Citation Nr: 1643533	
Decision Date: 11/16/16    Archive Date: 12/01/16

DOCKET NO.  12-25 011	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for calcific bursitis of the left shoulder, region coricoid and resolved fracture of left clavicle, prior to March 20, 2013 and in excess of 20 percent thereafter, excluding the period from March 20, 2013 through May 31, 2013 during which a temporary total evaluation was assigned.

2.  Entitlement to an initial rating in excess of 10 percent for right hip degenerative joint disease.

3.  Entitlement to a compensable initial rating for left hip degenerative joint disease.

4.  Entitlement to service connection for residuals of fractures of the 4th and 5th fingers of the right hand.


REPRESENTATION

Veteran represented by:	The American Legion
WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel


INTRODUCTION

The Veteran served on active duty from July 1957 to July 1961.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

The March 2012 rating decision granted the claims of entitlement to service connection for left shoulder, left hip, and right hip disabilities, and assigned initial 10 percent ratings to the left shoulder and right hip and a noncompensable rating to the left hip.  In a September 2014 rating decision, the rating for the left shoulder disability was increased to 20 percent, effective June 1, 2013 and a 100 percent rating for a period of post-operative convalescence from March 20, 2013 through May 31, 2013.  The rating assigned to the right hip disability was increased to 10 percent for the entire period of the claim.

In August 2016, the Veteran testified at a hearing via videoconference before the undersigned Veterans Law Judge.  A transcript of the proceeding is of record. 

The Veteran also appealed the March 2012 denial of entitlement to benefits pursuant to 38 U.S.C.A. § 1151.  The issue was addressed in a September 2014 statement of the case (SOC), but on his October 2014 VA Form 9, the Veteran specifically limited his appeal to the left shoulder and bilateral hip disabilities addressed on the SOC. 

In addition, the Veteran appealed the rating assigned to service-connected epididymitis and a denial of entitlement to service connection for erectile dysfunction in an April 2014 rating decision.  An SOC was issued in November 2015, and the Veteran did not perfect the appeal.  Therefore, the Board does not have jurisdiction over those issues.

The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability has been raised by the record in a November 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over tit, and the issue is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016).

The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).   

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Residuals of fractures of the 4th and 5th fingers of the right hand are not etiologically related to service.


CONCLUSION OF LAW

The criteria for service connection for residuals of fractures of the 4th and 5th fingers of the right hand have not been met.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 

The record reflects that all available pertinent treatment records have been obtained, to include service treatment records and available post-service VA treatment records.  Moreover, the Veteran has been provided the appropriate VA examination.

The Veteran has not identified any other outstanding, existing evidence that could be obtained to substantiate the claims.  The Board is also unaware of any such evidence.  Accordingly, the Board will address the merits of the claim.

II. Legal Criteria

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The United States Court of Appeals for Veterans Claims (Court) has held that the requirement for service connection that a current disability be present 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 even though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 

III. Factual Background and Analysis

In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran contends that he sustained an injury to his right 4th and 5th fingers while boxing in service and that his hand was in a cast for several weeks as a result.  Therefore, he argues that service connection is warranted for a disability of the right hand. 

Service treatment records contain a notation in October 1958 that the Veteran had a swollen right hand for which an x-ray was ordered.  There are no other references to a right hand injury in service, to include the results of an x-ray.  However, the Veteran is competent to speak to the nature of his in-service injury and its treatment.  Therefore, the appeal rests on whether the Veteran has a current disability that is a result of that event.  

VA treatment notes document a diagnosis of Dupuytren contracture of the right hand, which was also diagnosed by the September 2011 VA examiner.   The examiner noted that the Veteran attributes a right 4th metacarpal fracture to a boxing practice injury in service.  However, the examiner stated that there is no radiological evidence of residuals of this fracture.  The examiner stated that the Veteran's Dupuytren contractures affecting the 4th and 5th right fingers is not causally related to trauma from a previous fracture but is causally related to repetitive injury to the palmar fascia from lifting, carrying, and the use of tools.  The examiner indicated that the disability appears most commonly in the dominant hand, which is the right hand for the Veteran.  Thus, the examiner concluded that the Veteran's current right hand disability is not causally related to the right hand disability treated in service.

There is no contradictory opinion of record, and at his August 2016 hearing, the Veteran denied receiving treatment for his right hand disability.  The Veteran is competent to speak to his in-service injury and symptoms, but the determination of the etiology of a complex disability such as Dupuytren contractures requires specialized medical knowledge.  See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007) (holding that some disabilities are not capable of lay observation).  Consequently, the Board determines that a preponderance of the evidence is against the Veteran's claim of entitlement to service connection a right hand disability, and the claim is denied.

The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. 
§ 5107; see also Gilbert.  However, the preponderance of the evidence is against the Veteran's claim, so the doctrine is not applicable.



ORDER

Entitlement to service connection for residuals of fractures of the 4th and 5th fingers of the right hand is denied.


REMAND

Unfortunately, the Board determines that a remand is necessary so that the Veteran may be afforded additional VA examinations to assess the current severity of his service-connected shoulder and hip disabilities.  The most recent examinations were performed in June 2014.  At his August 2016 hearing, the Veteran testified that his disabilities had become worse since those examinations.  Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991).   

Moreover, the June 2014 examinations are inadequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 
§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, range of motion measurements of the opposite undamaged joint.  Thes requirements were not met in full for either the left shoulder or the hips.  In light of these facts, additional VA examinations of the Veteran's musculoskeletal disabilities must be scheduled.  

Additionally, at his August 2016 hearing, the Veteran testified that he was to receive VA treatment for his hips the next day.  Consequently, there are outstanding, relevant VA treatment notes that must be obtained.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file).

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include all outstanding VA treatment notes.

2.  The Veteran should be afforded the appropriate examinations to determine the current degree of severity of his left shoulder and right and left hip disabilities.  All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed.

The examiner must provide accurate and fully descriptive assessments of all symptoms and must comment upon the frequency and severity of the Veteran's symptoms in accordance with VA rating criteria.  

Both passive and active range of motion testing should be performed, in weight-bearing and nonweight-bearing.  In addition, the range of motion of the opposite, undamaged joint should also be documented, if possible.  See Correia v. McDonald, 28 Vet. App. 158 (2016).

Also, to the extent possible, the examiner should provide an assessment of the functional impairment during flare ups.  If the examiner is unable to do so, the examiner should explain why.

The report should discuss all symptoms and manifestations of service-connected disabilities that could impact the Veteran's ability to function in a work-like setting.  The examiner should consider the Veteran's education and occupational experience, irrespective of age and any nonservice-connected disorders. 

3.  The RO or the AMC should also undertake any other development it determines to be necessary. 

4.  Then, the RO or the AMC should adjudicate the issues remaining on appeal.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his agent, and they should be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).



_________________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).



Department of Veterans Affairs