder and evaluation of the Veteran, the VA examiner opined that it was at least as likely as not that the Veteran's right hand disability was caused by or a result of his active service. In reaching this conclusion, the examiner cited to the Veteran's self-reported history as well as his own clinical experience and expertise. The Board finds this report to be probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board notes that there is no other opinion addressing the relationship between service and the current right hand disability, and certainly none that contradicts this finding. Furthermore, the opinion is consistent with the Veteran and his wife's competent and credible assertions. Affording the Veteran all benefit of the doubt, the Board finds that Hickson element (3) is met. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As all of the Hickson elements for service connection have been met, service connection for a right hand disability has been established. ORDER Service connection for residuals of right hand injury with paresthesias to thumb is granted. REMAND As to the claim for service connection for hypertension, the Board notes that pursuant to the Board's April 2011 remand an opinion was rendered by the May/June 2011 examiner. In opining that it was as likely as not that the Veteran's current hypertension was caused by or a result of service, the examiner cited to the Veteran's self-reported history and his own clinical experience and expertise. However, unlike the assertions related to the right hand disability, the Veteran's contentions regarding hypertension are not consistent with the record. The Veteran and his wife assert that onset of hypertension was during service, that his discharge was postponed until his blood pressure was controlled, and that he was started on hypertension medication during service. Review of the service treatment records do not reflect that his discharge was postponed due to hypertension. On his examination report at service discharge in September 1973, a normal blood pressure reading of 124/86 was noted. There are no elevated blood pressure readings noted during service. In its September 2013 informal hearing presentation, the Veteran's representative listed three elevated blood pressure readings purportedly from service; however review of the service treatment records are completely negative for the three readings cited by the representative. Instead, the three readings listed were actually from the May 2011 VA examination report. Additionally, that examination report shows that the Veteran was provided an additional evaluation for his spine and records show that on the following day the Veteran was put on medical hold. His discharge reports are replete with notations and evaluations related to the lumbar spine but are completely silent as to hypertension. Significantly, on the Report of Medical History at that time, the Veteran indicated no to the inquiry of having or ever having had high or low blood pressure. Based on the evidence of record, the Board finds that the opinion cited in the May/June 2011 examination reports does not adequately address the etiology of the Veteran's current hypertension. The examiner's opinion was based on a factually incorrect history provided by the Veteran. Therefore, on remand, the Veteran must be provided an additional examination to determine the etiology of his current hypertension and the examiner must provide a detailed rationale for any opinion rendered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate); see also Swann v. Brown, 5 Vet. App. 229, 233 (1993) (finding that generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. The examiner must review the claims file including a copy of this remand, and indicate on the examination report that such a review was undertaken. The examiner should conduct all necessary diagnostic testing and evaluation. The examiner must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is related to his service in the military. The requested determination should take into consideration the Veteran's medical, occupational, and recreational history prior to, during, and since his military service. The medical basis of the examiner's opinion must be fully explained with reference to pertinent evidence in the record. If an opinion cannot be provided without resorting to speculation, please indicate this in the report and set forth the reasoning for this conclusion. 2. Following completion of the above, the RO should readjudicate the issue of entitlement to service connection for hypertension. Consideration must be given to all additional evidence received since issuance of the May 2012 supplemental statement of the case. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative the appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. 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). 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs