Citation Nr: 1337833 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-40 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right hand disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from October 1976 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2011 when it was reopened and remanded for additional development on a de novo basis. FINDING OF FACT Any right hand injury the Veteran sustained in service was acute and resolved without residual disability; a chronic right hand disorder was not manifested during the Veteran's service; and the preponderance of the evidence is against a finding that the Veteran has a residual right hand disorder which is attributable to or related to service. CONCLUSION OF LAW The Veteran does not have any residuals of a right hand injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. 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 expect 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 of the VCAA 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. In this case, the VCAA duty to notify was satisfied by way of July 2005 and July 2008 letters. The July 2005 letter was sent prior to the initial RO decision in this matter. The July 2005 letter informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The July 2008 letter provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). The appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption 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). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, service personnel records, post-service treatment records and VA examination report. As discussed above, the VCAA provisions have been considered and there was compliance with it. The Veteran was notified and aware of the evidence needed to substantiate the claim, 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 submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. 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 v. Principi, 18 Vet. App. 112, 121 (2004). Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). B. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in VA's electronic data storage system with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (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. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has a right hand disorder that is causally related to service. Service treatment records show that the Veteran was hospitalized from December 19, 1977 to December 24, 1977, for a right hand infection. The treatment included incision, drainage, and antibiotics. He was placed on temporary duty for a maximum period of 21 days. A December 29, 1977 record noted the right hand infection had resolved. On October 1979 service separation report of medical examination, the upper extremities were normal on clinical evaluation. In a January 1980 statement of medical condition, the Veteran reported that his medical condition had changed, but specifically limited his complaints to his ankle and lower back pain. Postservice VA treatment records include a March 2001 report noting the Veteran's complaint of right hand pain and numbness. A diagnosis of carpal tunnel syndrome was provided. In June 2001, the Veteran was given a splint to treat his carpal tunnel syndrome. In an August 2001 report, it was noted that the splints and pain medication the Veteran had been provided for his carpal tunnel syndrome had not provided significant relief. In October 2001, nerve conduction studies were performed which were consistent with carpal tunnel syndrome. On July 2002 VA diabetes mellitus examination, it was noted that the Veteran has bilateral carpal tunnel syndrome, right more than the left. The Veteran reported he suffered an insect bite to his right proximal thumb which became infected and required incision and drainage. He presently has some numbness in the right radial distribution of the right hand, but it was again noted he had carpal tunnel syndrome. The diagnoses included post-infected insect bite of the right hand, no residual, and bilateral carpal tunnel syndrome. The instant claim for service connection for a right hand disorder was received in March 2005. VA treatment records include February 2008 reports noting the Veteran's complaint of weakness with his grip strength in his right hand. A November 2008 report noted his complaint of weakness, tingling and numbness of both hands. It was also indicated that he had a spider bite in service. On November 2011 VA hand and finger conditions examination, it was noted the Veteran suffered an insect bite on the dorsal surface near the base of his thumb which became infected. He needed incision and drainage and admission for antibiotics. He was ultimately returned to fully duty. Since the insect bite in service, the Veteran reported he has had numbness, tingling, pain, and possible strength problems in his right hand. His treatment has included prescription medication and splints over the years. X-rays revealed sclerosis with moderately severe narrowing of the lateral radiocarpal joint, and minimal narrowing of some intercarpal joints. The diagnoses was bilateral carpal tunnel syndrome, and right hand arthritis. After a review of the claims file, the examiner opined that it was less likely than not the Veteran's right hand disorder diagnosed on examination was incurred in or caused by his claimed in-service injury. The examiner articulated that there were no residuals from the insect bite from the service treatment records, and within two weeks the infection had resolved. Moreover, the separation physical showed no chronic residuals. The examiner also opined that local skin infections do not cause arthritis or carpal tunnel syndrome. Both arthritis and carpal tunnel syndrome are due to direct trauma to the joint and nerves as well as repetitive motion injuries. The bite was not in the correct location. In addition, the Veteran's 30 years of working at the United States Postal Service is the most likely cause of his current hand conditions. On review of the evidence above, the Board notes at the outset that the Veteran is shown to have received treatment for his right hand during service in December 1977 for a right hand infection resulting from an insect bite. In addition, the evidence shows that he has complained of and received treatment for right hand carpal tunnel syndrome since 2001, and was diagnosed with right hand arthritis in 2011. However, the Board finds that a right hand disorder did not manifest during service, did not manifest to a compensable degree within the first post-service year, and is not shown to be causally or etiologically related to service. Post-service, the only evidence relating the Veteran's carpal tunnel syndrome and arthritis to service are his lay statements. The Board finds that the Veteran's more recently-reported history of continued right hand symptoms since active service is inconsistent with the other medical evidence of record. Indeed, while he now asserts that his right hand disorder began in service, in the more contemporaneous medical examination at separation, the Veteran's upper extremities were found to be normal on clinical evaluation, and in January 1980, he only reported his ankle and lower back pain had increased in severity. Inconsistencies in the record weigh against the Veteran's credibility as to the assertion of recurrence of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The medical evidence of record weighs significantly against the Veteran's lay statements. This case was reviewed by a medical examiner who was fully informed of the pertinent factual premises of the case. Additionally, the examiner provided a fully articulated opinion that included a reasoned analysis. Overall, the Board finds that the November 2011 examiner's opinion holds substantially greater probative value than the Veteran's own opinion as to the etiology of his symptoms as the examiner possesses greater training and expertise to determine the etiology of his symptoms. The examiner found that the Veteran's current carpal tunnel syndrome and arthritis were less likely than not incurred in or caused by the Veteran's right hand insect bite and infection during service as carpal tunnel syndrome and arthritis are due to direct trauma to the joint and nerves as well as repetitive motion injuries. On this basis, the examiner concluded that his 30 years of employment with the United States Postal Service was the most likely cause of his current hand conditions. As the preponderance of the evidence is against the claim that the Veteran's current right hand disorders are related to an injury, disease, or event in service, the benefit of the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for a right hand disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs