Citation Nr: 1755167 Decision Date: 12/01/17 Archive Date: 12/11/17 DOCKET NO. 12-18 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a right hand disorder, to include a muscular and neurological condition with loss of use and degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from April 1971 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was certified to the Board by the Phoenix, Arizona RO. FINDINGS OF FACT 1. The appellant is service connected for a powder burn scar at the back of his right hand. 2. Save for the powder burn scar at the back of his right hand the preponderance of the evidence is against finding that a right hand disorder is related to active service; and there is no evidence that right hand degenerative joint disease was manifested to a compensable degree within one year following discharge from active service. CONCLUSION OF LAW A right hand disorder was not incurred in active military service, and degenerative arthritis of the right hand may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist With respect to the claim decided, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Relevant Laws and Regulations Generally, to establish service connection, a veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, i.e., the "nexus" requirement. 38 U.S.C. §§ 1110, 1131; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a chronic disease listed under 38 C.F.R. § 3.309(a) manifested in service or during a presumptive period following separation, then service connection will be established for subsequent manifestations of the same chronic disease unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). There is no competent evidence showing that right hand degenerative joint disease manifested to a compensable degree within one year of discharge from active duty. Hence, service connection on a presumptive basis as a chronic disease is not for consideration. If chronicity during service is not established, service connection may also be established by continuity of symptomatology, which satisfies the in-service and nexus requirements of service connection. 38 C.F.R. § 3.303. The Veteran must show that (1) a condition was "noted" during service; (2) post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the continuity of symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). The Veteran is service connected for powder burn scar at the back of his right hand. Save for that scar, there is no competent evidence showing that a right hand disorder was noted during service. According to the January 1976 separation examination, the Veteran's hands were clinically evaluated as normal. Hence, service connection on the basis of continuity of symptomatology is not for consideration. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). Analysis The Veteran contends that his right hand disorder was caused by an in-service injury. With regard to the first element for service connection, the Veteran is currently diagnosed with degenerative joint disease of the right hand as detailed in the November 2011 VA examination. Hence, the Veteran has a current disability as required by 38 C.F.R. § 3.303. The Board acknowledges that the Veteran was diagnosed with a ganglion of the tendon sheath in the right middle finger in December 2009, i.e., before the present claim was filed. However, as the evidence does not show that he had this condition at the time the claim was filed in February 2010, or at any time during the pendency of the claim, the Veteran is not currently diagnosed with a ganglion of the tendon sheath for VA purposes. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board also acknowledges that in a May 2010 Pinehurst Surgical Clinic record, the Veteran reported numbness and tingling in his right hand, and Dr. Mark Brenner noted that the Veteran had elements of synovitis in his fingers. However, following a May 2010 electrodiagnostic testing conducted by Pinehurst Surgical Clinic, the Veteran was not diagnosed with a right hand neurological disorder. Further, while at the November 2011 VA examination the Veteran claimed that his muscular and neurological condition began in 1975, he also reported that he had not received treatment or been hospitalized for a right hand disorder. The record, including the November 2011 VA examination, shows no current diagnosis of a current right hand muscular disorder. At the November 2011 VA examination the examiner found that the Veteran had slight weakness of the right thumb with abduction and adduction. The Veteran reported pain and weakness in his right hand. The examiner indicated that the appellant did not have a penetrating or non-penetrating muscle injury. While the Veteran is competent to report pain and weakness, see Jandreau v. Nicholson, 492 F.3d 1372, 1376 - 77 (Fed. Cir. 2007), 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. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Even if the Veteran had been diagnosed with a muscular and/or neurological disorder, the preponderance of the evidence is against finding that there is a link between such a disorder and his service, or between the disorder and the scar. The November 2011 VA examiner, following a physical examination and review of the record, found that it is less likely than not that the Veteran's right hand pain and slight weakness of the right thumb is related to his in-service injury. Further, in the July 2017 VA medical opinion, the VA physician, following a review of the record, found that it is less likely than not that any chronic right hand muscular or neurological disorder is related to service, or caused or worsened by the Veteran's service-connected right hand powder burn scar. With regard to the second element for service connection, the Board finds that the Veteran incurred a right hand injury in service. A December 1974 service treatment record shows that the Veteran incurred a blast-type injury to his right hand, which left powder burns on the back of his hand and fingers. As noted, the Veteran is service connected for a right hand powder burn scar. Hence, the Veteran incurred an in-service injury as required by 38 C.F.R. § 3.303. With regard to the third element for service connection, however, the record shows no competent medical evidence linking his current right hand degenerative joint disease with either his service or service-connected disabilities. Indeed, the only evidence suggesting such a relationship is the appellant's lay opinion. A layperson is competent to report observable symptomatology which comes to him via his senses. See Jandreau. Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology, and the Veteran's statements cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Lay testimony on the etiology of a muscular or neurological disorder is not competent in the present case, because the Veteran is not competent to state that such a disorder resulted from in-service disease, injuries, or other incidents of service. The record shows that VA attempted to schedule a right hand VA examination in September 2017, which included a request to examine any joint condition. That examination was cancelled as VA was unable to contact the Veteran since it did not have the Veteran's address and his phone number was disconnected. VA attempted to obtain more current contact information from a counselor at the emergency room who had treated the Veteran, but the counselor stated that the appellant had refused to update his address or phone number. It is well established that it is the Veteran's responsibility to keep VA advised of his whereabouts. There is no burden on the part of the VA to turn up heaven and earth to find him. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Thus, the Board finds that VA has no further duty to provide another opportunity for a VA examination. Accordingly, the Board will decide the case based on the evidence of record. See 38 C.F.R. § 3.655 (2017). As the preponderance of the most probative evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The claim is denied. ORDER Entitlement to service connection for a right hand disorder, to include a muscular and neurological condition with loss of use and degenerative joint disease, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs