Citation Nr: 1801877 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 09-13 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral pes planus and/or metatarsalgia. 2. Entitlement to service connection for a right hand disability, claimed as residuals of a broken right hand. 3. Entitlement to service connection for bilateral carpal tunnel syndrome (CTS). 4. Entitlement to compensation under 38 U.S.C. § 1151 for a gastrointestinal disorder. 5. Entitlement to compensation under 38 U.S.C. § 1151 for a heart disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1973 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 and May 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal was remanded by the Board in February 2014 and February 2016 in order to schedule the Veteran for a Board hearing. However, in March 2016, the Veteran indicated that he wished to withdraw his hearing request. See Report of General Information (March 2016). In his report of contact, the VA employee who spoke with the Veteran noted that the Veteran created a three-way telephone call with an individual who identified himself as a Disabled American Veterans (DAV) representative. The VA employee informed the Veteran that The American Legion was listed as his representative and that he should send an updated VA Form 21-22 if he wished to be officially represented by DAV. In a January 2017 Informal Hearing Presentation (IHP), the Veteran's representative (The American Legion) argued that it was not present when the Veteran decided to withdraw his hearing request, and that VA should not have permitted that he be assisted by an agent of a different organization. The representative asked that the case again be remanded so it could be determined if the Veteran wished to withdraw his hearing request. The Veteran has clearly expressed his desire to withdraw his hearing request. There is no indication that his right to adequate representation was compromised. In fact, the March 2016 report of contact indicates that the Veteran himself initiated the conference call with the DAV representative. In October 2017, The American Legion submitted a second IHP in which there is no indication that the Veteran desires a Board hearing. For these reasons, the Veteran's prior request for a Board hearing is considered withdrawn. In March 2017, the Board reopened the claims for service connection for a low back disability, residuals of a broken right hand, and bilateral CTS. These claims, along with the claims for compensation under 38 U.S.C. § 1151, were remanded for evidentiary development. The Veteran filed a claim for entitlement to specially adapted housing or special home adaptation grant in August 2017. This claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to compensation under 38 U.S.C. § 1151 for gastrointestinal and heart disorders are addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's low back disability, to include arthritis, did not manifest in service or within one year of separation, and is not otherwise attributable to service, nor is this disability shown to have been caused or aggravated by service-connected bilateral pes planus and/or metatarsalgia. 2. The Veteran's right hand disability, to include arthritis, did not manifest in service or within one year of separation, and is not otherwise attributable to service. 3. The Veteran's bilateral CTS, to include organic disease of the nervous system, did not manifest in service or within one year of separation, and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability, to include on a secondary and/or presumptive basis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a right hand disability, to include on a presumptive basis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for bilateral CTS, to include on a presumptive basis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017). After reviewing the record, the Board finds that VA has met that duty. In February 2014, VA mailed the Veteran a letter notifying him of the information and evidence needed to substantiate his claims for service connection. On review, VA has obtained all identified and available evidence. VA examinations pertaining to his claims were provided in May 2017 in compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). There is no evidence of any VA error in notifying or assisting the Veteran in the development of his claims. Thus, the Board will proceed to the merits of the appeal. Applicable Law Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis and organic diseases of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Low Back Disability The Veteran contends that his current low back disability, diagnosed as degenerative disc disease (DDD) and degenerative joint disease (DJD), is either directly related to his military service or is secondary to his service-connected bilateral pes planus and/or metatarsalgia. The Veteran's service treatment records reveal no evidence of back problems. At his separation examination, in June 1975, his spine was noted to be "normal" and the Veteran reported that he was "in good health." He denied arthritis or recurrent back pain. There is no evidence of complaints or treatment for back problems within one year of separation. In 1988, the Veteran filed a claim asserting that he incurred a back injury as a result of a May 1977 motor vehicle accident. Service connection for a back injury was denied in 1999. As noted above, the Board reopened the claim in March 2017. On examination in June 2002, he again reported that he injured his back during a motor vehicle accident. A diagnosis of DDD with mild lumbar scoliosis and intermittent symptomatic paraspinal muscle spasm was noted. Thereafter, VA outpatient notes reflect ongoing treatment for low back pain. In May 2017, the Veteran underwent a VA thoracolumbar spine examination. The examiner opined that it was less likely than not that the Veteran's DDD and DJD was related to his military service, as his separation examination was silent for any chronic lumbar spine condition. The examiner further opined that it was less likely than not that the Veteran's lumbar disability was proximately due to or aggravated by his service-connected bilateral pes planus and metatarsalgia. By way of rationale, the examiner explained that there was no basis in the medical literature to establish a causal link between the two conditions, and no evidence of aggravation. After careful review, the Board finds that the weight of the evidence is against the claim for service connection for a low back disability. In so finding, the Board concludes that the May 2017 VA examination report is the most probative evidence of record. The Board notes that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, his lay statements reflect his belief that his current low back disability is either related to a 1977 motor vehicle accident or, alternatively, is causally related to his service-connected bilateral pes planus and/or metatarsalgia. With regard to the first contention, the Board finds that the Veteran's allegations do not support his claim, as the reported 1977 motor vehicle accident occurred more than one year following the Veteran's separation from service. Moreover, the June 1975 separation examination findings indicate no low back pathology, and the Veteran denied recurrent back pain in his report of medical history. With regard to the claim for entitlement on a secondary basis, the Board finds that the May 2017 VA examiner's opinion regarding the medical significance of the Veteran's symptoms outweighs his lay contentions. The examination report shows that the examiner accepted the lay reports offered by the Veteran but determined that the medical literature and the Veteran's medical history did not support his theory of entitlement. On review, there is no competent medical evidence demonstrating a link between the Veteran's back problems and his service-connected foot pathology. Overall, the Board finds that the neutral, expert opinion of the VA examiner is more probative than the lay statements provided by the Veteran. In sum, the evidence deemed most probative by the Board demonstrates that the Veteran's current low back disability was not incurred during service or within one year of discharge. There is likewise no evidence that arthritis (or characteristic manifestations thereof) developed during service or within one year of discharge. The preponderance of the evidence is also against a finding that the Veteran's current low back disability is caused or aggravated by his service-connected bilateral foot pathology. In so holding, the Board places greater probative weight on the reasoned conclusions provided by the May 2017 VA examiner than on the Veteran's generalized lay statements. As such, service connection is not warranted on either a direct or a presumptive basis. See 38 C.F.R. § 3.303(b), 3.307, 3.309, 3.310; Walker, 708 F.3d 1331. Right Hand Disability The Veteran contends that his current right hand disability, which he has characterized as residuals of a broken right hand, stemmed from an in-service injury. The Veteran's service treatment records reveal that he was treated in March 1974 for jammed fingers on his right hand. He was given a splint for seven days. At his separation examination in June 1975, his upper extremities were marked as "normal" and there was no indication of right hand pathology. The Veteran denied any broken bones, arthritis, or other bone, joint, or other deformity. There is no evidence of complaints or treatment for right hand problems within one year of separation. In a May 2010 statement, the Veteran asserted that in 1974 he had a cast put on his right hand and that the hand was "possibly broken." In a July 2013 statement, he clarified that his right hand injury occurred when he jammed his fingers while rushing to his duty station. He stated that "[o]ver the years, the injury became worse and carpal tunnel syndrome occurred." (The claim for bilateral CTS is addressed below.) VA outpatient notes reflect ongoing treatment for pain in the wrists and right hand beginning in the early 2000s. In May 2017, the Veteran underwent a VA examination of the hands and fingers. A diagnosis of degenerative arthritis (also characterized as osteoarthritis) was noted, with onset in 2004. The examiner opined that it was less likely than not that this disability was related to military service. By way of rationale, the examiner explained that there was no evidence of fracture in the service treatment records as a result of the 1974 finger jamming. In short, there was no evidence that the Veteran broke his hand in service. The examiner further noted that the Veteran worked as a roofer after military service, and that his complaints of right hand pain started in April 2004, ten days after he had fallen and landed on his outstretched hand. After careful review, the Board finds that the weight of the evidence is against the claim for service connection for a right hand disability. In so finding, the Board concludes that the May 2017 VA examination report is the most probative evidence of record. The Board reiterates that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno, 6 Vet. App. at 469-70; Jandreau, 492 F.3d at 1377. In this case, his lay statements reflect his belief that his current right hand disability is related to his March 1974 injury. The Board accepts the Veteran's contentions and acknowledges that the Veteran injured his hand in service; however, the Board finds that the May 2017 VA examiner's opinion regarding the medical significance of his symptoms and the etiology of his current disability outweighs the Veteran's lay statements. The report shows that the examiner considered the medical evidence of record and accepted the lay contentions offered by the Veteran, but determined that the weight of the evidence did not support his theory of entitlement. There is no competent medical evidence suggesting a link between the Veteran's current right hand symptoms and his in-service injury. Overall, the Board finds that the neutral, expert opinion of the VA examiner is more probative than the lay statements provided by the Veteran in this case. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (it is the Board's duty "to analyze the credibility and probative value of the evidence"). The examiner's opinion is particularly convincing in light of the June 1975 separation examination findings indicating no right hand pathology, as well as the Veteran's report of medical history denying any broken bones, arthritis, or other bone, joint, or other deformity. In sum, the evidence deemed most probative by the Board demonstrates that the Veteran's current right hand disability, to include osteoarthritis, was not incurred during service or within one year of discharge. There is no evidence that arthritis (or characteristic manifestations thereof) developed during service or within one year of the Veteran's discharge. In so holding, the Board places greater probative weight on the reasoned conclusions provided by the May 2017 VA examiner than on the Veteran's generalized lay statements. As such, service connection is not warranted on either a direct or presumptive basis. See 38 C.F.R. § 3.303(b), 3.307, 3.309; Walker, 708 F.3d 1331. Bilateral CTS The Veteran contends that his current bilateral CTS originated in service. He has specifically contended that his CTS stemmed from an in-service injury to his right hand. As noted above, the Veteran's service treatment records reveal that he was treated in March 1974 for jammed fingers on his right hand. At his separation examination in June 1975, his upper extremities were marked as "normal" and there was no indication of right hand pathology. The Veteran denied any broken bones, arthritis, neuritis, or bone, joint, or other deformity. There is no evidence of complaints or treatment for hand or wrist problems within one year of separation. VA outpatient notes reflect ongoing treatment for pain in the wrists and hands beginning in the early 2000s. In May 2017, the Veteran underwent a VA examination of the hands, fingers, and wrists. Diagnoses of carpal metacarpal arthritis, carpal instability, and bilateral CTS were noted. Degenerative arthritis was also noted, with onset in 2004. The examiner opined that it was less likely than not that these disabilities were related to military service. By way of rationale, the examiner explained (as discussed above) that there was no evidence of fracture in the service treatment records as a result of the 1974 finger jamming. The examiner further explained that the Veteran's complaints of right hand pain started in April 2004 following a roofing accident. Bilateral carpal tunnel motor neuropathy was diagnosed in April 2004. The examiner noted that a January 2004 bone scan showed degenerative changes of the wrists. After careful review, the Board finds that the weight of the evidence is against the claim for service connection for bilateral CTS. In so finding, the Board concludes that the May 2017 VA examination report is the most probative evidence of record. The Board notes again that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno, 6 Vet. App. at 469-70; Jandreau, 492 F.3d at 1377. In this case, his lay statements reflect his belief that his current bilateral CTS is related to his March 1974 right hand injury. The Board accepts the Veteran's contentions and acknowledges that the Veteran injured his hand in service; however, the Board finds that the May 2017 VA examiner's opinion regarding the medical significance of his symptoms and the etiology of his bilateral CTS outweighs the Veteran's lay statements. The report shows that the examiner considered the medical evidence of record and accepted the lay contentions offered by the Veteran, but determined that the weight of the evidence did not support his theory of entitlement. There is no competent medical evidence suggesting a link between the Veteran's current CTS and his in-service injury. Overall, the Board finds that the neutral, expert opinion of the VA examiner is more probative than the lay statements provided by the Veteran in this case. The Board again notes that the examiner's opinion is particularly convincing in light of the June 1975 separation examination findings indicating normal upper extremities, as well as the Veteran's report of medical history denying any broken bones, arthritis, or other bone, joint, or other deformity. In sum, the evidence deemed most probative by the Board demonstrates that the Veteran's current bilateral CTS was not incurred during service or within one year of discharge. There is likewise no evidence that an organic disease of the nervous system (or characteristic manifestations thereof) developed during service or within one year of the Veteran's discharge. In so holding, the Board places greater probative weight on the reasoned conclusions provided by the May 2017 VA examiner than on the Veteran's generalized lay statements. As such, service connection is not warranted on either a direct or presumptive basis. See 38 C.F.R. § 3.303(b), 3.307, 3.309; Walker, 708 F.3d 1331. ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for bilateral CTS is denied. REMAND The Veteran seeks compensation under 38 U.S.C. § 1151 for his gastrointestinal and heart disorders, which he claims were caused by treatment he received at the Hampton VA Medical Center (VAMC) on June 20, 2007. Records from that facility show that the Veteran underwent an adenosine nuclear stress test on that date, following which he reported abdominal pain and was prescribed a "GI cocktail." The next day, the stress test was interpreted and a diagnosis of probable mild apical, septal, and lateral ischemia was noted. In October 2007, the Veteran presented with complaints of increased abdominal pain and distention, which he stated had gotten worse since the June 2007 stress test. He has since been diagnosed with gastroesophageal reflux disease (GERD) and atherosclerotic cardiovascular disease. In March 2017, the Board directed the AOJ to perform VA examinations and provide opinions addressing the Veteran's contentions. In a May 2017 examination report, a VA physician opined that it was less likely than not that the Veteran incurred additional gastrointestinal or heart disability as a result of the treatment he received at the Hampton VAMC on June 20, 2007. By way of rationale, the physician noted, inter alia, that there was "no evidence of complications, complaints or negative events associated with any of the June 2007 treatment provided by the Hampton VAMC." However, as noted above, this statement is untrue. On the contrary, the Veteran immediately complained of increased abdominal pain following the June 20, 2007 stress test and was diagnosed with ischemia the following day. In October 2007, he received emergency care for increased epigastric distress, which he claimed had gotten worse since the June 2007 stress test. Consequently, a remand is needed for an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. Secure any outstanding VA medical records pertaining to the Veteran from May 2017. 2. Then, forward the claims file to the appropriate specialist/s for a medical opinion (or opinions) regarding the Veteran's claims for compensation under 38 U.S.C. § 1151. After reviewing the entire claims file (including the history detailed above and in the Board's March 2017 remand), the examiner/s should opine as to the following: (a) Whether it is at least as likely as not (50-percent probability or more) that the Veteran incurred additional gastrointestinal or heart disability as a result of VA treatment or medication prescribed on June 20, 2007, to include as a result of an adenosine nuclear stress test performed on that day; (b) If additional gastrointestinal or heart disability is found to exist, whether it is at least as likely as not (50-percent probability or more) that any such additional disability was due to (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination; OR (ii) an event not reasonably foreseeable. The examiner/s should specifically discuss the following: * The Veteran's reports of worsening abdominal pain immediately following the June 20, 2007 stress test. * The June 21, 2007 diagnosis of "probable mild apical, septal, and lateral ischemia" following a re-interpretation of the stress test results. * The October 2007 emergency cares notes reflecting the Veteran's reports of worsening epigastric distress since the June 20, 2007 stress test. 3. After completing all indicated development, readjudicate the claims in light of all the evidence of record. If the benefits sought on appeal remain denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. 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). These claims 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 (2012). ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs