Citation Nr: 1616339 Decision Date: 04/25/16 Archive Date: 05/04/16 DOCKET NO. 10-45 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for paranoid schizophrenia with psychosis. 2. Entitlement to service connection for arthritis of the bilateral hands. 3. Entitlement to service connection for arthritis of the left knee. 4. Entitlement to service connection for arthritis of the thoracolumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Alicia Stone, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). This case was remanded by the Board in December 2014. It now returns for appellate review. The issues of entitlement to service connection for paranoid schizophrenia with psychosis, arthritis of the left knee, and arthritis of the thoracolumbar spine are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's arthritis of the bilateral hands did not manifest during active service or within one year of service separation, and does not otherwise result from disease or injury incurred in or aggravated by service. CONCLUSION OF LAW The criteria for entitlement to service connection for arthritis of the bilateral hands are not satisfied. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. A December 2009 letter fully satisfied the duty to notify provisions. That is, the letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates. The letter was provided before the initial unfavorable RO decision on the claim in June 2010. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In terms of assisting the Veteran to develop his claim, VA has obtained both service treatment as well as identified post-service treatment records. In addition, VA afforded the Veteran medical examinations in June 2015 pursuant to the December 2014 remand, which resulted in the June 2015 VA Medical Opinion. Furthermore, pursuant to the December 2014 remand, VA undertook additional development requesting the Veteran to provide information of all medical care providers, VA and non-VA, who had treated him for the claimed disabilities since service. In February 2016 VA notified the Veteran that he could submit additional argument or evidence. To date, neither the Veteran nor his representative has provided the foregoing. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See 38 U.S.C.A § 5103A (West 2014); 38 C.F.R. § 3.159(c). A VA examination was performed with a medical opinion provided in June 2015. See 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The examination report and opinion are adequate to make a fully informed decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The examiner considered the appellant's medical history, which included review of the claims file, set forth the examination findings, and provided a clear rationale in support of the conclusion reached. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (holding that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). A VLJ who chairs a hearing must fulfill two duties: (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. Neither the Veteran nor his representative has asserted that the undersigned VLJ failed to comply or identified any other prejudice in the conduct of the March 2013 hearing. In addition, the Veteran's statements and submissions during the course of the appeal, as well as those of his representative, demonstrate actual knowledge of the elements and evidence necessary to substantiate the claim because the submissions and statements addressed whether the Veteran has current diagnosis for the claimed disability on appeal, and whether the disability on appeal began in service or is otherwise related to service. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). All of the Board's December 2014 remand directives for additional development relating to arthritis of the bilateral hands have been accomplished. Accordingly, there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Merits of the Claim The Veteran claims entitlement to service connection for arthritis of the bilateral hands. Specifically, he contends that his bilateral hands arthritis was caused by trauma to his hands from playing football during his military service, and that he has experienced hand pain ever since service, as stated during his June 2015 VA medical examination. For the following reasons, the Board finds that service connection is not established. Service Connection Criteria: Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is granted when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). Service connection may also be established on a presumptive basis for the chronic diseases listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that the provisions of § 3.303(b) only apply to the chronic diseases listed in § 3.309(a)). This presumption relaxes the evidentiary requirements for establishing service connection. Walker, 708 F.3d at 1338. Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, no matter how remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Walker, 708 F.3d at 1338-39 (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period"). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). Because the Veteran's arthritis is defined as a chronic disease under section 3.309(a), the provisions of subsection 3.303(b) for chronic diseases apply and the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. In addition, where a veteran served continuously for 90 days or more during a period of war, or 90 days or more during peacetime service after December 31, 1946, there is a presumption of service connection for arthritis if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). The Board has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Allday v. Brown, 7 Vet. App. 517, 527 (1995). The Board must assess the credibility and weight of the evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Background: The Veteran's June 1980 service treatment records (STRs) show a right hand fracture also noted as a "broken hand" with severe edema over the knuckles resulting from hitting an object. X-rays were taken noting a small chip fracture of the ulnar styloid process in the right hand with the notation, "old?" A physical profile was issued to refrain from complete use of the right hand for 2 weeks. There are no STRs related to the left hand. A June 1981 STR notes bilateral swollen wrists with pain when the Veteran was involved in a fight, and recommended a physical profile for both hands be issued for 2 weeks, though there is no indication that the hands themselves were injured. The STRs also show that throughout his service the Veteran was seen for football and basketball related injuries, but none noted as being sustained to his hands. The VA treatment records dated in 2000 and 2001, as well as in 2005 forward, show reports of various symptoms and include general physical exams. However, only once is a hand symptom or finding mentioned (although the extremities are examined as part of the general physical exams and found to be normal or no abnormalities are noted). A December 2005 VA treatment record shows numbness to the ulnar aspect of the Veteran's right hand when he was being treated for the excision of a lesion at the base of the nail of the right little finger. There is no mention of an earlier history of hand pain. There is one diagnosis of right hand pain in a May 2010 private treatment record, noting only that the right thumb is tender. Nothing was noted about the other fingers. In the June 2015 VA examination for hand and finger, the examiner reported the Veteran had a medical history of a right thumb proximal fracture when he went to jail in 1986. Analysis: Chronic osteoarthritis (OA) degenerative changes in multiple distal interphalangeal (DIP), proximal interphalangeal (PIP), and carpometacarpal (CMC) joints of the bilateral hands as diagnosed by the VA medical examiner during a June 2015 VA examination satisfies the first element of current disability for direct service connection. See Holton, 557 F.3d at 1366 ; Shedden , 381 F.3d at 1166-67. The STRs evidence that the Veteran incurred an injury or aggravation to his right hand during service, satisfying the second element of direct service connection. See Holton, 557 F.3d at 1366 ; Shedden , 381 F.3d at 1166-67. The STRs do not reflect an injury or aggravation to the left hand during service. Additionally, the STRs do not establish that the Veteran had arthritis of the bilateral hands during service. The third element for direct service connection, a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service, cannot be established. During a June 2015 VA examination is the first time the Veteran mentions that he has had bilateral hand/finger pain since the 1970's when playing sports (football) in the military. He states that such pain has gradually progressed with occasional swelling, involving all fingers except for the left thumb and, in particular, that he sustained right 5th finger and left 3rd finger injuries playing football in the military in 1970's. He further states that he has residual pain and swelling of the PIP joints in these digits, of more pain intensity than the other finger joints. The STRs do not reflect such injuries. The absence of STR entries regarding finger and hand injuries resulting from playing football and other sports supports the inference that such injuries were not sustained. See Fountain, 127 Vet. App. at 272; Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The post service treatment records are inconsistent with the Veteran's above statements and do not support them, weighing against the credibility of the Veteran's statements. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran did not mention his hands at the March 2013 Travel Board Hearing, and his representative did not address the Veteran's hands. The documentary evidence of more than 30 years outweighs the Veteran's June 2015 statements. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Based on the foregoing, the Veteran's June 2015 statements are not credible. Moreover, the VA medical examiner found that the arthritis in multiple digits of both hands did not correlate with the right hand injury in service or post-traumatic arthritis, but was more consistent with aging. Thus, the VA medical examiner's opinion also weighs against finding a medical nexus between the current disability and the in service injury or aggravation to the Veteran's right hand. Accordingly, no medical nexus for direct service connection can be established. See Holton, 557 F.3d at 1366; Shedden , 381 F.3d at 1166-67. Likewise, service connection cannot be established for presumptive chronic disease. The STRs do not establish that the Veteran had arthritis of the bilateral hands during service. Therefore, the presumption for chronicity does not apply. See Walker, 708 F.3d at 1338. However, the STRs do show a condition of the right hand "noted" in service to establish the first element of chronic disease (arthritis) through continuity of symptomatology. Yet, the second and third elements of presumptive service connection for chronic disease (arthritis) through continuity of symptomatology - a post-service continuity of the same symptoms, and a nexus between the present disability and the post-service symptoms, respectively - cannot be established as discussed above. See Fountain, 27 Vet. App. at 263-64. Moreover, the VA medical examiner found that the arthritis in multiple digits of both hands did not correlate with the right hand injury in service or post-traumatic arthritis, but was more consistent with aging. Aging constitutes an "intercurrent cause" unrelated to service, which negates service connection based on continuity. Accordingly, presumptive service connection under 38 C.F.R. § 3.303 (b) is not established. Additionally, the Veteran's post service treatment records do not evidence that arthritis of the bilateral hands manifested to a degree of 10 percent or more within one year from the date of his separation from service. Therefore, the presumption of service connection under 38 C.F.R. § 3.307 does not apply. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply, and service connection for arthritis of the bilateral hands is denied. ORDER Service connection for arthritis of the bilateral hands is denied. REMAND Upon review, the Board finds that the claim for service connection for paranoid schizophrenia with psychosis, and secondary service connection for arthritis of the left knee and thoracolumbar spine must be developed further before a decision on the merits can be made. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter informing him of the elements of secondary service connection. 2. Request the Veteran to authorize the release of his medical records from the correctional facilities in Kyle, Hondo, and Mineral Wells, Texas from 1986 to 1997. He should be furnished authorized release forms (VA Form 21-4142) for this purpose. If the Veteran properly fills out and returns the authorized release form(s), appropriate efforts must be made to obtain these records and add them to the claims file. The Veteran should also be invited to submit these records himself. The above records may be relevant to ascertaining the Veteran's history related to paranoid schizophrenia with psychosis. The VA treatment records, dated December 2005 and November 2000, reflect that the Veteran participated in treatment programs while incarcerated. 3. Request the Veteran's Social Security Administration (SSA) records pertaining to his claim for disability benefits, including all decisions and associated medical records. If these records are not available, all efforts to obtain them and any negative responses received must be documented for the file. The above records may be relevant to ascertaining the Veteran's history related to paranoid schizophrenia with psychosis. At the June 2015 C & P Examination for thoracolumbar spine, the VA examiner reported that the Veteran receives SSA disability for his mental health condition. 4. Request the Veteran to authorize the release of his medical records from the private treatment facility of Providence DePaul Center, 301 Londonderry Drive, Waco, Texas 76712 from 1982 to present. He should be furnished authorized release forms (VA Form 21-4142) for this purpose. If the Veteran properly fills out and returns the authorized release form(s), appropriate efforts must be made to obtain these records and add them to the claims file. The Veteran should also be invited to submit these records himself. The above records may be relevant to ascertaining the Veteran's history related to paranoid schizophrenia with psychosis. He referred to treatment at the above facility at the March 2013 Travel Board Hearing. 5. Add to the file the Veteran's VA treatment records from the West Texas VA Health Care System, including the Big Spring VA Medical Center (VAMC), dated in 1999, and any outstanding VA treatment records dated since 2012. The above records may be relevant to ascertaining the Veteran's history related to paranoid schizophrenia with psychosis. A November 2000 VA treatment records reflect that the Veteran may have been hospitalized for mental health at the Big Springs VAMC in 1999. 6. Then, after the above development is completed, obtain a supplemental medical opinion regarding the Veteran's paranoid schizophrenia with psychosis. The entire claims file must be made available to the examiner. The examiner must note in the examination report that the evidence in the claims file has been reviewed. After reviewing the claims file, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that any current paranoid schizophrenia with psychosis had its onset in service, is related to an in-service bar fight and later discipline, or is otherwise the result of a disease or injury in service. In this regard, the Veteran states that his psychiatric symptoms began as a result of the bar fight and subsequent court martial proceedings. The examiner must provide a complete explanation for the opinion. The rationale provided in the May 2015 opinion, "there is no evidence to suggest that the Veteran's [psychiatric] disorder and substance use disorder is in any way related to or caused by or a result of period of military service," is not sufficient, as it does not address the issue of whether the Veteran's altercation in a bar and subsequent reprimand may have caused his psychiatric disorder, as he states, and is not otherwise supported by an explanation. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 7. Schedule the Veteran for a VA examination to assess the likelihood that his left knee arthritis and thoracolumbar spine arthritis were caused or aggravated by his service-connected right knee arthritis, including as a result of an abnormal gait. The entire claims file must be made available to the examiner for review. The examiner must conduct a thorough examination and record all pertinent clinical findings. The examiner must provide the following opinions: Causation: * Whether it is at least as likely as not (50 percent probability or more) that the Veteran's left knee arthritis was caused by his right knee arthritis, including due to an abnormal gait. * Whether it is at least as likely as not that the Veteran's thoracolumbar spine arthritis was caused his right knee arthritis, including due to an abnormal gait. Aggravation (if causation not found): * Whether it is at least as likely as not that the Veteran's left knee arthritis has been aggravated by his right knee arthritis (i.e. there is additional impairment of the left knee beyond any medically established baseline), including due to an abnormal gait. * Whether it is at least as likely as not that the Veteran's thoracolumbar spine arthritis has been aggravated by right knee arthritis (i.e. there is additional impairment of the thoracolumbar spine beyond any medically established baseline), including due to an abnormal gait. * The examiner's conclusion must be supported by a complete explanation. 8. Following the completion of the above, readjudicate the issues of service connection for paranoid schizophrenia with psychosis, arthritis of the left knee, and arthritis of the thoracolumbar spine. If any readjudication is unfavorable to the Veteran, furnish the Veteran and his representative a Supplement Statement of the Case. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate 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 2014). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs