Citation Nr: 1418826 Decision Date: 04/29/14 Archive Date: 05/06/14 DOCKET NO. 11-22 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a left hand condition. 2. Entitlement to service connection for a left knee condition. 3. Entitlement to service connection for a lower back condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant (the Veteran) ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active duty service from June 1986 to July 1990. This case comes on appeal before the Board of Veterans' Appeals (Board) from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran was afforded a videoconference hearing before the undersigned Veteran's Law Judge in December 2012. A copy of the hearing transcript has been associated with the claims file. The issue of entitlement to service connection for a lower back condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The weight of the probative, competent and credible evidence of record demonstrates that the Veteran does not have a current left hand disability. 2. The weight of the probative, competent and credible evidence of record demonstrates that the Veteran does not have a current left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hand condition have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The criteria for service connection for a left knee condition have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant 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, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, the VCAA duty to notify initially was satisfied by way of a pre-adjudicatory letter the RO sent to the appellant in March 2009. This letter informed of the evidence required to substantiate the claim and of the respective responsibilities in obtaining this supporting evidence, including advising of how disability ratings and effective dates are assigned. Thus, the Veteran has received all required notice concerning the claim. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. The claims file contains the appellant's STRs, VA medical treatment evidence, and the Veteran's statements. The Veteran was afforded a June 2010 VA examination to assist in determining the nature and etiology of any currently diagnosed knee or hand disabilities. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The June 2010 VA examination is adequate because it was performed by a medical professional, and was based on a review of the record and history and symptomatology from the Veteran and a thorough examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary to decide this claim that has not been obtained and that is obtainable; therefore, no further notice or assistance with this claim is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). VA's duties to notify and assist with this claim have been satisfied. Service Connection Legal Authority In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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 Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active 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). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). The most fundamental requirement for any claim for service connection is current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. 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). 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 (Fed. Cir. 2007). The Board must assess the credibility and weight of 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). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for Left Hand and Knee Conditions The Veteran contends that he has current disabilities of the left hand and left knee that were incurred in service. In the December 2012 Board hearing, he stated that he injured his left hand during active duty service when, while performing mechanical work on a truck, the hood of the truck slammed down and trapped his hand. He contends that his current left hand condition is manifested by pain, stiffness, and soreness. He explained that he injured his left knee while running in service, and his current knee condition is manifested by numbness upon prolonged sitting. He stated that he did not seek treatment for either condition after service separation because he did not have the available funds. A May 1990 service treatment record shows that the Veteran went to sick call following an injury in which his hand was slammed in a truck hood. A May 1990 radiological consultation report indicated that an x-ray of the left 3rd and 4th fingers was within normal limits. A May 1990 note shows that the Veteran went to sick call after banging his knee on a vehicle, and reported that he had been experiencing chronic left knee pain for two years. The impression was normal examination. The Veteran was afforded a June 2010 VA examination to assist in determining the nature and etiology of his hand and knee conditions. The Veteran reported that regarding his left third and fourth fingers, he slammed the hood of a truck on this fingers in service and that he sought medical attention. The examiner noted that the service medical records indicate that he had x-rays which were said to be within normal limits. The Veteran reported that the finger will sometimes lock up with activities such as holding a pen or a paint brush for a while. The examiner indicated that no swelling or tenderness of the hand. With regard to the left knee, the Veteran reported striking the knee on the edge of a tailgate in service. The examiner noted that the service medical records noted that there was a report of a 2 year history of chronic left knee pain, the last episode was said to have started after banging the knee on the vehicle. There was a report of swelling but otherwise the examination was said to be a normal examination. The Veteran reported that he can stand and walk okay regarding the left knee and no swelling, locking or giving way was reported. The Veteran reported that if he sits for a while that the leg will go numb from the knee down. On physical examination, the VA examiner found no objective evidence of impairment of the left hand or the knees. X-ray findings obtained in January 2009 showed no abnormalities of the left hand or the knees. Additional x-ray findings obtained in June 2010 showed no abnormalities of the left hand. The VA examiner acknowledged the in-service trauma to the Veteran's left hand and left knee, but concluded that no residual impairments were present. The Board finds that the weight of the evidence does not demonstrate that the Veteran has currently diagnosed left hand or left knee conditions. In order to prevail on the issue of service connection, there must first be evidence of a current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board acknowledges the Veteran's assertion that he experiences hand and knee pain as a result of in-service trauma to his left hand and knee. Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, as a lay person, the Veteran lacks the medical training and expertise to provide a complex medical opinion such as diagnosing the claimed hand and knee conditions. See Layno, 6 Vet. App. 465, see also Jandreau, supra. Therefore, the Veteran's assertion that he has the claimed conditions is insufficient to establish such a diagnosis for service connection purposes. Additionally, the Board acknowledges the Veteran's December 2012 hearing testimony asserting that he continues to experience left hand pain and numbness in his knee. The symptoms reported by the Veteran where considered by the VA examiner who concluded, after examination, that there was no current disability of the left hand or knee. It is noted that to the extent the Veteran has reported pain, pain alone does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Because the evidence does not support the finding that the Veteran has a current disability with regard to his claims for hand and knee conditions, the criteria for service connection have not been met. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claims for service connection for left hand and left knee conditions, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left hand condition is denied. Service connection for a left knee condition is denied. REMAND An October 1988 service treatment record shows that the Veteran went to sick call complaining of lower back pain for five months. Loss of range of motion was noted. X-ray findings showed no abnormalities. The Veteran was afforded a VA spine examination in June 2010. X-ray findings obtained in January 2009 show that L5 is transitional, and that the spine is otherwise normal. The Veteran received VA outpatient treatment in October 2011 with a chief complaint of chronic pain in the lower back and right shoulder. The staff physician noted that the lower back had decreased range of motion due to pain. The impression was chronic pain secondary to degenerative joint disease. No x-ray findings were provided and the note did not specify whether degenerative joint disease was present in the lower back, right shoulder, or both. In light of the above, the Board finds that a VA examination with medical nexus opinion is required to determine whether the appellant's lower back condition is causally related to active service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Arrange for the appellant to undergo a VA spine examination to ascertain the current nature and etiology of his lower back condition. All appropriate tests and studies including x-ray examination of the thoracolumbar spine should be accomplished with all results made available to the examiner prior to the completion of his or her report, and all clinical findings should be reported in detail. The examiner should be requested to: a. Indicate all lower back disabilities currently shown, and; b. Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed lower back condition had its onset in service or is otherwise related to service. The examiner should reconcile the opinion with the October 1988 service treatment record, the Veteran's statements in the December 2012 hearing that he injured his back in service while doing sit-ups on concrete and has experienced lower back pain since service, and the October 2011 VA outpatient treatment record. The claims folder must be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 2. Thereafter, readjudicate the remaining issue on appeal. If the determination remains unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case that addresses all relevant actions taken on the claim for benefits. The appellant should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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). ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs