Citation Nr: 1803230 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-08 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a right hand disability. 2. Entitlement to a disability rating in excess of 20 percent for lumbosacral spine degenerative disc disease and degenerative joint disease. REPRESENTATION Veteran represented by: Karl. A. Kazmierczak, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran had active service from May 1984 to March 1987 and from March 1987 to March 1992. This case comes before the Board of Veterans' Appeals (the Board) on appeal from August 2011 and March 2012 rating decisions of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims folder. Additionally, evidence has been associated with the Veteran's claims folder included with a waiver of RO consideration. The issue of entitlement to an increased disability rating for lumbosacral spine degenerative disc disease and degenerative joint disease is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A right hand disability, diagnosed as rotatory subluxation of the carpal bone without instability, was not manifest in service and is not otherwise attributable to service. CONCLUSION OF LAW A right hand disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify was satisfied by a November 2010 letter. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. The Veteran's service treatment records, VA treatment records, and evidence submitted by the Veteran have been associated with the claims file. The Veteran has also been provided with a VA examination for his right hand in January 2012. Also, as noted above, the Veteran was afforded a hearing before the undersigned VLJ for his claim on appeal. Here, during the August 2017 Board hearing, the VLJ clarified the issue on appeal; clarified the concept of service connection claims; identified potential evidentiary defects which included the etiology of the Veteran's right hand disability; clarified the type of evidence that would support the Veteran's claim; and enquired as to the existence of potential outstanding records. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. Finally, neither the Veteran nor his attorney has raised any issues with 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 duty to assist argument). The Board will therefore proceed to the merits of the appeal. Service connection for a right hand disability Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that his right hand disability on appeal is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he has a right hand disability that is related to his service. He testified at the August 2017 Board hearing that during service, he tripped on stairs and stumbled through glass. He further testified that during service, his hands were crushed on truck panel during an exercise. See the August 2017 Board hearing transcript, pgs. 9-10. The Board notes that the Veteran's service treatment records document treatment for a cut to the right thumb in October 1984. Also, in October 1985, the Veteran was treated for contusion to the hands from the reported accident when his hands were crushed on a truck panel. The Veteran was provided a VA examination in January 2012. At that time, the Veteran reported that he never paid attention to the onset of hand pain and stiffness. He did not report a permanent weakness or loss of range of motion but rather a loss of distal right radial thumb sensation due to digital nerve involvement. The VA examiner assessed the Veteran with rotatory subluxation of carpal bone without instability. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran's current right hand disability is related to his service. Specifically, the January 2012 VA examiner concluded after examination of the Veteran and review of the Veteran's medical history that it is less likely than not that the rotatory subluxation of carpal bone is related to service. The VA examiner's rationale for her conclusion was based on her finding that the service treatment record noting the Veteran's hand injury involved an isolated injury to the proximal interphalangeal joints. However, the Veteran's current symptoms are global, bilateral , and localized to the carpal region without isolated restriction in any proximal interphalangeal joint. Notably, the injury to the right hand in 1984 did not involve restricted range of motion of the hand. Further, with the gradual onset of bilateral symptoms of unknown duration not related in time to the injury to the right hand in 1985, the examiner opined that the Veteran's current hand symptoms are more likely than not that result of a nontraumatic condition, possibly the rotatory subluxation of the scaphoid. The January 2012 VA examination was based on upon thorough review of the record and analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the VA examiner's opinion is consistent with the Veteran's documented medical history, which is absent any report of symptomatology consistent with right hand symptomatology for more than 15 years after active service. The examiner also noted the Veteran's in-service hand injuries which she determined to be less likely as not related to his current rotatory subluxation of carpal bone without instability. The Board observes that in an August 2017 statement, the Veteran's attorney referenced a medical article indicating that the a rupture of the scapholunate interosseous ligament most frequently results from a fall onto an outstretched hand. The Veteran's attorney further noted that this medical literature indicates that the Veteran's injury in 1984 when he fell through a glass door caused his current rotatory subluxation of carpal bone without instability. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, the literature referenced by the Veteran's attorney does not contain any information or analysis specific to the Veteran's case. As discussed in detail above, the January 2012 VA examiner reviewed the Veteran's medical history, to include the in-service injuries to the hand, considered his complaints, and conducted an examination of the Veteran, and thereafter concluded that the Veteran's current rotatory subluxation of carpal bone without instability is not related to his service. The Board has therefore placed great probative value on the findings of the VA examiner. As such, the medical literature referenced by the Veteran's attorney is of little or no probative value, and, to the extent that there is any probative value, is greatly outweighed by the examiner's opinion. In relevant part, 38 U.S.C. 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). To the extent the Veteran himself asserts that he has a current right hand disability that is related to his service, the Veteran is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, his rotatory subluxation of carpal bone was not noted during service. On the contrary, his January 1992 separation examination revealed a normal examination of his right hand and wrist. Indeed, the lay evidence is inconsistent with the report of good health and generally silent history of symptoms associated with a right hand disability until 2010. The Board also finds that the Veteran's statements do not outweigh the opinion of the VA examiner who provided a thorough examination of the Veteran, considered his medical history and thereafter indicated that the Veteran's current rotatory subluxation of carpal bone without instability is not due to service. Thus, these arguments do not outweigh the specific findings of the VA examiner who is a skilled neutral professional. In short, the more credible and probative evidence establishes that the Veteran's current right hand disability was not manifest during service. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right hand disability. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for a right hand disability is denied. REMAND With respect to the Veteran's claim of entitlement to an increased disability rating for lumbosacral spine degenerative disc disease and degenerative joint disease, during the August 2017 Board hearing, the Veteran testified that he is unable to bend forward greater than 5 or 10 degrees due to his low back pain. See the August 2017 Board hearing transcript, page 12. Notably, at the Veteran's most recent VA examination for his lumbar spine in December 2016, the VA examiner recorded forward flexion to 90 degrees. While the VA examiner noted pain on motion, she did not report at what degree the Veteran evidenced pain. Further, as the Veteran's testimony at the August 2017 Board hearing indicates a worsening of his low back symptoms, the Board finds that a contemporaneous VA examination is warranted to ascertain the current severity of the Veteran's lumbosacral spine degenerative disc disease and degenerative joint disease. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]. Additionally, during the August 2017 Board hearing, the Veteran testified that he currently receives VA treatment for his lumbosacral spine degenerative disc disease and degenerative joint disease. As such, the Board finds that on remand, all outstanding treatment records pertaining to the Veteran's low back should be obtained and associated with the claims folder. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). Accordingly, the case is REMANDED for the following action: 1. Request any outstanding VA treatment records pertaining to the Veteran's lumbosacral spine degenerative disc disease and degenerative joint disease. All attempts to secure this evidence must be documented in the claims folder. 2. Thereafter, schedule the Veteran for appropriate VA examination(s) to assess the orthopedic manifestations of service-connected lumbosacral spine degenerative disc disease and degenerative joint disease. The claims folder must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the lumbar spine. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his attorney with the requisite period of time to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs