Citation Nr: 1751180 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-10 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a left hand disability. 2. Entitlement to service connection for a right hand disability. REPRESENTATION Veteran is represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1957 to April 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in February 2017, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that the Veteran previously filed a service connection claim for a left hand disability in October 1982, which was denied in 1983 due to the Veteran's failure to prosecute that claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The probative evidence of record does not contain a diagnosis of a left hand disability. 2. The probative evidence of record does not contain a diagnosis of a right hand disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a left hand disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for establishing entitlement to service connection for a right hand disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis or organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran's complete service treatment records are not available and are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. The record shows that the RO made multiple attempts to obtain the Veteran's service treatment records, including several requests for clinical records pertaining to the Veteran's claimed hand injuries. In September 2017, the RO received May 1958 clinical records relating to a left hand injury; however, no records relating to a right hand injury were located. The Board acknowledges its heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision" when service treatment records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply an "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). Left Hand Disability During the October 2016 Board hearing, the Veteran testified that he sustained lacerations to his left hand when he fell down a flight of stairs during service, causing his left hand to break through a glass window. He stated that he currently has scars on the left hand and experiences pain. A May 1958 service treatment record confirms that the Veteran sustained lacerations to the dorsum middle phalanx of the second, third, fourth, and fifth digits of the left hand when it broke through a glass window after the Veteran fell down a flight of stairs. There was no artery, nerve, or tendon involvement, and a radiographic report noted no abnormalities. The wounds were sutured, and the Veteran received antibiotics and was placed on temporarily restricted duty. Upon review of the record, the Board finds that the probative evidence of record does not show a current diagnosis of a left hand disability. A July 2007 VA treatment record shows that the Veteran reported problems with that hand when it is cold. A January 2011 VA treatment record shows that the Veteran reported sustaining "some injuries in the war," including to his hands, which were getting worse. However, neither treatment record shows a diagnosis of a left hand disability. The Veteran was scheduled for a VA examination in August 2017 to determine the nature and etiology of any current hand disabilities. However, the record shows that he failed to report for the scheduled examination and did not provide an explanation for his failure to appear. The Board notes that the VA examination request contains the Veteran's current address of record. Furthermore, a September 2017 note in the Veteran's electronic claims file indicates that that a VA employee attempted to contact the Veteran via telephone and e-mail about his failure to report for his VA examination; however, the telephone number of record was disconnected, and the e-mail was returned as undeliverable. Accordingly, the claim must be evaluated on the evidence of record. See 38 C.F.R. § 3.655(b) (when a claimant fails to report, without good cause, for a VA examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that VA's duty to assist veterans is not always a "one-way street"). Although the Veteran believes that he has a current left hand disability related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the diagnosis and etiology of hand disorders are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the diagnosis and/or etiology of a current left hand disability is not competent medical evidence. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that "[i]n the absence of proof of a present disability, there can be no valid claim"); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a disability for which service connection may be granted). In this case, there is no competent medical evidence of record showing that the Veteran has a current diagnosis of a left hand disability. As the there is no medical evidence of a current left hand disability, there is no basis upon which service connection can be awarded. Thus, the claim for service connection for a left hand disability is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's service connection claim for a left hand disability, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. Right Hand Disability During the October 2016 Board hearing, the Veteran testified that he broke his right hand and/or wrist while skiing during service. He stated that he received treatment for his injury during service and currently experiences pain in the hand. Available service treatment records show no complaints of or treatment for a right hand injury during service. A January 2011 VA treatment record shows that the Veteran reported sustaining "some injuries in the war," including to his hands, which were getting worse. However, the record shows no diagnosis of a right hand disability. As previously noted, the Veteran failed to report for a VA examination scheduled to determine the nature and etiology of any current hand disabilities, and he did not provide an explanation for his failure to appear. Accordingly, the claim must be evaluated on the evidence of record. See 38 C.F.R. § 3.655(b). Although the Veteran believes that he has a current right hand disability related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. Thus, the opinion of the Veteran regarding the diagnosis and/or etiology of a current right hand disability is not competent medical evidence. As there is no competent evidence of record showing that the Veteran has a currently diagnosed right hand disability, service connection for a right hand disability is denied. See Brammer, 3 Vet. App. at 225; see also See Sanchez-Benitez, 13 Vet. App. at 285 (1999). In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's service connection claim for a right hand disability, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. ORDER Service connection for a left hand disability is denied. Service connection for a right hand disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs