Citation Nr: 1418384	
Decision Date: 04/24/14    Archive Date: 05/02/14

DOCKET NO.  10-27 367A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for a hand disorder.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Roya Bahrami, Associate Counsel


INTRODUCTION

The Veteran had active duty service from December 1957 to December 1959.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

The Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in June 2013.

By an August 2013 Board action, the Veteran's claim was reopened and remanded for further evidentiary development.  As will be discussed below, a review of the record reflects compliance with the Board's directives.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance).  The VA Appeals Management Center (AMC) continued the previous denial in a February 2014 supplemental statement of the case (SSOC).  

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).)


FINDING OF FACT

The Veteran does not have a hand disorder attributable to his military service.


CONCLUSION OF LAW

The Veteran does not have a hand disorder that is the result of disease or injury incurred in or aggravated by active military service; arthritis of a hand may not be presumed to have been incurred during active military service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits.  38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims (Court) has held that VA must inform the claimant of any information and 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.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements:  (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. 

All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, a delay in timing of the notice is "cured," and therefore harmless, when notice is followed by readjudication of the claim (such as through issuing a Statement of the Case or Supplemental Statement of the Case) after the claimant has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

Here, prior to the initial rating decision in this matter, an April 2005 letter notified the Veteran of all five elements of a service connection claim, and also informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim.  Therefore, the duty to notify is satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187. 

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The record reflects that some of the Veteran's service treatment records in the custody of the federal government may have been lost.  As documented in an April 2006 formal finding of unavailability, the RO took appropriate actions to obtain the missing service treatment records.  It has been determined that VA has exhausted all available channels to pursue the missing records and it appears that further efforts to obtain the records would be futile.  38 C.F.R. § 3.159; 38 U.S.C.A. § 5103A.  The Board finds that the proper procedures have been followed and that no useful purpose would be served by remand for further notice or development of the record in this case.  See M21-1MR, Parts II and III; Dixon v. Derwinski, 3 Vet App. 261 (1992).

In compliance with the Board's August 2013 remand, the AOJ attempted to locate the additional private treatment records identified by the Veteran and associated all those found with the claims file.  In addition, VA provided the Veteran with a medical examination in October 2013.  The October 2013 examiner reviewed the objective evidence of record, documented the Veteran's current complaints, performed a thorough clinical evaluation, and provided an opinion as to the nature of the claimed disability, accompanied by a rationale.  The examination is adequate for VA purposes.  Thus VA has complied with the October 2013 remand instructions.  Stegall, supra.

In sum, VA's duty to notify and assist under the VCAA has been satisfied.  The Veteran has had ample opportunity to participate in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim...must be considered prejudicial.")).  Accordingly, the Board may proceed with appellate review.

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013).  Service connection may also be granted for any injury or disease diagnosed after service, 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).  Generally, service connection requires:  (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999).  Further, it is not enough that an injury or disease occurred in service; 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).

In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2013).

The Veteran asserts that he has a bilateral hand disorder that was caused by service.  The Veteran's Form DD 214 demonstrates that his military occupational specialty (MOS) was Turret Maintenance.  The Veteran states that his MOS required repetitive use of fingers, hands, and wrists.  In addition,  the Veteran contends that he injured his left thumb while demonstrating how to use an M-1 rifle during basic training.  He stated that his thumb blew up to 5 times normal size and he could not protect his hands from the cold elements with the gloves provided.  He believes that the exposure to the elements on his hands caused arthritis along with a burning sensation and numb feeling in his hands that wakes him during the night.  He stated that his condition has gotten worse over the years.  

Of record are VA treatment records from December 2009 to July 2013.  In December 2009, an X-ray of the Veteran's hands revealed degenerative change of bilateral second distal interphalangeal joints.   In May 2010, the Veteran underwent left carpal tunnel release.  

At the Board hearing, the Veteran testified that, in addition to his thumb injury, he consistently tightened tracks during his 18 months overseas, which required a lot of repetitive motion.  However, he did not experience numbness, tingling, sharp pains in the wrists or hands until after separation from service.  After service, he was a truck driver for a couple years and then he was a construction boiler maker until he retired in 1996.  He confirmed that it required a lot of repetitive movement with his hands.  He first sought private treatment in the late 1980's or early 1990's.  He stated that none of his treatment providers has stated the cause of the condition.

Pursuant to the Board's August 2013 remand, the Veteran underwent VA examination in October 2013.  The Veteran reported that he did not know when his hand pain and symptoms began, but sometime during the 1960's or 1970's.  He also stated that he worked as a construction boilermaker and welder for over 30 years.  Upon physical examination of the Veteran and review of his claims file, the examiner diagnosed osteoarthritis and carpal tunnel syndrome, and opined that a hand disorder was less likely as not related to in-service injury or disease.  He reasoned that the Veteran's symptoms began many years after service and would be most likely attributable to the repetitive hand and wrist activities required as a boilermaker and welder.  It was noted that the Veteran's arthritis was also due to repetitive use and age.

The Veteran has also submitted multiple written statements to VA in support of his service connection claim.  In an October 2010 "buddy statement" the Veteran's longtime friend and fellow service member stated that the Veteran told him in service how he injured his thumb while he was training another soldier how to insert a clip into the M-1 rifle.  He further stated that the Veteran was in charge of small arms and had to maintain and clean all firing weapons involving constant repetitive motion.  During the years that followed after service, he complained of pain and discomfort in his hands and still does to this day.

Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a hand disorder.  VA examination confirms that the Veteran currently suffers from bilateral carpal tunnel syndrome and arthritis.  The Board concludes, however, that the greater weight of the evidence is against the claim.  Here, even conceding the Veteran's in-service left thumb injury and other repetitive-use activities, the October 2013 VA examiner found no link between any current disability and military service.  Moreover, the Veteran himself acknowledged that he did not experience numbness, tingling, or sharp pains in the wrists or hands until after separation from service.

Additionally, there is no medical evidence suggesting that any hand arthritis became manifest to a compensable degree within a year of the Veteran's separation from military service.  38 C.F.R. §§ 3.307, 3.309.  The Veteran testified that his hand pain and symptoms began sometime during the 1960's or 1970's.  He also stated to the October 2013 VA examiner that he did not seek treatment until the late 1980's or early 1990's.

Furthermore, the Board finds persuasive the absence of medical evidence to support a finding of a nexus between the Veteran's service and his current disability.  The October 2013 VA examiner specifically noted that, because the Veteran's first complaints of hand problems occurred many years after his separation from service, an etiological relationship between his diagnosed problems and service was unlikely.

The Board acknowledges the Veteran's statements that his current hand disorder is related to service.  The Veteran, however, has not demonstrated that he has any medical expertise to make such an opinion.  Although the Veteran is competent to report symptoms such as hand pain, he does not have medical expertise and therefore cannot provide a competent opinion regarding diagnosis or causation of this disability.  As a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a medical matter such as whether there exists a medical nexus between any current wrist disorder and service.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  Further, the October 2013 VA examiner considered the Veteran's report of in-service and post-service symptoms in reaching his medical conclusions.  Consequently, in this case, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant a claim for service connection.  Lathan v. Brown, 7 Vet. App. 359, 365 (1995).

For the reasons stated, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection.  See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision is not helpful to the claimant.  See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for a hand disorder is denied.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs