Citation Nr: 1409469 Decision Date: 03/06/14 Archive Date: 03/18/14 DOCKET NO. 10-32 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a right hand disability. 2. Entitlement to an increased evaluation for tinea cruris, currently evaluated as 10 percent disabling. 3. Entitlement to a compensable evaluation for right ring finger laceration residuals. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1966. This appeal arose from July 2004 and January 2010 rating decisions of the North Little Rock, Arkansas, Department of Veterans Affairs (VA), Regional Office (RO). As to the actions appealed, the Veteran had filed a claim for service connection for a right hand disability and for an increased evaluation for his tinea cruris in December 2003. He was sent a duty to assist letter in February 2004, which was sent to an address in Forrest City, Arkansas. After determining that this was an incorrect address, another duty to assist letter was sent to an address in Brinkley, Arkansas (the address noted on his claim). On July 26, 2004, a rating action was issued that denied service connection for a right hand disability and increased evaluation for the service-connected tinea cruris; notice of these denials was sent to the Forrest City address, an apparently incorrect address. On November 9, 2009, the Veteran's representative submitted a statement which referred to the Veteran's assertion that he had never received any notice pertaining to the status of his December 2003 claim or to any decision that had been made. While the notice letter sent to the Forrest City address was not returned as undeliverable, this was clearly not the address of record. The Veteran, on his December 2003 claim, had noted that his address was in Brinkley. Significantly, the RO had acknowledged that the Forrest City address was incorrect, and had re-sent a duty to assist letter to the Brinkley address. No such corrective action was taken in regard to the notice of denial of the December 2003 claim. Therefore, because the Veteran was not properly notified of the July 2004 denial of his December 2003 claim for service connection for a right hand disability, it did not become final. As a consequence, there is no need for the Veteran to submit new and material evidence since the July 2004 decision is not final; rather, this claim will be addressed on a de novo basis, without regard to finality. The issue has also been recharacterized as noted on the title page. Moreover, because he was not notified that his December 2003 claim for an increased rating for his service-connected tinea cruris had been denied in the July 2004 rating action, the July 2004 rating action is the action appealed as to this claim as well. The issues of entitlement to increased evaluations for the service-connected tinea cruris and scar residuals on the right ring finger are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have a right hand disability (other than the right finger scar) that had its onset in service or is related to a service-connected disability. CONCLUSION OF LAW A right hand disability was not incurred or aggravated by service, nor is such a disability related to any service-connected disability. 38 U.S.C.A. §§ 1110, 1111, 1112, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The VCAA 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, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by a letter sent to the Veteran in January 2008. This correspondence advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). It also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that no VA examination of the Veteran's right hand (other than the right ring finger scar residuals) has been conducted. However, after reviewing the record, the Board finds that no such examination is needed in this case in order to render a decision. As further explained below, there is no indication that the Veteran had any right hand injury in service, save for the finger laceration, which is already service-connected. There is also no evidence of a current hand disability, nor are there complaints of persistent recurring symptoms since service (in fact, the first complaint of hand pain was made in February 2010, in conjunction with his claim for benefits). Finally, there is no indication that his recent, single complaint of pain in the right hand is in any way related to his service-connected finger laceration. Therefore, the Board concludes that there is no need for a VA examination at this time. See 38 C.F.R. § 3.159(c)(4)(i) (2013). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Applicable laws and regulations Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2013). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain chronic disorders, including arthritis, hypertension, and cardiovascular disease, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.384 (2013). For any disability which is proximately due to, or results from, another disease or injury for which service-connected has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2011). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2011); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). (This standard of assessing aggravation of disability under 38 C.F.R. § 3.310 was established in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310). Although VA indicated that the purpose of the regulation was merely to apply the Court's 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place the burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounted to a substantive change in the regulation. Because the Veteran's claims were received after the change, his claim will be adjudicated under the current version of the regulation. Factual background and analysis The Veteran has claimed that he suffered an injury to his right hand in service. He expressed his belief at his hearing that he had suffered a fracture of the finger at the same time that he lacerated his right ring finger. He indicated that he now has pain in the hand and that this is directly related to this claimed injury. The Veteran's service treatment records reflect a normal entrance examination conducted in September 1964. The clinical records make no reference to any complaints of, treatment for, or diagnosis of a right hand injury (save for the laceration), to include any fractures. The September 1966 separation examination noted no complaints about the right hand. The examination of the musculoskeletal system, to include the upper extremities, was within normal limits. The only abnormality noted was the scar on the dorsal aspect of the right ring finger. The Veteran was afforded a VA examination in December 1970. At that time, the scar on his right ring finger was noted to be barely discernible. The examiner stated that "[i]t interferes in no way with the patient's use of his hand." He further stated that "[t]his should cause the patient no difficulty ever." No complaints about the right hand were made during a February 1976 VA examination. The Veteran was reexamined by VA in January 2010. Movement of the joints of the right ring finger was normal. The examiner noted that the laceration of the finger did not interfere with joint function. A February 24, 2010 treatment record noted his complaint of sharp pain in the right hand, which he indicated had begun the week before. However, he stated at the time of being seen that the pain had somewhat improved. He described the pain as intermittent and very sharp and severe when it occurs. No diagnosis of any underlying disorder was made. At a video conference hearing conducted in May 2011, the Veteran testified that he had cut his finger in service and expressed his belief that he had also broken the finger at the same time. He indicated that the hand would get stiff and would pop and snap on movement. After a careful review of the evidence of record, the Board finds that entitlement to service connection for a right hand injury (other than the right ring finger laceration) has not been established. While the Veteran did sustain a laceration to the right ring finger in service (which is already service-connected), there is no indication of his suffering any other injury to the hand. He expressed his belief that he suffered a broken bone at the time he lacerated the finger, but this is not supported by the contemporaneous service treatment records that show no broken bones of the hand. In fact, there is no reference to any other injuries to the right hand in service. Significantly, the separation examination noted no complaints about the right hand and found that his musculoskeletal system, to include the upper extremities, was completely normal. Therefore, it cannot be found that there was any injury to the right hand in service. There is also no indication that the Veteran even has a current disability of the right hand. The VA examinations conducted in December 1970, February 1976 and January 2010 found no disability of the right hand. Rather, it was noted that function of the right hand was within normal limits, with no complaints. While the Veteran reported in February 2010 that he had intermittent severe hand pain, the clinical record found no underlying disorder and provided no diagnosis. As noted above, an essential requirement for service connection is the existence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating that service connection presupposes a current diagnosis of the condition claimed). In the absence of a current disability, there can be no valid claim. The only condition that has been noted is very recent complaints of "hand pain" with no diagnosis of an underlying disability. VA does not generally award service connection for symptoms alone, without an identified basis for those symptoms. For example, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Prnicipi, 259 F.3d 1356 (Fed. Cir. 2001). Because there is no competent and credible evidence of a current right hand disorder, the claim cannot be granted. The Veteran has also alleged that his service-connected right ring finger laceration residuals are the cause of the pain in the rest of the right hand. There is no competent evidence of record that this is the case. The VA examinations conducted in December 1970 and February 1976 were unequivocal in their findings that the finger laceration, which was barely discernible, had no affect whatever on the function of any joints on the right ring finger, let alone any other joints in the hand. The January 2010 VA examination confirmed that the finger laceration did not interfere in any way with the functioning of the right hand. The February 2010 clinical note, while noting his complaints of intermittent pain, made no reference at all to the ring finger laceration by either the Veteran or the examiner. Given the lack of functional interference resulting from the finger laceration, it cannot be found that this laceration has either caused or aggravated a condition in the remainder in the right hand. As a consequence, service connection on a secondary basis cannot be awarded. The Board has also carefully considered the statements and testimony proffered by the Veteran. 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 issues in this case, whether a diagnosed disability of the right hand exists and whether it is related to an incident of service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer). There is no indication in the record before the Board that the Veteran possesses the requisite expertise to render a diagnosis or to provide an etiological opinion. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right hand disability is denied. REMAND The Veteran has also requested that higher disability evaluations be assigned to his service-connected tinea cruris and right ring finger laceration residuals. He has claimed that the tinea cruris flares two to three times a year and that at the time of the January 2010 VA examination, he was not experiencing a flare-up. Because of this, he argues that VA does not have a clear picture of the severity of his condition. He has also stated that the laceration scar is often painful, suggesting that the condition may have worsened since the January 2010 examination. Therefore, while the delay is regrettable, the Board finds that another examination would be helpful in ascertaining the current degree of severity of these disabilities. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a complete dermatological examination of the tinea cruris and the right ring finger laceration residuals. The entire claims folder, to include a copy of this remand, must be made available to the examiner to review in conjunction with the examination, and such review must be noted in the examination report. All special studies deemed necessary must be performed. As the tinea cruris, the examiner must indicate whether 20 to 40 percent (or more) of the entire body or 20 to 40 (or more) of exposed areas are affected, or whether there is systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12 month period. If there is such systemic therapy, it should also be indicated whether there was constant, or near-constant use required over the past 12 month period. As to the right ring finger laceration residuals, the examiner must indicate whether the scar is unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, note (1) (2013). A complete rationale for all opinions must be rendered. 2. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2013). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 3. Once the above-requested development has been completed, the Veteran's claims must be readjudicated. If any part of the decision remains adverse to the Veteran, he and his representative must be provided a supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2013). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs