Citation Nr: 1754615 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 10-11 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for tendon damage of the left hand fingers. ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to December 1975 and from March 1977 to November 1978. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision. In June 2016, the Board remanded the case for additional development of the evidence. The case is now returned to the Board for appellate review. As for the matter of representation, the Board notes that in August 2017, the Board granted the request of the attorney who was representing the Veteran to be withdrawn as the Veteran's representative. Thus, the Board recognizes the Veteran as now proceeding pro se in this appeal. See 38 C.F.R. § 20.608(b)(2) (2017) (allowing for withdrawal of services by a representative after certification based on factors that make the continuation of representation impossible, impractical, or unethical). The April 2016 rating decision denied the Veteran's application to reopen service connection for adjustment disorder with mixed anxiety mood, PTSD, carpel tunnel syndrome of the right and left wrists, hepatitis c, hypertension, obstructive sleep apnea, residuals of a gunshot wound to the neck, and shortness of breath. The January 2017 rating decision denied the Veteran's application to reopen a claim for service connection for hypertension and denied service connection for a right hand condition and headaches. The Veteran filed notice of disagreements with the rating decisions in October 2016 and January 2017, respectively. In response to the notices of disagreement, the originating agency notified the Veteran of the post decision review process and offered options for the type of review that the Veteran could choose. Thus, although issuance of a statement of the case is required in response to a notice of disagreement, here, the evidence reflects that the AOJ is in the process of developing the claims in order to do so, and a remand for this action is, therefore, not required. Cf. 38 C.F.R. § 19.9(c) (2017), codifying Manlincon v. West, 12 Vet. App. 238 (1999). As the claims are still in the development stage, it is not in appellate status and will not be considered by the Board at this time. FINDINGS OF FACT Tendon damage of the left hand fingers clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. CONCLUSION OF LAW The presumption of soundness has been rebutted, and the Veteran's preexisting tendon damage of the left hand fingers was not aggravated by active service. 38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In June 2016, the Board remanded the Veteran's claim for additional development, to provide the Veteran with a VA examination and to perform any appropriate development to verify the events surrounding the Veteran's left hand injury. The Veteran underwent a VA examination in September 2016, which, for the reasons indicated below, was adequate. Thus there has been substantial compliance with the Board's remand directives. See Dyment v. West, 13 Vet. App. 141 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Neither the Veteran nor his attorney when representing the Veteran has raised any issues with regard to the duty to notify or duty to assist. 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). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. The term "noted," in 38 U.S.C. § 1111, refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also 38 U.S.C. § 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. Id. at 240 (holding that "asthma" was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both pre-existing and not aggravated by service. "In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service." Horn v. Shinseki, 25 Vet. App. 231, 236 (2012); see Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (explaining that the application of the presumption of sound condition does not "relieve the veteran of the burden of showing that the veteran suffered from a disease or injury while in service"); Dye v. Mansfield, 504 F.3d 1289, 1293 (Fed. Cir. 2007) ("The presumption of sound condition addresses the situation where a question arises whether a veteran's medical problems that arose during service existed before he joined the armed forces and, therefore, were not incurred in [the] line of duty."). Thus, as the United States Court of Appeals for Veterans Claims has previously explained, "before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service." Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In several letters, including in March 2009 and July 2014, the Veteran stated that he began basic training on July 29, 1975, and after about three days into training, they were in a transition phase of training and permitted to take leave to Chicago for about three days when he was attacked my unknown assailants in the City of Chicago when he injured his left hand. He indicated that he was treated during service at the medical dispensary during service and that he was given a medical profile due to the injury. An April 1975 enlistment examination report reflects no abnormalities and clinical evaluations of his upper extremities were normal and the Veteran denied a history of neuritis. An August 1975 service treatment record (STR) notes the Veteran had a laceration to his extensor tendons in the index and long fingers of the left hand in July 1975, prior to service. It further notes that the Veteran's injury occurred after he was enlisted in the service, but prior to entry on active duty. The provisional diagnosis was rule out tendon/bone damage. The impression was tendon damage to the index and long fingers and an x-ray was ordered. A subsequent STR indicates the hand injury occurred as a result of running his hand into glass and it was repaired at the Michael Reese Hospital in Chicago (which the Board notes is now permanently closed). An x-ray revealed heterotopic ossification of the index finger. He was placed on a physical profile with no assignment requiring handling of heavy materials including weapons, overhead work, pull-ups, or push-ups. A September 1977 STR reflects the Veteran reported a cramp in his left hand due to an injury over a year ago and has been having problems for the past two weeks. The clinician provided an impression of post-traumatic arthralgia. In October 1977, the Veteran reported pain in his left hand between fingers and reported an old injury. A September 1978 STR notes the Veteran had tendons cut in his left hand and report of pain. The impression was probably post-nerve injury, neuralgia. In the October 1978 separation examination, clinical evaluation of the upper extremities was normal and the examiner noted normal digits. Turning to post-service treatment, a December 1999 private treatment record notes the Veteran's report of a lump on his thumb and swelling for the past month and a half. An x-ray was questionable for ganglion cyst vs. fibrous cyst. He was referred to orthopedics, and the physician concluded the x-ray revealed a small ossific irregularity to the base of the Veteran's distal phalanx of the thumb, which the physician opined was a normal accessory ossicle and could represent an old avulsion injury, and was certainly old given the well corticated margins. The impression was no acute bony abnormality or mass. A March 2000 private treatment record reflects the Veteran's left thumb was probably a fatty [ ] (indiscernible) and that it should be removed by the surgeon. A February 2001 private treatment record notes an evaluation of a left thumb mass, which the Veteran reported he had about a year. He denied any numbness or tingling in the hand or thumb. An x-ray showed no bone or joint abnormality and the impression was soft tissue lesion, base of left thumb. A November 2006 private treatment records notes bilateral hand pain with no specific hand injury. He reported the pain was worse in his right hand and that he did an extensive amount of forceful grasping and pushing and pulling with his bilateral hands and developed progressively worsening bilateral hand pain on November 10, 2006. These records also notes the Veteran's report of the left hand operation on his left thumb in 2000 and extreme pain in both hands and arms up to elbows. The assessment was bilateral hand pain consistent with an overuse tendinitis. It further notes the Veteran had a history of a gunshot wound to the neck, with bullet still lodged in the back of his neck in 1989. An October 2007 private treatment record notes bilateral numbness and tingling of the hands. The physician noted the Veteran had similar sensation before and the physician indicated it is probably related to the Veteran's hepatitis c and possible cryoglobulinemia. A May 2008 private treatment record notes the Veteran's nerve conduction velocity testing revealed bilateral moderate to severe carpel tunnel syndrome (CTS) and had mild ulnar neuropathy secondary to injury at the elbow. A February 2010 VA examination report reflects the Veteran reported that he was "jumped" while on leave and someone bit his second and third digits and there was suturing of dorsum of these fingers. An August 2012 private treatment record reflects the Veteran had a bullet lodged in his upper neck affecting his C5 and C6 nerves, as well as neck muscles affecting his hands and fingers. An x-ray of the left hand revealed no abnormalities. The examiner indicated that determining whether the Veteran's treatment in service was acute and transitory and also as to whether the Veteran has chronic residuals of his left hand would result in resorting to mere speculation. She explained there exists medical historical data gap from 1977 to 2002 regarding left hand symptomatology and that multiple documentation exists regarding other medical issues during this time, but not related to left hand. The Veteran reported there was event of injury at work when the eminence of left hand was cut and suture repaired, and there is no documentation as the record fails to mention left hand symptomatology from 1995 to present. There were no orthopedic consults for left hand symptoms and the private treatment consults for low back pain and an office visit note from September 2002 notes that he works full-time as a machine operator and does a lot of heavy lifting at work and this indirectly regards hand functionality. The Veteran also had gunshot wound documentation from December 1989, which references subjective complaint of pain and decrease in ROM of right upper extremity but no mention of left upper extremity or objective diagnostic findings. There were notes of severe symptoms of bilateral upper extremity not consistent with current employment of 7 days and, diagnosis of overuse tendonitis and documentation of Right Thoracic Outlet Syndrome. With so many variables of multiple injuries to upper extremities and lack of symptomatology documentation, she indicated she cannot speculate regarding current left hand condition. A December 2013 VA examination report provided a detailed history of the Veteran's medical history and opined that the current diagnosis/condition for the left hand index and long fingers (related to the 1975 incident) is history of laceration and alleged tendon injury without current objective residuals and that the bilateral hand pain noted in 2006 and the left thumb ganglion cyst noted in 1999 and 2001 are conditions unrelated to the left index and long finger 1975 injury. She also opined the CTS noted in 2008 of both hands as well as the left ulnar neuropathy at the elbow are also unrelated conditions, and thus, unrelated-neither caused nor aggravated by the left index/long finger trauma 1975. The examiner explained that the STRs indicated that the left hand trauma resulted from putting his hand through glass and not as a result of an assault as the Veteran later alleged. She explained that the Veteran's left hand injury occurred prior to service and the x-ray showed a heterotopic calcification resulting from the previous trauma, which takes a significant period of time to develop these calcifications, well over a month. She explained the Veteran's symptoms during service occurred as a result of the prior trauma-manifestation of the underlying condition and not indicating a permanent aggravation and he was on permanent profile for the left hand/lighter duty, as a result of the pre-existing hand trauma and no issues noted in the 1978 separation examination. She notes that after service, he was able to engage in heavy and repetitive physical work and none of the records indicated that he was symptomatic from the left index and long finger tendon remote trauma, but only other regions of the left hand and including the right hand. She additionally notes there had been no mention nor care sought for his left index and long fingers since service. In a September 2016 VA examination, conducted by the same examiner above, the Veteran reported that he ran his hand through glass at the end of July while on leave in Chicago when he was jumped by a few guys and it was repaired with sutures. He reported that sutures were removed when he returned to Ft. Leonard Wood. The examiner concluded that the Veteran's left hand injury occurred when he ran his hand through the glass prior to service, as opposed to the Veteran's reported of an alleged assault during service or the previously alleged bite injury, based on the consistent report of the hand laceration injury noted in the STRs prior to service and the quite disparate mechanisms between a laceration and a bite injury. Furthermore, the examiner explained that nowhere in STRs is there a description of any sutures, wound healing, active wound appearance (signs of infection, etc.), or removal of sutures. She further explained there should have been clinic visits for wound checks, application of splints (typically, fingers with lacerated tendons that are repaired are placed in some type of splint to prevent movement in order to allow the lacerated tendons to keep approximated in order to heal properly.) There is no evidence of any of this in any of the available records. This also strongly suggests that the injury occurred well before the August 25-26, 1975 time frame and implies that the left hand laceration noted in August 1975 notes occurred quite some time prior to the July 29, 1975, when the Veteran entered active duty. She explained the presence of heterotopic calcification noted on x-ray also supports the occurrence of the laceration to be at least a month prior to when the August 1975 x-ray was obtained. Soft tissue calcifications occur as part of the healing process, but it takes time for the calcification to develop. The examiner noted that in August 1975, the Veteran claimed tendon damage and lacerations of the 2nd and 3rd digits of the left hand (AKA index and long fingers) and the current working diagnosis is healed tendon lacerations with resulting scars. Although he had some type of trauma to the left hand, described most proximate to the injury as "ran hand through glass," this trauma led to laceration of at least superficially the skin and likely the proximal aspect of the extensor tendons of these digits, index and long fingers. Even though the Veteran has given variable mechanisms of injury, after review of the records, there appears to have been only a single actual traumatic event. As noted above, it is less likely as not that the left hand injury occurred during a time of active duty. As far as aggravation of pre-existing injury, she opined it is less likely as not that the left finger lacerations were aggravated beyond their natural progression. She confirmed the rationale provided in her December 2013 opinion. She also notes he was seen several times initially at the onset of active duty for his left hand problem, but by the time of separation, he had no left hand issues and there are no records supporting a nexus between the time in the service and his much more recent left index and middle finger complaints, which were only in the 2010 examination and recent statements. Here, there were no abnormalities noted on the April 1975 pre-entrance examination report and the Veteran is therefore presumed to have been sound when he entered service with regard to his left hand and fingers. However, 38 C.F.R. § 3.303(c) provides that there are medical principles so universally recognized as to constitute fact, and, if in accordance with these principles the existence of a disability is established, no additional or confirmatory evidence is necessary. Thus, in accordance with the above, the Board concludes that the Veteran's tendon damage of the left hand fingers preexisted service, based on the multiple notations in the STRS that the laceration injury to his index and long fingers occurred prior to service and the examiner's finding of the same with explanation that the heterotopic calcification as noted in August 1975 takes a significant period of time to develop (well over a month), which is before the Veteran's start of service. Id. Although the Veteran has indicated in the February 2010 examination that he had a bite injury to his fingers while on leave during service for which he was treated for to include removal of sutures from the wound and his subsequent assertion that he ran his hand through glad during an assault at the end of July, the VA examiner explained in the September 2016 report that the STRs did not reflect any sutures, wound healing, active wound healing, or removal of sutures, and the STRs reflect that the Veteran had a laceration to his index and long fingers prior to active service, as confirmed by the notations and the x-ray evidence. Notably, the Veteran entered active duty on July 29, 1975. She also explained that it would be difficult to confuse a bite injury with lacerations, as they are disparate mechanisms of injury. Therefore, the evidence of record clearly and unmistakably establishes that the Veteran's left index and long finger laceration and residuals, existed prior to service. In this case, as shown above, the VA examiner considered an accurate history, provided definitive opinions, and supported those opinions with a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, these opinions indicating that the Veteran's tendon damage of the left hand fingers were not aggravated by service and that his symptoms in service were residuals of his underlying pre-service injury, which resolved prior to separation from service, are of probative weight significant enough to meet the clear and unmistakable evidence standard. The examiner also explained that the Veteran's current disabilities of carpel tunnel syndrome, as well ulnar neuropathy at the elbow are unrelated to the Veteran's pre-service laceration injury to the left index and long fingers, as such condition resolved with no residuals and his pre-service injury was unrelated to his current bilateral hand disability of CTS and ulnar neuropathy at the elbow. Notably, the Veteran's symptoms of numbing and tingling sensations in his bilateral hands have been related to hepatitis c and possible cryoglobulinemia, as noted above. Similarly, to the extent that the Veteran has indicated that he believes his disabilities were made worse by service, the probative weight of the specific opinions of the trained health care professional as to a lack of aggravation significantly outweighs the more general assertions of the Veteran in this regard. Moreover, the clear and unmistakable evidence standard does not require the absence of conflicting evidence. See Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004) ("The clear and unmistakable evidentiary standard . . . does not require the absence of conflicting evidence"). In this case, for the above reasons, the probative weight of the multiple medical opinions indicating a lack of aggravation outweigh the lay statements to a significant enough degree that there is clear and unmistakable evidence of a lack of aggravation. Based on the foregoing, the Board finds that the evidence shows that the Veteran's claimed disability clearly and unmistakably pre-exist his military service and clearly and unmistakably were not aggravated by his time in active service. As such, the presumption of soundness in this case has been rebutted. For the same reasons, the Board finds that the preexisting tendon damage of the left hand fingers was not aggravated by service. In this regard, the Board notes that the language used by the examiners did not always use the "clear and unmistakable" language. However, whether there is clear and unmistakable evidence is a legal determination to be made by the Board and not the medical professionals. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions ... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination . . . so that the current rating may accurately reflect the elements of disability present."); VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) ("Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity"). See also Kittrell v. Shinseki, No. 08-3001, 2010 WL 4671873 (Vet. App. Nov. 10, 2010) (mem.)(holding an exam was adequate in the context of secondary service connection despite not using the precise terms in 38 C.F.R. § 3.310 because "this Court has emphasized that a physician's choice of language is not error where, as here, his opinion is unambiguous and sufficient to comply substantially with the purpose for which it was sought" (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). The Court's decision was affirmed by the Federal Circuit and the Board finds its reasoning persuasive. See Kittrell v. Shinseki, No. 2011-7102, 464 Fed. Appx. 902, 2012 WL 884871 (Fed. Cir. Feb 17, 2012) (unpublished order). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Thus, despite the lack of consistent use of the terms "clear and unmistakable," the above weighing of the evidence reflects that it clearly and unmistakably shows both preexistence and a lack of aggravation. For the foregoing reasons, the presumption of soundness with regard to tendon damage of the left hand has been rebutted by clear and unmistakable that this disorder pre-existed service and clear and unmistakable evidence that it was not aggravated service. Entitlement to service connection for tendon damage of the left hand fingers is therefore not warranted. ORDER Entitlement to service connection for tendon damage of the left hand fingers is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs