Citation Nr: 1337006 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-21 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals of a left ankle injury. 2. Entitlement to service connection for residuals of a back injury. 3. Entitlement to service connection for a flexion deformity of left third finger with resolved chip fracture to the base of the left third phalanx (hereinafter "left third finger disability"). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service December 1963 to December 1965. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a Board hearing held in Indianapolis, Indiana (Travel Board hearing) before the undersigned Veterans Law Judge in October 2011. A transcript of the hearing is of record. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. The issue of service connection for residuals of a back injury 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. FINDINGS OF FACT 1. The Veteran sustained an injury to the left leg in active service, which resulted in a laceration and scar to the left ankle. 2. The current residuals of a left ankle, including a scar, limitation of motion and muscle spasms, were incurred in active service. 3. The Veteran sustained a left third finger injury in active service. 4. The a left third finger disability is causally related to active service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for residuals of a left ankle injury have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a left third finger disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). In the present case, the Board is granting the claims for service connection for residuals of a left ankle injury and residuals of a left third finger injury. This decision constitutes a full grant of the benefits sought on appeal with regard to these two claims; therefore, no further discussion regarding VCAA notice or assistance duties is required. Additionally, the remaining issue on appeal, entitlement to service connection for residuals of a back injury, is being remanded for further evidentiary development. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further discussed. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Service Connection for Residuals of a Left Ankle Injury The Veteran contends that service connection is warranted as he sustained a laceration on his left ankle during service, received stitches for the laceration in service, has a scar on his left ankle that is tender and painful, and has muscle spasms with the ankle causing it to sometimes give way. Specifically, at the October 2011 Board hearing, the Veteran testified that, after an aircraft crashed in Nha Trang, Vietnam, where he was stationed in 1965, and that he cut his ankle on the aircraft trying to help wounded people out of the aircraft. He reported receiving treatment from a doctor at a field hospital, who stitched up the laceration, resulting in a scar on his left ankle. The competent lay and medical evidence shows that the Veteran currently has residuals of a left ankle injury, including a scar. At the October 2011 Board hearing, the Veterans Law Judge found that the Veteran has a scar on his left ankle. At a July 1973 report of medical examination for enlistment in the Reserves, the examiner noted a small 8 millimeter raised area in the left anterior mid thigh at the site of where the Veteran reported some foreign body such as shrapnel hit him when a B-52 exploded during his service in Vietnam. There also appears to be a typographical error in the Reserves enlistment physical in that it notes a large triangular wedge scar about one and one half inches underneath the right medial ankle, with another defect a little larger than three and one half centimeters in circumference above the scar. The Veteran has consistently reported that the scar is on his left ankle, not his right ankle. Additionally, the below signed Veterans Law Judge has acknowledged the existence of a scar on the Veteran's left ankle. Thus, the reference to a scar on the right medial ankle rather than the left ankle appears to be an inadvertent error. At the October 2011 Board hearing, the Veteran reported that the scar was tender and painful and that he experiences muscle spasms in his left ankle that cause it to give way. An April 2010 VA examination report notes that the Veteran had range of motion in his left ankle of 0 degrees with pain of dorsiflexion (normally 0 to 20 degrees) and 0 to 20 degrees with pain of plantar flexion (normally 0 to 45 degrees). On the question of whether the residuals of a left ankle injury were directly incurred in service, the Board finds that the evidence is in equipoise on the question of whether the Veteran sustained a left ankle injury during service. The unfavorable evidence includes the silence in the Veteran's service treatment records with regard to treatment for the claimed left ankle injury, the December 1965 service separation physical that found the Veteran's lower extremities and skin clinically normal, and the Veteran's denial of any injuries on the December 1965 report of medical history; however, neither the December 1965 service separation physical or associated report of medical history notes that the Veteran previously received broken bones with diminished finger flexion, which is documented in the service treatment records. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). As such, the Board finds that, because the December 1965 service separation physical and associated report of medical history are based on inaccurate histories, the records are of diminished probative weight. With regard to the silence in the Veteran's service treatment records of any left ankle injury, the Board notes that, in cases involving combat, VA is prohibited from drawing an inference from silence in the service treatment records. VA's General Counsel has interpreted that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99. The determination of whether a veteran engaged in combat with the enemy necessarily must be made on a case-by-case basis, and that absence from a veteran's service records of any ordinary indicators of combat service may, in appropriate cases, support a reasonable inference that he did not engage in combat; such absence may properly be considered "negative evidence" even though it does not affirmatively show that he did not engage in combat. Id. Here, there is no indication the Veteran engaged in combat with enemy forces or that his left ankle injury occurred while in combat. The Veteran's military occupational specialty (MOS) was 56A10, Supply Handler. He was not awarded the Combat Infantryman Badge, Purple Heart Medal, or any other award typically associated with valor or heroism shown while engaged in combat with an enemy force. At an April 2011 VA posttraumatic stress disorder (PTSD) examination, the VA examiner noted that the Veteran did not have combat experience or wound sustained in combat. In light of these findings, the evidence does not demonstrate involvement or engagement in combat. See VAOPGCPREC 12-99. In cases where this inference is not prohibited, i.e., non-combat scenarios, the Board may use silence in the service treatment records as contradictory evidence, if the service treatment records are complete in relevant part and the Board makes a finding that the injury, disease, or related symptoms ordinarily would have been recorded had they occurred. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (holding that "the Board erred by treating the absence of evidence as negative evidence that a veteran's skin condition was not exceptionally repugnant, because this is not a situation where silence in the records tends to disprove the fact"); see also Fed. R. Evid. 803(7) (absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded) (cited in Buczynski). In this case, while the service treatment records appear to be complete in relevant part, the Board finds that the Veteran's left ankle injury would not necessarily have been recorded had it occurred. See Buczynski, 24 Vet. App. at 224. The Board finds that the Veteran has credibly reported that he sustained a left ankle injury assisting wounded and deceased individuals from an aircraft crash in Nha Trang, Vietnam, and that he was treated by a field doctor who stitched up the laceration on his left ankle. The Veteran has submitted an article detailing an aircraft crash in Nha Trang in August 1965 during the time that the Veteran was stationed there. The Board finds that, in the confusion of treating the injured from the aircraft crash, the stitching of the Veteran's left ankle injury may not have been recorded by the field doctor or the records may not have been associated with the Veteran's service treatment records. As such, the Board finds that the silence in the service treatment records may not be used as contradictory evidence with regard to the Veteran's claimed left ankle injury. The favorable evidence that shows a left ankle injury in service includes a July 1973 report of medical history for enlistment in the Reserves, in which the Veteran reported that, while in service, a B-52 exploded on the ground and he sustained a small injury on the left mid anterior leg. The military physician noted a small growth that occurred at the site of the left thigh injury which has persisted. In a July 1973 report of medical examination for enlistment in the Reserves, the examiner noted a small 8 millimeters raised area in the left anterior mid thigh at the site of where the Veteran reported some foreign body such as shrapnel hit him when a B-52 exploded during his service in Vietnam. As noted above, there appears to be a typographical error in the Reserves enlistment physical regarding the location of the Veteran's scar. The Veteran has consistently reported that the scar is on his left ankle, not his right ankle. Additionally, at the October 2011 Board hearing, the Veterans Law Judge found that the Veteran has a scar on his left ankle. Thus, the reference to a scar on the right medial ankle rather than the left ankle appears to be an inadvertent error. Additionally, the Veteran, as a layperson, is competent to report observable events and injuries, and visible symptoms such as a scar and, including that he sustained a laceration to the left ankle which required stitches. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board finds that the Veteran's statements are credible because the statements are internally consistent and consistent with the other evidence of record. On the question of relationship of the current residuals of a left ankle injury to service, the evidence shows that the Veteran had a left ankle injury in service, for which the Veteran received stitches during service; that he currently has a left ankle scar that is tender and painful, limitation of motion in the left ankle; and, that he has muscle spasms with the ankle causing it to sometimes give way. The Veteran's assertions of in-service onset and continued residuals are found to be competent and credible. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the current residuals of a left ankle injury were directly incurred in service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Left Third Finger Disability The Veteran contends that service connection is warranted for a left third finger disability. Specifically, at the October 2011 Board hearing, the Veteran reported that he injured his third left finger in service and it has been a problem ever since, with pain in his finger, especially when the weather changes. On his July 2011 Substantive Appeal (VA Form 9), the Veteran reported that he broke his left finger during service and then reinjured the finger while loading a ship in Vietnam. He reported falling overboard, while unloading a ship, and that a rope tangled around his wrist and hand. After a review of all the evidence of record, lay and medical, the Board finds that the Veteran had an in-service injury of a chip fracture to the base of the left third phalanx resulting in incomplete finger flexion. A September 1964 service treatment record indicates that the Veteran sustained a chip fracture to the base of the left third phalanx after falling of the back of a truck. A splint was applied to the Veteran's hand and he was placed on light duty. An October 1964 service treatment record indicates that the Veteran reinjured the hand. A December 1964 service treatment record notes that the Veteran had recurrent complaints of improper function of the left hand and noted the history of the chip fracture to the base of the left third phalanx. The record indicates that, upon examination, the Veteran had incomplete finger flexion and was unable to completely extend the fingers on the left hand. Next, the Board finds that the Veteran has a current left third finger disability. On a July 1973 report of medical history for enlistment into the Reserves, the Veteran reported fracturing several bones in the left hand while in service. At a January 2010 VA examination, the Veteran reported intermittent pain and redness in the left third fingernail caused by cold weather or bumping the fingernail. The Veteran also reported weakness and mild stiffness in the left hand. The January 2010 VA examination report notes that the Veteran has reduced range of motion and objective pain and weakness in the Veteran's left third finger. The Veteran had metacarpophalangeal joint flexion of 0 to 90 degrees (normal range 0 to 90 degrees) with no pain and no change on repetition; metacarpophalangeal joint extension of 0 to 40 degrees (normal range 0 to 45 degrees) with no pain and no change on repetition; proximal interphalangeal joint flexion of 0 to 90 degrees (normal range 0 to 110 degrees) with pain at 90 degrees and 0 to 80 degrees with repetition; and, distal (terminal) interphalangeal joint flexion of 0 to 20 (normal range 0 to 80 degrees) with pain at 20 and 0 to 10 with repetition. The Veteran was diagnosed with chip fracture to the base of the left third proximal phalanx, resolved according to current X-ray, and flexion deformity of the left third finger. The Board finds that the weight of the competent evidence demonstrates that the Veteran's current left third finger disability and symptoms are manifestations of the same disability complained of in service and are not clearly attributable to intercurrent causes. See Horowitz v. Brown, 5 Vet. App. 217 (1993) (finding that lay statements are competent on in-service symptoms and post-service symptoms of dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus that later formed the basis of diagnosis of Meniere's disease). While the December 1965 service separation physical found the Veteran's lower extremities and skin clinically normal and the Veteran denied any injuries on the December 1965 report of medical history, neither the December 1965 service separation physical or associated report of medial history notes that the Veteran previously received broken bones with diminished finger flexion, which is documented in the Veteran's service treatment records. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal, 5 Vet. App. at 461; Sklar, 5 Vet. App. 140. As such, the Board finds that, since the December 1965 service separation physical and associated report of medical history are based on inaccurate histories, the records are of diminished probative weight. As noted above, the January 2010 VA examiner diagnosed the Veteran with chip fracture to the base of the left third proximal phalanx, resolved according to current X-ray, and flexion deformity of the left third finger. The VA examiner noted that the Veteran demonstrated a problem flexing his third finger and states that this is different than his in-service left finger injury that prevented the Veteran from extending his finger fully. The VA examiner opined that determining whether the Veteran's problem flexing his third finger completely is related to his in-service injuries would require mere speculation. The January 2010 VA examiner's opinion is based on an inaccurate factual premise, i.e., that the Veteran only had problems with extension of his left third finger in-service. The December 1964 service treatment record notes that, upon examination, the Veteran had both incomplete finger flexion and was unable to completely extend the fingers on the left hand. Additionally, the law provides that service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). The VA examiner was unable to opine as to the etiology of the Veteran's left third finger disability without resorting to mere speculation. As such, the January 2010 VA opinion is not accorded probative weight. Additionally, the Veteran has offered credible and competent statements and testimony that he has experienced symptoms and limitation of motion in his left third finger and hand since service, and there is no competent or credible evidence to the contrary. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the current left third finger disability was directly incurred in service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for residuals of a left ankle injury is granted. Service connection for a left third finger disability is granted. REMAND Under the VCAA, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. Id. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). First, the Board finds that the Veteran has a current disability of degeneration of the lumbar or lumbosacral intervertebral disc with chronic low back pain as noted in the VA treatment problem lists. A January 2008 VA treatment record notes that the Veteran has some painful movement and tenderness in the lower back and that the Veteran has degenerative disc disease with chronic low back pain. Next, the Board finds that the evidence of record establishes that the Veteran sustained a back injury in service. At the October 2011 Board hearing, the Veteran testified that he hurt his back in service in early 1965 when he fell over the side of a ship and got trapped between two vessels. The Veteran reported he was given pain medications for his back. The Veteran stated that he has had trouble with his back ever since the injury in service. The Veteran also reported that he was treated for his back post service by a private doctor in 1971, but that these records could no longer be obtained. The Veteran testified that he also hurt his back in service when he was hit in the back with a shovel during a fight. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of back problems or injuries. A service personnel record notes that the Veteran was jumped in back of a service club with the word "fight" in parenthesis. The service personnel records also reflect that the Veteran received an Article 15 in June 1964 for participating in a fight. A Veteran's report of in-service symptoms is not deemed less than credible solely because there is no objective medical evidence corroborating those symptoms at the time. See Buchanan, 451 F.3d 1331. In this case, the Veteran has provided consistent statements as to the nature of his claimed in-service back injuries and the Board finds no reason to doubt the Veteran's credibility as to the reported in-service back injuries. Here there is a current diagnosis of a back disability, competent, credible evidence from the Veteran of an in-service back injury, and an allegation that the current back injury was caused by or incurred in active service. The Board finds that the evidence indicates that the Veteran's claimed back disability may be associated with service; thus, a remand is required to obtain a medical opinion regarding this claim. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. Accordingly, the issue of service connection for a back disorder is REMANDED for the following action: 1. Schedule the Veteran for a VA examination(s) to obtain an opinion as to the nature and etiology of any back disorders. The claims folder should be made available to the examiner. The examiner should diagnose all back disorders, including as based on X-ray results, and then provide an opinion as to whether it is whether it is at least as likely not (50 percent or greater likelihood) that any back disorder was incurred in or caused by the Veteran's active service. The examiner should consider as credible the reported in-service back injuries, despite the absence of contemporaneous service treatment records documenting each incident. The examiner should provide a rationale basis for all opinion expressed. 2. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). The Veteran is hereby notified that failure to attend the scheduled examination may result in the denial of his claim, pursuant to 38 C.F.R. § 3.655(b). 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. 2013). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs