Citation Nr: 1753489 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-27 044A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for arthrodesis of the distal phalanx of the right index finger (right finger disorder). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran had active military service from January 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the December 2009 and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran and his spouse appeared and testified at a Board hearing held at the Chicago RO before the undersigned Veterans Law Judge in September 2014. A copy of the transcript of this hearing has been associated with the record. This matter has previously been before the Board. In January 2015 the Board found that new and material evidence had been submitted to reopen the Veteran's claim for service connection for his right index finger disorder, but remanded the merits of the claim for additional development. In July 2016 the matter returned to the Board and a decision was issued denying the claim. The Veteran appealed the July 2016 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In May 2017, the CAVC granted a Joint Motion for Remand (JMR), vacating the Board's July 2016 decision and remanding the matter back to the Board. FINDING OF FACT Resolving the benefit of the doubt in the Veteran's favor, it is at least as likely as not that the Veteran's right finger disorder was aggravated by his service. CONCLUSION OF LAW The Veteran's right finger disorder was aggravated by active military service. 38 U.S.C.A. §§ 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that his right finger disorder was aggravated by his service. The question 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. Romanowsky v. Shinseki, 26 Vet.App. 289 (2013). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. Where the evidence shows that there was an increase in disability during service, there is a presumption that the disability was aggravated by service. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) and (b). The question for the Board is whether the Veteran's pre-existing right finger disorder was aggravated by his service; that is whether there was an increase in disability during service. The Board finds that competent, credible, and probative evidence establishes that there was an increase in disability during service. The Board further finds that there is no clear and unmistakable evidence that the increase was due to the natural progress of the disability. It has been conceded that the Veteran's right finger disorder pre-existed his entrance into active duty. The Veteran's entrance examination indicated that the Veteran had hyperextension of the distal phalanx of the right index finger but good strength and function of the profundus tendon and phalanges. Service treatment records (STRs) include evidence that the Veteran had further problems with his right finger that worsened the condition and eventually required in-service surgery to ameliorate. Shortly after separation from service the Veteran underwent a VA examination In May 1970. The examination results indicated that the Veteran was unable to bend the distal interphalangeal joint more than a degree or two and the proximal interphalangeal joint to no more than 50 degrees. Furthermore, the evidence of record at the time of the examination indicated that the Veteran's distal interphalangeal joint of the right index finger was arthrodesed as a result of the in-service surgery and manifested with atrophy, an overall smaller and weaker entire distal phalanx, and limitation of motion to the proximal interphalangeal joint. The Veteran also provided multiple lay statements, through testimony and otherwise, that he felt the surgery made his finger disorder worse and that he was unable to use it as well as before. The most recent VA examination and opinion regarding the Veteran's right finger disorder was provided in February 2015. The examiner, after review of the Veteran's claims file and physical examination, opined that it was less likely than not that the Veteran's right finger disorder was not aggravated beyond its natural progression by an in-service event, injury or illness. The rationale provided by the examiner stated that "there was no new severe injury in service that could have permanently worsened the preexisting condition beyond its natural progression." The examiner further noted that "the natural progression is often worsening over the years due to the stress of normal physical daily activities." The Board finds that the Veteran's right finger disability was aggravated by his service. The Board notes that the rationale of the most recent service connection opinion was the lack of evidence of a "new severe injury in service" that could serve as the basis for evidence of aggravation. This opinion is less than probative because the examiner applied the incorrect standard to determine if the Veteran's right finger disability had been aggravated by service. The evidence of record provides that at the time of the Veteran's entrance on active duty his right finger disorder manifested predominantly as a hyperextended distal phalanx, diagnosed as a nonfunctional distal phalanx. Within a year following separation from active service the Veteran's right index finger disorder manifested as essentially ankylosed due to his 1968 surgery in service which resulted in an arthrodesed distal interphalangeal joint. Additionally, the evidence in the May 1970 VA examination indicated atrophy and limitation of motion in the proximal interphalangeal joint demonstrating right finger symptoms that were not present at entrance and indicating a worsening of the Veteran's right finger disorder. The February 2015 VA opinion is not clear and unmistakable evidence that the in-service increase was due to the natural progress of the disability. Thus, viewing the evidence as a whole and affording the Veteran the benefit of the doubt the Board finds that it is at least as likely as not that the Veteran's right finger disorder was aggravated by his active duty service and therefore service connection is warranted. ORDER Entitlement to service-connected aggravation for arthrodesis of the distal phalanx of the right index finger is granted. ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs