Citation Nr: 1418167 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 10-48 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for degenerative joint disease (DJD) of the right hand, claimed as metacarpophalengeal (MCP) joint degeneration and nerve damage, to include on a direct basis or as secondary to service-connected scar, status post right palmar wart removal. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to January 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA). The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDING OF FACT A right hand disability, to include mild degenerative changes, was not manifested during the Veteran's active duty service or for many years thereafter, is not otherwise related to such service, and is not causally related to or aggravated by the Veteran's service-connected scar, status post right palmar wart removal. CONCLUSION OF LAW The criteria for service connection for a right hand disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 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 expected to provide. 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all 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. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, supra; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Here, the Veteran was sent an October 2009 pre-adjudication letter that fully addressed all notice elements. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. He was sent an additional VCAA letter which met these requirements in February 2010. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c), (d) (2013). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2013). In this case, VA obtained all of the service treatment records (STRs) and identified relevant post-service VA and private treatment records. The Board further notes that the Veteran was accorded a VA medical examination in October 2009 which, as detailed below, includes opinion regarding the etiology of current right hand conditions. The examiner's opinion was not only based on review of the claims file but also on examination of the Veteran. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims file. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready for appellate consideration. Service Connection - In General Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (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) (2013). In addition, certain chronic diseases (e.g., degenerative arthritis) may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). The chronicity provisions are applicable where evidence, regardless of its date, show that a veteran had a chronic condition, as defined in 38 C.F.R. § 3.309(a), in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2013). This rule does not mean that any manifestations in service will permit service connection. To show 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 disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). The United States Court of Appeals for Veterans Claims (Court) has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Background It is the Veteran's primary assertion that he is entitled to service connection for DJD of the right hand as secondary to service-connected scar, status post right palmar wart removal. The STRs show that the Veteran had several palmar warts in the right hand scraped and cauterized. Post service VA records dated from 2001 are negative as to disability of the right hand. This includes VA examination in April 2001 at which time there were several right hand palmar scars noted, but they were not tender to palpation, had no adhesions, no keloid tissue, and were not cosmetically disfiguring. When examined by VA in June 2006, the Veteran stated that he had residual scarring and decreased range of motion (ROM) of the right hand. He was unable to open the hand completely as compared to the left hand. It felt as if the scar adhered to the tendon beneath. He felt tearing pain when attempting to stretch out the hand completely and complained of fatigue of the hand muscles when working at his job as an electronic technician. He had to switch hands when using tools or when applying a forceful grip. He complained of constant pain. Magnetic resonance imaging (MRI) of the right hand was conducted which showed DJD of the first MCP joint. The tendons and ligaments had normal signal, and the soft tissues around the wrist were normal. The DJD of the first MTP joint was not felt to be secondary to wart removal. Additional VA examination was conducted in October 2009. The claims file was reviewed. The examiner opined that DJD of the right hand was not caused by or the result of service-connected right palmar wart removal. For rationale, she explained that there was no evidence of right hand nerve damage and that the Veteran's degenerative changes were the result of the normal aging process. She further noted that the current limitation of hand strength and full hand extension were related to the scar attachment to the subcutaneous tissue and not to any other condition. She pointed out that the hand scar was service connected, and that the right hand degenerative changes were not related to the Veteran's military service period. Analysis In light of the above, a current diagnosis of right hand degenerative changes has been demonstrated. Initially, the Board observes that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Starting first with presumptive service connection, the Board notes that, although degenerative changes have been observed, there is no evidence of arthritis within one year of service. Therefore, an award of service connection on a presumptive basis for chronic disease is precluded. 38 C.F.R. §§ 3.307, 3.309 (2013). The Board will now consider a direct theory of entitlement. In this case, there is inservice evidence of right hand palmar wart removal with residual scar, for which service connection has already been granted. However, there is no medical evidence of treatment or a diagnosis of any other right hand disorder in service. Further, there is no competent medical evidence linking any additional right hand disorder to active service. While the file lacks competent evidence relating a current right hand disorder to active service, the Board notes that service connection could still be established on a direct basis upon a showing of continuity of symptomatology. On this point, the Board finds it significant that the first post-service documentation of a right hand disorder was in 2009, more than 35 years after service separation. Thus there is no supporting medical evidence of a continuity of pertinent symptomatology based on documented treatment. In this regard, a lengthy period without evidence of treatment may also be viewed as evidence weighing against the Veteran's claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed.Cir. 2000). However, the absence of contemporaneous medical evidence does not in itself preclude a grant of service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Indeed, the Veteran's own statements that his lay-observable symptomatology has been continuous can overcome an absence of medical evidence showing such continuity. In this case, the Veteran has described limitation of full extension that developed after his inservice wart removal. The October 2009 VA examiner, however, has concluded that this is due to the scar from right palmar wart removal, no DJD of the hand. Thus, there is no evidence of continuity of symptomatology since service. For the above reasons then, service connection on a direct basis must fail. The Board will now consider whether the claim may be allowed on a secondary basis. In regard to secondary service connection, on a June 2006 VA examination, it was opined that DJD of the first MTP joint was not secondary to wart removal. In an additional VA examination in October 2009, the examiner found that there was no nerve damage and that mild degenerative changes were due to the aging process and unrelated to wart removal. The 2009 report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examination to be sufficient for appellate review and of high probative value. Moreover, no other evidence of record refutes the examiner's opinion. To the extent that the Veteran's contentions may be construed as asserting a right hand disorder and an etiology opinion therefore, the Board finds that his contentions do not provide a basis for allowance of the claim. In addressing lay evidence and determining what, if any, probative value may be attached to it, attention must be 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. The Court has held that veterans are competent to offer statements as to the continuity and severity of symptoms arising from his or her injuries. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (holding that lay evidence is competent with regard to a disease or injury with "unique and readily identifiable features" that are "capable of lay observation."); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that a veteran is competent to report as to onset and symptoms of a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that a veteran is competent to report as to onset and symptoms of tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (holding that a veteran is competent to report as to the onset and symptoms of flatfoot). Proper disposition of the Veteran's claim in this case, however, turns on the complex medical matters of whether the Veteran has an additional right hand disorder (a medical diagnosis) and whether there is a relationship between the diagnosed disorder (mild right hand DJD), for which service connection is sought, and either service or service-connected disability. These medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to be other than a layperson without the appropriate medical training and expertise, he is not competent to render a probative (persuasive) opinion on these medical matters. See, e.g., Bostain v. West, 11 Vet. App. 124, 127. See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, to the extent that the Veteran looks to his own assertions to establish both a chronic right hand disorder and a positive etiology opinion, the Board concludes that the Veteran's lay assertions in this regard have no probative value. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.102 (2013); Gilbert, supra. Therefore, the Board is unable to identify a reasonable basis for granting the Veteran's claim. ORDER Service connection for a right hand disorder, to include mild degenerative changes, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs