Citation Nr: 1753699	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  12-15 000	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1. Entitlement to service connection for degenerative joint disease (DJD) of the left thumb.

2. Entitlement to service connection for a right hip disorder.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARINGS ON APPEAL

Veteran and Spouse



ATTORNEY FOR THE BOARD

M. Alhinnawi, Associate Counsel


INTRODUCTION

The Veteran has unverified active service from May 1989 to April 1993 and verified active service from April 1993 to September 1998.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  The Board most recently remanded this appeal for additional development in September 2016.

A personal hearing was conducted between the Veteran and undersigned in November 2013.  A transcript is associated with the record.

The issue of entitlement to service connection for a right hip disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if additional action is required on her part.


FINDING OF FACT

A chronic left thumb disorder was not shown in service or for many years later; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed arthritis of the left thumb is etiologically related to service.



CONCLUSION OF LAW

The criteria for service connection for DJD of the left thumb have not been met.  38 U.S.C. §§ 1110, 1137, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The matter was remanded in September 2016 for additional development.  That included obtaining an addendum opinion and issuing a supplemental statement of the case.  There has been substantial compliance with those instructions.

Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist, to include the adequacy of the March 2015 VA examination or September 2016 addendum opinion.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from active service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  Arthritis is a qualifying chronic disease.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The September 2016 VA examination addendum diagnosed arthritis of the left thumb.  See October 2016 VA Examination.  Element (1) of Shedden has been met.  

With respect to Shedden element (2), the Veteran asserts that her arthritis is related to an in-service injury.  See February the November 2013 Hearing Transcript.  Service treatment records show that the Veteran injured her left thumb while playing softball in July 1995.  She was diagnosed with an extension injury of the left thumb, and a September 1997 examination notes an abnormal left thumb.  The Board finds this evidence of an in-service injury sufficient to satisfy Shedden element (2).

What remains for consideration is whether there is a nexus between the Veteran's in-service left thumb injury and her current arthritis diagnosis.  There is no competent evidence of a nexus between the diagnosis of arthritis and the Veteran's service.  In a September 2016 addendum opinion, the VA examiner opined that the Veteran's arthritis was less likely as not related to remote strain.  The examiner noted the absence of residuals of a thumb injury, normal imaging of the left wrist in service, and the Veteran's age.

The Board affords the examiner's opinion great weight, as it was based on medical principles and adequate rationale, and the examiner considered the Veteran's lay statements and history of symptom manifestation.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  There are no competent opinions to the contrary.  The Board acknowledges the Veteran and her representative's statements attributing her disability and other symptoms to service; nevertheless, they are not competent to opine on the etiology of a complex medical condition such as DJD, and their statements are therefore afforded no weight.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The Board notes that in a March 2012 statement and June 2012 Form 9, the Veteran's representative argued that 38 C.F.R. § 4.19 precludes the consideration of age in adjudicating the Veteran's claim.  However, 38 C.F.R. § 4.19 prohibits the use of age as a factor in evaluation of a service-connected disability; it does not preclude consideration of age in determining whether the Veteran's arthritis is etiologically related to service.

Turning to presumptive service connection, the record does not reflect a diagnosis of DJD within one year of service; the Veteran does not argue otherwise.  See the November 2013 Hearing Testimony.  Neither does the record demonstrate continuity of symptomatology attributable to DJD.  The Board acknowledges the Veteran's reports of pain and limited range of motion in the left thumb since service, but finds that her reports are outweighed by the objective medical evidence of record.  

Based on the above, the preponderance of the evidence is against the claim of service connection for left thumb DJD on a direct or chronic disease presumptive basis.


ORDER

Entitlement to service connection for DJD of the left thumb is denied.


REMAND

The Veteran asserts that she has a right hip disorder as a result of descending ship ladders in service.  See March 2012 Statement in Support of Claim.  Her DD-214 and military personnel records show that she served in the Navy aboard a variety of ships.  Imaging of the right hip in April 2012 diagnosed minimal degenerative changes.  See September 2016 Medical Treatment Record, Government Facility.  As there is evidence of a current disability, an in-service event, and an indication that the two may be linked, the Veteran should be afforded a VA examination.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Accordingly, the case is REMANDED for the following action:

1.  Identify and obtain any outstanding VA or non-VA treatment records.  Any additional treatment records identified by the Veteran should be obtained and associated with her claims file.  If such efforts yield negative results, a notation to that effect should be inserted in the file.

2.  Schedule the Veteran for an appropriate VA examination for an opinion as to whether it is at least as likely as not (50 percent or greater probability) that she has a right hip disability that had its onset in service or within one year of service discharge or that is otherwise etiologically related to her active service.

The examiner must acknowledge review of the pertinent evidence of record, including the Veteran's reports of symptom manifestation.  All necessary examinations, tests, and studies should be conducted.

Rationale for the requested opinion must be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide an explanation stating why this is so.  In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question.

3.  Then, readjudicate the issue on appeal.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then return the claim to the Board.

The Veteran 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. §§ 5109B, 7112.



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs