Citation Nr: 1337764 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-25 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of a right hand injury, to include arthritis. 2. Entitlement to service connection for a lower back injury, to include spondylosis and spondylolisthesis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The most probative evidence of record indicates the Veteran's current right hand disability is not related to the right hand laceration injury in service. 2. The most probative evidence of record indicates that a chronic low back disability was not shown in service or for many years thereafter, and the current low back disability is not etiologically related to service. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for a right hand disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The requirements for establishing service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a July 2010 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, VA treatment records, and VA examination reports. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence, including a lay statement, and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran seeks service connection for residuals of a right hand injury, to include arthritis and service connection for a lower back injury, to include spondylosis and spondylolisthesis. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Right Hand Service treatment records show that the Veteran was treated for a right hand injury in March 1968. The medical note from this date indicates that the Veteran's right hand was "sewed up" and that x-rays were negative. No further complaints or findings were noted. The Veteran made no mention of the hand injury on his Report of Medical History in October 1968 and clinical examination revealed no abnormalities of the hand or skin, other than a tattoo on the left shoulder. The Veteran underwent a VA examination in June 2011. The Veteran stated that he suffered a laceration to the right hand over the long finger due to a physical altercation while in service. The Veteran reported decreased strength and grip in his right hand. He also noted popping and clicking. Upon examination, all range of motion measurements for this right hand were found to be normal except for the metacarpophalangeal (MP) joint on index finger and long finger. There was no objective evidence of pain or limitation of motion found after repetitive use. Ankylosis was found in the MP joint of the right index finger. It was not found to interfere with the motion of other digits or hand function. It was also found that there was a deformity of the right index carpometacarpal joint on the right hand. No decreased strength from pushing, pulling or twisting was found. X-rays were taken at the examination and the examiner found that there was degenerative change in the hand and an expansile lesion of the proximal phalanx of the 4th finger. The Veteran was diagnosed with right hand degenerative joint disease. The examiner opined that it was less likely as not that the Veteran's hand condition, was caused by or a result of the right hand injury treated in service in 1968. The examiner's rationale noted that the Veteran's hand injury had negative x-rays in service and he was treated for lacerations without any noted residuals. The examiner stated that there was no subsequent chronic pattern of right hand complaints after the injury. The Veteran was also examined for a residual scar, but the examiner found "no objective evidence of a scar of right hand." Based on a review of the entire record, the Board finds that the most probative evidence is against the claim. While in service, the Veteran was treated for a right hand injury. The Veteran currently has a diagnosis of right hand degenerative joint disease. Thus, the question in this case is whether the current disorder is related to the injury in service. The evidence of record shows that there is no medical opinion linking the Veteran's right hand disability to service. In the June 2011 examination, the examiner opined that the Veteran's current right hand disability was less likely than not related to military service. In rendering this opinion, the VA examiner reviewed the claims file and examined the Veteran, and provided a rationale for the conclusion reached. As such, this opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). There is no medical opinion of record contrary to the VA examiner's conclusion. While the Veteran has alleged that his current right hand disability is related to service, there is no indication that he has specialized training in diagnosing hand disorders or determining their etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of a hand disability such as arthritis requires medical testing, and such disability can have many different causes, thereby requiring medical expertise to determine the etiology. As such, the Veteran's own opinions regarding the etiology of his current hand disability are not competent medical evidence. The Board accords significantly greater weight to the opinion of the VA examiner than to the Veteran's lay assertions. In summary, there was no evidence of fracture or arthritis of the right hand on x-ray in service, no residuals of the laceration treated in service were noted on the October 1968 service separation examination, and no evidence of arthritis of the right hand during the year following discharge from service. In addition, the most probative evidence of record indicates the Veteran's current right hand disability is not related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. Low Back Service treatment records reflect that the Veteran complained of low back problems after picking up heavy boxes in June 1968. The examiner assessed the Veteran with a low back strain and spasm parapinous. The Veteran's October 1968 separation examination reveals a normal spine examination. The accompanying Report of Medical History reveals the Veteran denying back trouble of any kind. does not reflect that the Veteran suffered from back trouble of any kind. Post-service VA treatment records dated in April 2010 indicate that the Veteran complained of lower back pain. The Veteran noted that his back pain was constant. The Veteran was afforded a VA spine examination in June 2011. The Veteran reported that he had injured his back moving heavy boxes in service. He stated that the pain had progressively gotten worse over the years and that it affected his current job. It was noted that the Veteran suffered from flare-ups of the lumbar spine which were severe and occurred weekly. The Veteran stated that the flare-ups would last for hours and that they would cause him to be immobile. Medication and rest alleviated the pain. There were no limitations on walking and the Veteran's gait was normal. Following examination and x-rays, the examiner diagnosed the Veteran with lumbar spondylolithesis. The examiner opined that the Veteran's current low back disability was less likely as not caused by or a result of the low back strain experienced in service. The examiner concluded that the Veteran had one incident of low back pain in June 1968 and that the separation examination was negative for any subsequent complaints. A witness statement from A. Riddle was received in November 2011. She stated that she was married to the Veteran while he was in service and observed the Veteran's experience with his low back condition. She noted that he was in extreme pain during service. She also noted she has observed the Veteran on numerous occasions complain about his back pain and that she had witnessed the Veteran unable to bear weight or ambulate due to his pain. She stated that the Veteran had gone to a private doctor after being discharged from service and that the private doctor had stated that the Veteran's x-rays showed evidence of a previous injury. In June 2012, a review of the Veteran's claims file was conducted by the June 2011 VA examiner. The examiner noted the witness statement from A. Riddle and the witness' discussion regarding the private doctor's assessment. The examiner, however, noted that the private doctor's medical treatment reports were not of record. In addition, the examiner noted that the Veteran had been diagnosed with a low back "strain" during service and that strains usually are acute and resolve after time, rest and medication for relief. The examiner opined, after a review of the claims file, that the Veteran's current spondylosis and spondylolithesis was less likely than not related to his low back strain from 1968. After a review of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back disability. The Veteran was treated for a low back strain while in service. The Board notes that Veteran currently has a diagnosed lumbar spine condition. However, there is no medical opinion linking the Veteran's back disability to service. The only medical opinion of record addressing the relationship between the current condition and service is that of the VA examiner, and such opinion is against the claim. The Board finds the VA medical opinion from June 2011 with June 2012 addendum is entitled to great probative weight. The opinion was provided following examination of the Veteran and review of the claims file, and provided an adequate rationale that considered the Veteran's in-service treatment, post service employment and the Veteran's self-reported history. See Nieves-Rodriguez, supra. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of a lumbar spine disorder falls outside the realm of common knowledge of a lay person. See Jandreau, supra. In this regard, the determining the diagnosis and etiology of spine disabilities requires medical testing and training. Thus, the Veteran and A. Riddle's opinions as to the cause of his current low back disability are not competent medical opinions. The Board accords significantly greater probative value to the opinion rendered by the VA physician than to the lay assertions of diagnosis and etiology. In summary, a chronic back disability was not shown in service or for many years thereafter and the most probative evidence indicates the current low back disability is not related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. In reaching the above conclusions with respect to both issues, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for residuals of a right hand injury, to include arthritis, is denied. Entitlement to service connection for a lower back injury, to include spondylosis and spondylolisthesis, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs