Citation Nr: 1753776	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  13-34 949	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUES

1.  Entitlement to service connection for a left wrist disability.

2.  Entitlement to service connection for a left hand disability.

3.  Entitlement to service connection for a left knee disability.

4.  Entitlement to service connection for a left ankle disability.

5.  Entitlement to service connection for a left foot disability.

6.  Entitlement to service connection for a right wrist disability.

7.  Entitlement to service connection for a right hand disability (diagnosed as right hand degenerative joint disease).

8.  Entitlement to service connection for a right knee disability.

9.  Entitlement to service connection for a right ankle disability.

10.  Entitlement to service connection for a right foot disability.
REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. B. Yantz, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from May 1973 to May 1977.

These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2012 and December 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

[The Veteran had also initiated appeals of denials of service connection for coronary artery disease, hypertension, type 2 diabetes mellitus, gastroesophageal reflux disease (GERD), and hyperlipidemia.  However, following an October 2013 Statement of the Case addressing these issues, the Veteran excluded these issues from the current appeal on his December 2013 VA Form 9.  Consequently, these matters are not before the Board.]

For the issues of service connection for a left wrist disability, a left hand disability, a left knee disability, a left ankle disability, a left foot disability, and a right wrist disability, the instant Board decision is dismissing these issues, pursuant to the Veteran's November 2015 written statement withdrawing such issues from the current appeal.  Thereafter, an October 2017 statement from the Veteran's representative appears to raise these issues anew.  Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a).  38 C.F.R. § 3.155(a) (2017).  When such a communication is received, VA shall notify the claimant and the claimant's representative of the information necessary to complete the application form or form prescribed by the Secretary.  Id.  The October 2017 written argument may be interpreted as a desire to reopen the claims of service connection for a left wrist disability, a left hand disability, a left knee disability, a left ankle disability, a left foot disability, and a right wrist disability, but does not meet the standards of a complete claim for benefits.  Because the Board does not have jurisdiction to consider an appeal in these matters at this time (for the reasons outlined in the decision below), they are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.  38 C.F.R. § 19.9(b).

The issues of service connection for a right knee disability, a right ankle disability, and a right foot disability are REMANDED to the AOJ.  VA will notify the Veteran if action on his part is required.


FINDINGS OF FACT

1.  In a November 2015 written statement, prior to the promulgation of a decision in the appeal in the matters, the Veteran stated that he wished to withdraw his appeal as to the claims seeking service connection for a left wrist disability, a left hand disability, a left knee disability, a left ankle disability, a left foot disability, and a right wrist disability; there is no question of fact or law in these matters remaining for the Board to consider.

2.  The Veteran currently has a chronic right hand disability (diagnosed as right hand degenerative joint disease), and he has experienced continuity of right hand disability symptomatology ever since a right thumb injury during his service.




CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal are met as to the claims seeking service connection for a left wrist disability, a left hand disability, a left knee disability, a left ankle disability, a left foot disability, and a right wrist disability; the Board has no further jurisdiction in these matters.  38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for service connection for a right hand disability (diagnosed as right hand degenerative joint disease) have been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

Any error in VA's duties to provide notice or assistance in this case is harmless, given the dismissal of the six claims withdrawn by the Veteran, as well as the fully favorable determination for the sole claim being decided on appeal at this time.

Legal Criteria and Analysis

Withdrawn Claims

The Board has jurisdiction in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary.  38 U.S.C. § 7104.  The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105(b)(5).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the Veteran or by his authorized representative, and must be in writing or on the record at a hearing.  38 C.F.R. § 20.204.

In a November 2015 written statement, the Veteran stated that he wished to withdraw his appeal as to the claims seeking service connection for a left wrist disability, a left hand disability, a left knee disability, a left ankle disability, a left foot disability, and a right wrist disability.  There remain no allegations of errors in fact or law for appellate consideration regarding these issues.  Accordingly, the Board does not have jurisdiction to consider an appeal in these matters, and the appeal in these matters must be dismissed.

Service Connection Claim - Right Hand Disability

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as arthritis, is shown as such in service or during the presumptive period for chronic diseases, subsequent manifestations of the same chronic disease are generally service connected.  Entitlement to service connection based on chronicity of symptoms pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a).

In the present case, the Board finds that the Veteran has been diagnosed with right hand degenerative joint disease, as shown by X-rays taken in conjunction with a May 2012 VA orthopedic examination.  Degenerative joint disease, as a type of arthritis, is expressly recognized as a chronic disease under 38 C.F.R. § 3.309(a).

The Board also finds that the Veteran injured his right thumb during his service.  Specifically, a January 1976 service treatment record (STR) noted his complaint of trauma to his right hand first digit (i.e., thumb), and he was assessed at that time with minor arthritis secondary to trauma.  Thereafter, an August 1976 STR noted that he had arthritis in "both thumbs MIP [metacarpophalangeal] joints" secondary to trauma in January 1976.  [The Veteran is already service-connected for right thumb arthritis, and that issue is not on appeal.]

Although right hand arthritis was not explicitly diagnosed during service, or within the applicable presumptive period, the Board finds that the record contains credible evidence of continuity of symptomatology related to the Veteran's current right hand degenerative joint disease since his January 1976 in-service right thumb injury.  Specifically, at a September 2014 VA hand and fingers examination, the VA examiner noted the Veteran's reports of ongoing pain in his right hand, thumb, and index finger (including flare-ups one to two times a month coinciding with gouty flares), as well as the X-ray evidence of arthritis in his right hand, and then opined: "It is at least as likely as not that the [V]eteran's current right hand arthritis is related to the right thumb injury incurred during his military service."

[While the May 2012 VA orthopedic examiner opined that the Veteran's current right hand degenerative joint disease was less likely as not related to his service; this medical opinion was based upon the "extremely prolonged time span" of no medical treatment between his January 1976 in-service injury and his initial diagnosis of gouty arthritis in 2007 (as documented by private treatment records), and such opinion did not consider or address any of the Veteran's reports of experiencing right hand pain since his right thumb in-service injury.  Therefore, this May 2012 medical opinion is entitled to less probative weight than the September 2014 medical opinion outlined above (which did refer to the Veteran's continuous right hand symptoms).]

In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for a right hand disability (diagnosed as right hand degenerative joint disease), pursuant to the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b), have been met.  The evidence, at a minimum, gives rise to a reasonable doubt on the matter.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

[The Board also finds that the instant decision applies to - and resolves - all pending claims of service connection for a right hand disability, however diagnosed.  See Clemons, 23 Vet. App. at 1, 5-6.]


ORDER

The appeal as to the claims seeking service connection for a left wrist disability, a left hand disability, a left knee disability, a left ankle disability, a left foot disability, and a right wrist disability is dismissed.

Service connection for a right hand disability (diagnosed as right hand degenerative joint disease) is granted.


REMAND

On review of the record, the Board has found that additional development is necessary for the claims on appeal for service connection for a right knee disability, a right ankle disability, and a right foot disability.

The Veteran contends that his current right knee, right ankle, and right foot disabilities are related to his service, including his participation in martial arts tournaments therein.  He alleges that he has continued to experience worsening symptoms (including pain) in these joints ever since his service.

The record reflects that the Veteran has been diagnosed with degenerative joint disease in his right knee, right ankle, and right foot, as shown by X-rays taken in conjunction with a May 2012 VA orthopedic examination.

The Veteran's STRs document that he reported pain in service involving his right knee (in August 1973 and August 1976), his right ankle (in August 1973 and April 1975), and his right foot (in August 1973 and April 1975).

At the May 2012 VA examination, as well as in addendum medical opinions provided in August 2012 and October 2012, the May 2012 VA examiner opined that the Veteran's current right knee degenerative joint disease, right ankle degenerative joint disease, and right foot degenerative joint disease were each less likely as not related to his service.  However, the Board notes that these medical opinions were based upon the approximately 30-year time span of no medical treatment that passed between his complaints of pain in each of these joints in service and his initial diagnosis of gouty arthritis in 2007 (as documented by private treatment records), and these opinions did not consider or address any of the Veteran's reports of experiencing right knee, right ankle, and right foot pain since his complaints of pain in these joints in service.

On remand, after any outstanding treatment records have been obtained, an addendum medical opinion should be obtained in order to address the Veteran's allegations of continuity of symptomatology since his service.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the absence of documented treatment cannot, alone, serve as a basis for finding that lay evidence lacks credibility).

Accordingly, the case is REMANDED for the following actions:

1.  With any needed assistance from the Veteran, including securing from him a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each identified provider, obtain all records of the Veteran's treatment for his right knee, right ankle, and right foot, including from South Carolina Internal Medicine Associates and Rehabilitation, LLC (dating since October 2010).

If any identified records cannot be obtained and it is determined that further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

2.  Obtain updated VA treatment records from September 2015 to the present.

3.  After completing the development requested in items 1 and 2, forward the claims file, to include a copy of this remand, to a clinician with appropriate expertise for an addendum medical opinion as to the nature and etiology of the Veteran's current right knee, right ankle, and right foot disabilities.  The need for another examination is left to the discretion of the medical professional offering the addendum opinion.

After reviewing the claims file, the reviewing clinician should provide an opinion on the following questions:

(a)  Is it at least as likely as not (50 percent probability or greater) that any current right knee disability was incurred in, related to, or caused by any incident of the Veteran's military service (to include his complaints of right knee pain documented in service in August 1973 and August 1976)?

(b)  Is it at least as likely as not (50 percent probability or greater) that any current right ankle disability was incurred in, related to, or caused by any incident of the Veteran's military service (to include his complaints of right ankle pain documented in service in August 1973 and April 1975)?

(c)  Is it at least as likely as not (50 percent probability or greater) that any current right foot disability was incurred in, related to, or caused by any incident of the Veteran's military service (to include his complaints of right foot pain documented in service in August 1973 and April 1975)?

The reviewing clinician should provide a complete rationale for any opinion provided, with specific consideration given to the Veteran's allegations of continuity of symptomatology in his right knee, right ankle, and right foot since his service.  If the reviewing clinician cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

4.  Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for entitlement to service connection for a right knee disability, entitlement to service connection for a right ankle disability, and entitlement to service connection for a right foot disability.  If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. § 5109B (2012).




______________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs