Citation Nr: 1607868 Decision Date: 02/29/16 Archive Date: 03/04/16 DOCKET NO. 14-09 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for residuals of injuries to all fingers of the right hand, exclusive of the index finger. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1988 to August 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In March 2015, the Veteran provided testimony at a hearing before the undersigned Veterans' Law Judge. A transcript of the proceeding is of record. The Board remanded this matter in June 2015. As there has been substantial compliance with the remand orders, the Board may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). In an August 2015 rating decision, service connection was granted and an initial rating assigned for a right index finger disability. The RO notified the Veteran that the decision represented a total grant of benefits sought on appeal. The Board disagrees. The Board remanded claims of service connection for residuals of a right thumb injury and residuals of an injury to all other fingers of the right hand. The recent grant of service connection for a right index finger disability does not satisfy the appeal as to the other fingers. Thus the issue on appeal is as noted on the title page. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has residuals of injuries to any fingers of the right hand, exclusive of the index finger. CONCLUSION OF LAW The criteria for service connection for residuals of injuries to all fingers of the right hand, exclusive of the index finger have not been met. 38 U.S.C.A. §§ 1131, 1132, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has 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 duty to notify was satisfied in October 2011 and October 2012 letters. The duty to assist requirement has also been fulfilled. All relevant, identified, and available evidence has been obtained; specifically, the Veteran's service and pos-service treatment records are in the file. The Veteran has not referred to any additional existing evidence that is necessary for a fair adjudication of the claim which has not been obtained. The Veteran was afforded VA examinations in December 2013 and August 2015. Taken together, the Board finds the examinations are adequate; as they were conducted by medical professionals who reviewed the claims file, solicited history from the Veteran, performed a thorough examination, and provided rationale for all conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran's representative has argued that the August 2015 examination is inadequate because the examiner limited examination to the index finger. As will be discussed below, the Board finds that the examiner reviewed the complete record, considered the Veteran's history and did in fact evaluate all fingers during the examination. Based on the foregoing, the Board concludes that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000). II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay observable events or the presence of a disability or symptoms of a disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). In making these determinations, the Board has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), Wensch v. Principi, 15 Vet. App. 362, 367 (2001). And, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Although all the evidence has been reviewed in this case, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Veteran seeks service connection for residuals of injuries to the fingers on his right hand. Service treatment records are silent for any complaints, treatment or diagnosis of a right thumb condition. However, the records show that the Veteran sustained several right hand injuries in service. In July 1989, the Veteran injured his right ring finger when an artillery round fell on it, resulting in a "minor laceration with swelling and contusion." Also, in March 1990, the Veteran injured his right hand in a motor vehicle accident. The Veteran's x-rays were normal. The assessment was a fracture of the right hand. The Veteran did not undergo an examination at separation but signed a statement to the effect that he understood that his records would reflect that he waived his right to an examination. Post-service treatment records also do not show a diagnosis, complaints, or treatment for residuals of a right thumb fracture. September 2011 x-rays of the hand were normal. VA treatment records only show an assessment of chronic radial collateral ligament insufficiency and possible right index finger proximal interphalangeal joint. The Veteran was afforded a VA examination in December 2013, where he complained of pain and a crooked thumb. The examiner noted painful and limitation of motion of the right thumb. However, an x-ray of the right hand was normal. Furthermore, there were no changes between the x-ray conducted at the time of the examination and in September 2011. Therefore, the examiner found no diagnosis associated with the Veteran's bilateral hand complaints. VA treatment records from April 2014 show complaints of thumb instability. However, radiographs of the Veteran's right thumb showed no significant osteoarthritis or malalignment. Pursuant to the Board remand, the Veteran underwent another VA examination in August 2015. The examiner specifically noted that the purpose of the examination was to determine the nature and likely etiology of the Veteran's right thumb and hand conditions. The examiner noted that he reviewed the service treatment records and post-service medical records. The examiner noted two separate right hand injuries in service and described the respective histories. The Veteran injured his right ring finger in July 1989 when an artillery round fell on it, resulting in a "minor laceration with swelling and contusion." X-rays were normal and it was treated with ice and splinting. In March 1990, he injured his right hand when a 60 caliber gun fell on it resulting in a crush injury to the area of the 4th and 5th metacarpals. X-rays of the hand done the next day were normal and the injury was apparently treated conservatively "(records are spotty)." The examiner noted that it does appear that someone put a cast on the right forearm at about that time. There is a note dated April 11, 1990, indicating that the cast had just been removed and x-rays of the forearm showed no fracture, just soft tissue swelling over the right wrist. The examiner further noted that at the current examination, the Veteran reported that "some time in 1988 while in service in Belgium" he suffered a right hand laceration which was treated in the field and apparently not noted in his service treatment records. The examiner noted that the Veteran was seen in consultation in the VAMC SLC Ortho Hand Clinic in March 2014 for right index finger pain, with allegation of a laceration 20 years prior in service. He was found to have essentially normal ROM and normal X-rays. He had a slight right index PIP joint ulnar curve. Diagnosis was right index PIP joint chronic radial collateral ligament insufficiency. It was hypothesized that the reason why he had only recently noted more pain and ligamentous insufficiency after an injury so distant in the past, was that he had recently been doing a lot of writing for a college class. There did seem to be a connection between the old injury and the new finding of ligamentous insufficiency. On physical examination, the examiner noted that range of motion was normal for all fingers of the right hand. The examiner noted there was evidence of pain with use of the hand and objective evidence of pain or tenderness. The examiner specifically noted that the Veteran had pain running from the right index finger up the arm when he grips firmly with the right hand. The examiner also noted abnormal laxity of the right index finger MCP and PIP joints due to chronic radial collateral ligament insufficiency. The diagnosis was insufficiency of the right index finger metacarpophalangeal and proximal interphalangeal joints. There was no diagnosis pertaining to any other fingers of the right hand. Based on the August 2015 examination results, the RO granted service connection and assigned an initial rating for the right index finger disability. Based on the evidence of record, the Board finds that service connection is not warranted for residuals of injuries to any other fingers of the right hand. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of residuals of injuries to fingers of his right hand, other than the index finger, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement in a claim of service connection of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the evidence does not reflect that the Veteran has or has had any residuals of injuries to fingers of his right hand, other than the index finger, during the relevant period on appeal. The VA examination reports and post-service treatment records do not reveal any diagnosis of disability affecting fingers of the right hand, other than the index finger. That examiner specifically noted the Veteran's history of injury in service, both documented and self-reported, but ultimately diagnosed only a right index finger disability. The Board has also considered the Veteran's assertions as to finger pain; however, the Veteran has not indicated that he has ever been diagnosed as having any specific finger disabilities. While pain may be suggestive of a disability, without a diagnosed or identifiable underlying malady or condition, pain alone does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285(1999). The Veteran is competent to state that he injured his hand in service and has observed finger pain since then. The Board finds him to be credible in this regard. However, he is not competent to attribute the coincidence of symptoms occurring during or after service as establishing that he now has residuals injuries to his hand or fingers. As such, the Board finds that the Veteran's assertions are outweighed by the VA medical opinion addressed above. Therefore, the most probative evidence of record reflects that the Veteran lacks a diagnosis of residuals of injuries to fingers of his right hand, other than the index finger. Thus, there is no current disability to attribute to the Veteran's military service. Brammer, 3 Vet. App. at 223. The preponderance of the evidence is against the Veteran's claim; there is no doubt to be resolved; and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for residuals of injuries to all fingers of the right hand, exclusive of the index finger, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs