Citation Nr: 1803730 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 11-14 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a bilateral hand disability, to include as secondary to service-connected left elbow disability. 2. Entitlement to service connection for headaches, to include as secondary to service-connected traumatic brain injury (TBI), posttraumatic stress disorder (PTSD), and a cervical spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1996 to March 2009. These matters come on appeal before the Board of Veterans' Appeals (Board) from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In June 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a hearing held via videoconference. A copy of the hearing transcript has been associated with the record. Additionally, in August 2017, the Veteran's representative submitted a medical article in connection with the Veteran's headaches claim without a waiver of local consideration. See 38 C.F.R. §§ 19.9, 20.1304(c) (2017). However, as the Board is remanding the Veteran's headaches claim, the Agency of Original Jurisdiction (AOJ) will have an opportunity to review this newly submitted evidence before readjudicating the claim. In October 2014 and March 2016, the Board remanded the Veteran's claims. The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran does not have a chronic bilateral hand disability. CONCLUSION OF LAW Entitlement to service connection for a bilateral hand disability, to include as secondary to service-connected left elbow disability is not warranted. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for a bilateral hand disability. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in October 2014 and March 2016, the Board remanded this claim and ordered the AOJ to obtain outstanding private treatment records and provide the Veteran with a VA examination for his claimed bilateral hand disability. Pursuant to the Board's remand instructions, outstanding private treatment records have been obtained and associated with the claims folder. Also, the Veteran was provided a VA examination for his claimed bilateral hand disability in May 2016. His claim was most recently readjudicated in a May 2016 supplemental statement of the case (SSOC). Accordingly, the Board's remand instructions have been complied with regarding the Veteran's headaches claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Duties to Notify and Assist Neither the Veteran nor his representative 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 a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in June 2012. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. Service connection for a bilateral hand disability The Veteran contends that he has a bilateral hand disability that is related to his service or is alternatively secondary to his service-connected left elbow disability. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant 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). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2015); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may also be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 ; 38 C.F.R. § 3.317(a)(1); 71 FR No. 242, pp. 75669-75671 (December 18, 2006). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Functional gastrointestinal disorders; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a). The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a). A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317(a). A disability referred to in this section shall be considered service connected for purposes of all laws of the United States. 38 C.F.R. § 3.317(a). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue (2) Signs or symptoms involving skin (3) Headache (4) Muscle pain (5) Joint pain (6) Neurologic signs and symptoms (7) Neuropsychological signs or symptoms (8) Signs or symptoms involving the respiratory system (upper or lower) (9) Sleep disturbances (10) Gastrointestinal signs or symptoms (11) Cardiovascular signs or symptoms (12) Abnormal weight loss (13) Menstrual disorders. 38 C.F.R. § 3.317(b). Compensation shall not be paid under this section if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). With respect to a current disability, the competent medical evidence of record does not demonstrate that the Veteran is currently diagnosed with a chronic bilateral hand disability. The Board acknowledges a VA treatment record dated in September 2010 that notes the Veteran's report of occasional numbness and tingling in his hands, as well as weakness in his hands. Also, in October 2011, the Veteran reported pain in his right hand since 2002. However, the Veteran was provided a VA examination for his claimed bilateral hand disability in May 2016 at which time he reported to the VA examiner that he did not have any problems associated with his hands. Indeed, he reported to the examiner that his hands are "fine" and that there is nothing wrong with his hands. The Veteran further reported that he worked as a mail carrier for the United States Post Office and did not have any problems delivering mail and using his hands. He also stated that one of his hobbies was going to a rifle range one or two times per week. The examiner therefore declined to diagnose the Veteran with any chronic bilateral hand disability based on no objective evidence of hand symptoms and the Veteran's report of no hand symptoms. The Board wishes to make it clear that it has no reason to doubt that the Veteran has experienced certain symptoms such as numbness, tingling, pain, and weakness in his hands. However, he denied such symptoms to the May 2016 VA examiner. Further, symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Pertinently, in this case, the evidence does not support a finding that the symptoms that the Veteran has reflect a chronic disability of the hands. The record does not show a diagnosis of a chronic bilateral hand disability. Indeed, the Veteran has denied that any hand symptoms exist. In addition, although the Veteran served in the Persian Gulf, he cannot establish service connection for an undiagnosed illness under 38 C.F.R. § 3.317, because there is no indication of a chronic disability, and there is not shown to be an undiagnosed or a medically unexplained chronic multi-symptom illness. With regard to lay statements made by the Veteran in connection with his claim, 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"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past, including pain, as a lay person he is not competent to associate any of his claimed symptoms to a chronic bilateral hand disability. Such opinion requires specific medical training in the field of orthopedics and/or neurology and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the specific medical training in the field of orthopedics to render medical opinions, the Board must find that his contention with regard to a diagnosis of a chronic bilateral hand disability to be of minimal probative value and outweighed by the objective evidence which is absent a finding of such. See also 38 C.F.R. § 3.159(a)(1) (2017) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim is not competent evidence of a disability of the hands. Because the weight of the evidence of record does not substantiate a current chronic bilateral hand disability, service connection is not warranted on that basis as to this claim. See Degmetich v. Brown, 104 F.3d 132 (Fed. Cir. 1997); see also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. In conclusion, 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 bilateral hand disability, to include as secondary to service-connected left elbow disability. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for a bilateral hand disability, to include as secondary to service-connected left elbow disability is denied. REMAND With regard to the Veteran's claim of entitlement to service connection for headaches, he reported in his August 2017 Informal Hearing Presentation (IHP) that his headaches are secondary to his service-connected PTSD. Pertinently, there is no evidence currently associated with the Veteran's VA claims folder that offers an opinion as to a possible causal relationship between the Veteran's current headaches and his service-connected PTSD. In light of the foregoing, the Board is of the opinion that a VA examination would be probative in ascertaining whether the Veteran's current headaches are caused or aggravated by his PTSD. See 38 C.F.R. § 3.159(c)(4) (2017) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Additionally, the Veteran submitted a medical article in his August 2017 IHP which documents a link between TBI and post-traumatic headaches. 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]. Although a September 2011 VA opinion is of record which indicates the Veteran's current headaches are not caused or aggravated by his TBI, the Board finds that in light of the Veteran's submission of the medical article in August 2017, remand is warranted for an addendum opinion to be obtained as to whether the Veteran's headaches are caused or aggravated by his TBI which considers the submitted medical article. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his headaches. The Veteran's claims folder must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must provide an opinion as to the following: a. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's headaches disability is proximately due to or caused by his service-connected TBI. b. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's headaches disability is aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected TBI. If the examiner finds that the headaches disability is aggravated by the service-connected TBI, then he/she should quantify the degree of aggravation, if possible. In rendering the requested opinion, the examiner is requested to review the medical article submitted by the Veteran in August 2017 which discusses pathophysiological links between TBI and post-traumatic headaches. c. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's headaches disability is proximately due to or caused by his service-connected PTSD. d. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's headaches disability is aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected PTSD. If the examiner finds that the headaches disability is aggravated by the service-connected PTSD, then he/she should quantify the degree of aggravation, if possible. The examiner should indicate in his/her report that the claims file was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. In providing the requested opinion, the examiner should be advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs