Citation Nr: 1722015 Decision Date: 06/09/17 Archive Date: 06/23/17 DOCKET NO. 13-03 263A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for callus to the fifth (5th) finger, right hand. 2. Entitlement to service connection for lower back pain. ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran had periods of active service from September 1988 to February 1989 and from May 2009 to May 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. During these proceedings, jurisdiction below was transferred to the RO in Columbia, South Carolina. The Veteran initially requested to have a personal hearing before the Board when he filed his substantive appeal in February 2013. However, the Veteran subsequently withdrew his request for a hearing in correspondence dated October 2016. The issue of entitlement to service connection for lower back pain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence of record weighs against a finding that the Veteran's callus on the fifth finger of his right hand was incurred in or caused by his active service. CONCLUSION OF LAW The criteria to establish service connection for the callus on the fifth finger of the Veteran's right hand have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory duty to notify and duty to assist provisions in this case. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016). A letter dated August 2010 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With regard to VA's duty to assist, VA has obtained the Veteran's service treatment records, Social Security Administration (SSA) records, post-service VA treatment records, and all pertinent private treatment records that the Veteran identified and authorized VA to obtain. The Veteran was provided with a VA examination in September 2010. Consequently, the Board finds that VA has satisfied its duty to assist, and the Veteran will not be prejudiced by proceeding to adjudicate the appeal. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 2. Service Connection for a Callus on the Fifth Finger of the Right Hand Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease or injury diagnosed after discharge from service when the evidence establishes that the disease or injury was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). After considering all information including the lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran claims service connection for a callus on the fifth finger of his right hand. According to the September 2010 VA examination, there is a positive callus formation in the medial aspect of the right fifth finger on the distal aspect. This condition has not resulted in impaired strength or dexterity of the Veteran's hand, nor a gap between any finger and proximal transverse crease of the hand on maximal flexion of the finger. The Veteran complained of numbness and paresthesia in the distal fifth finger of the right hand. However, the Veteran's sensation was intact throughout the right upper extremity when tested for the sensation of vibration, pain/pinprick, position sense, and light touch. Dysesthesia was not present during the examination. An EMG study was normal and yielded no electro diagnostic evidence of a right ulnar or median neuropathy. The Veteran's only diagnosis was a callus to the fifth finger without evidence of carpal tunnel neuropathy associated with numbness to the right hand. The examiner indicated that this condition caused no problems with work or other usual daily activities. There is no medical evidence in the record that the Veteran developed this callus during his active service. The Veteran's service treatment records are silent for any complaints, symptoms, treatment, or diagnosis related to a callus on the fifth finger of his right hand. The Veteran also did not report a callus on the fifth finger of his right hand and associated numbness on his report of medical assessment prepared in April 2010 as he prepared to separate from active service the following month. The Veteran specifically denied numbness or tingling in his hands or feet on a post deployment health assessment forms he completed in April and May 2010. He similarly denied any skin conditions on those forms. Similarly, the Veteran's post-service treatment records also do not record that he has sought treatment for this condition. Consequently, the evidence regarding the nature of this condition comes almost exclusively from the September 2010 VA examination described above. There is no competent evidence in the record indicating an etiological link between the Veteran's service and his callus. The only evidence of such a nexus is the Veteran's assertion, implied in his claim, notice of disagreement, and substantive appeal form, that this condition developed or was caused by his service. The Veteran is competent to provide testimony to establish the occurrence of medical symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring). However, in this particular case, the Board finds the Veteran's assertion that his callus and associated numbness were caused by or incurred in service not credible because the Veteran did not mention the callus and denied the numbness that he now associates with the callus on the health assessment forms that he filled out at approximately the same time he made his claim for compensation to VA. Notably, the Veteran has provided little to no information as to how he believes this condition is related to his service, and he has not asserted that he has suffered from symptoms related to the claimed condition continuously since separation from service. Consequently, the Board finds that the evidence of record preponderates against a finding of a link between the Veteran's service and the callus on the fifth finger of the Veteran's right hand and the associated numbness. Therefore, service connection must be denied. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, the benefit of the doubt doctrine cannot establish service connection where the evidence of record weighs against the Veteran's claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for a callus on the fifth finger of the right hand is denied. REMAND A remand is required with respect the Veteran's claim for service connection for low back pain. In September 2010, the VA examiner indicated that the examination results were insufficient to establish a diagnosis of any acute condition. However, the examination did establish limitation of the range of motion in the Veteran's lower back. Subsequently, x-rays in February 2012 and an MRI in April 2015 yielded evidence of degenerative disc disease/arthritis in the Veteran's lumbar spine. Consequently, the Board finds that a VA examination is required in order to assess the nature of the Veteran's lower back condition and to provide an opinion as to whether it is at least as likely as not that the Veteran's lower back condition was caused by or incurred in the Veteran's active service in light of the fact that the Veteran specifically mentioned back pain on his post deployment health assessment forms in April and May 2010. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records that are not already associated with the claims file. 2. Once the updated VA records are obtained and associated with the file, schedule the Veteran for an appropriate VA examination to assess the nature and likely etiology of his lower back pain. The Veteran's claims file (to include this remand) should be reviewed by the examiner in conjunction with the examination. All necessary tests should be performed and the results recorded. The examiner should identify any and all diagnosable conditions of the Veteran's lower back and opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed condition or conditions of the Veteran's lower back was incurred in or caused or aggravated by his service. In this regard, the examiner's attention is called to the Veteran's complaints of back pain in his post deployment health assessments dated April and May 2010. Rationales for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above development has been completed, undertake any additional development that may be indicated by the results of the development requested in the previous paragraphs. Then readjudicate the claim on appeal. If any benefit is denied, or less than the full benefit is granted, provide the Veteran and with an appropriate Supplemental Statement of the Case and the requisite opportunity to respond. Then, if the file is otherwise in order, return the matter to the Board for further 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). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs