Citation Nr: 1756483 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-33 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a left little finger disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel INTRODUCTION The Veteran served on active duty from January 25, 1990, to February 26, 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified before the undersigned at an October 2015 videoconference hearing. A transcript of that hearing is of record. FINDINGS OF FACT 1. A left fifth finger disability clearly and unmistakably pre-existed entry to service. 2. There is clear and unmistakable evidence that a left finger disability was not aggravated during service. CONCLUSION OF LAW The criteria for service connection for a left little finger disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification requirements were met in correspondence to the Veteran dated in December 2012. The Board also finds that VA's duty to assist has been satisfied. VA has done everything reasonably possible to assist the Veteran with respect to the claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). All identified and available treatment records have been secured. The Veteran has not identified, and the file does not otherwise indicate, that there are any additional records that should be obtained prior to the appeal being adjudicated by the Board. Thus, the Board finds that the duty to assist has been satisfied to the extent possible and further attempts to obtain records would be futile. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017). While a VA medical opinion was not provided in relation to the Veteran's claim decided herein, there is not a duty to provide an examination in every case. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the VA's obligation under 38 U.S.C. § 5103A(d) to provide a Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App.79 (2006). Where the supporting evidence of record consists only of a lay statement, VA is not obligated to provide a Veteran with a medical nexus opinion. 38 U.S.C § 5103A(d) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004) (no prejudicial error in finding that a medical opinion was not warranted because there was no reasonable possibility that an opinion could substantiate the appellant's claim, as there was no evidence, other than lay assertion, that indicated an event, injury, or disease in service may be associated with symptoms). Here, the only evidence that the left little finger disability is related to active service is the Veteran's own conclusory statements. There is no medical evidence to support any alleged relationship. Therefore, the Veteran's statements are insufficient to trigger VA's duty to provide an examination with an opinion. The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish a service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. 38 C.F.R. § 3.304(b)(1) (2017). Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. Once the presumption of soundness has attached, VA holds the burden of proving by clear and unmistakable evidence that (1) the Veteran's disease or injury pre-existed service, and (2) that the disease or injury was not aggravated by service. 38 U.S.C § 1111 (2012). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (2012). The Veteran contends that he injured his left little finger during Recruit training. Specifically, at an October 2015 hearing, the Veteran testified that he fell about 15 feet while rope climbing during training, and landed on his finger. Service medical records are silent as to any complaints of an injury from a fall during training. The injured finger was noted in service medical records after the Veteran complained of not being able to perform certain training exercises due to a prior injury. Specifically, in February 1990, 11 days into training, the Veteran complained that he could not bend his finger at that time, and reported a history of surgery to the left little finger one year prior. The examiner noted a scar, edema, and deformity on examination, and assessed the problem as an old injury. It was noted that the Veteran was unable to fulfill his duties. Service medical records for a follow-up visit noted that the Veteran had had surgery in August 1989 after a crash injury. The Veteran reported that at the time of the surgery, pins were placed into the left little finger, and were removed three months later. There was a healed scar noted on the proximal interphalangeal joint. The examiner assessed the problem as status-post surgery left fifth finger. The examiner noted that the Veteran could not do pull-ups, that there was decreased range of motion in the finger, and that the finger was unable to function. The Veteran was then considered by the Medical Aptitude Board due to the non-functional left little finger. The Medical Board found that during the Military Entrance Processing Station (MEPS) physical examination conducted in January 1990 at enlistment, the Veteran was found to be qualified for service. At that time, the Veteran did not report any injury to the finger, or a history of surgery. The MEPS examiner did not note an injury to the left little finger, or any scars on the finger. The Veteran did not report a history of injury to the finger or surgery in an enlistment Report of Medical History. However, an examination conducted by the Medical Board after the Veteran reported to sick call in February 1990 found "obvious scars" to the left fifth finger. The Medical Board noted that the Veteran presented to sick call complaining of pain and limited range of motion, which interfered with his duties, and reported a history of surgery to the left little finger. The Veteran was returned to full duty at that time, but three days later, returned to sick call stating he was unable to complete the requirements of Recruit Training because of the non-functional finger. The Medical Board found that the MEPS examination erroneously missed the prior injury, and deemed the Veteran qualified for enlistment. The Medical Board opined that the physical condition existed prior to service, and would have been disqualifying had it been noted on the enlistment examination. The Medical Board further opined that the physical condition had not been aggravated by military service. In a February 1990 Proposed Military Action, the Medical Board recommended that the Veteran be discharged due to a medical disqualification which should have been detected at the MEPS examination. The Veteran signed paperwork agreeing with the discharge, and provided no rebuttal. On the Veteran's service separation form, a remark stated that the Veteran was "not aware of defect, defect not detected or waived by MEPS." The Board finds that entitlement to service connection for a left little finger disability is not warranted. The Board notes that the enlistment examinations do not indicate any left little finger injury and the Veteran was examined, accepted, and enrolled into service. While the presumption of soundness attaches in this situation, the Board finds that there is clear and unmistakable evidence that the left little finger injury pre-existed the Veteran's entry into service, and was not aggravated by service. At the time the Veteran reported to sick call, he did not report a current injury, but a prior injury to the finger that led to surgery, including the insertion of pins. The examiner in service noted an "obvious scar," that was healed and consistent with a surgery one year prior as reported. The Medical Board opined explicitly after examination that the injury pre-existed service, and that that injury was not aggravated by the 11 days of training in service. During service, the Veteran did not dispute the medical discharge, and did not provide any rebuttal. While the Veteran now testifies he did not know what he was signing, the Board finds his statements contradictory. In service, the Veteran did not report any injury, and only referenced a preexisting finger injury before service. The Board finds those statements to be more credible than statements many years later made in furtherance of a claim for benefits. In light of contradictory statements made by the Veteran, and the absence of any documented injury in service, the Board finds the Veteran's statements regarding an injury sustained in service to be not credible. Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The Board finds that the Medical Board opinion during service is more persuasive because of the expertise and training of the examiners. Bostain v. West, 11 Vet. App. 124 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Veteran has not submitted any contrary medical evidence supportive of his claim that the left little finger was injured during service, or that a preexisting left finger injury increased in severity during service The Board finds that the Medical Board determined that the preexisting left little finger injury was not aggravated during service. The Board finds clear and unmistakable evidence that the left little finger injury was not aggravated during service. Accordingly, the Board finds that the left finger disability clearly and unmistakably pre-existed service, and that the injury was clearly and mistakably not aggravated by service. Therefore the claim for service connection for a left little finger injury must be denied. 38 U.S.C.A. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left little finger disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs