Citation Nr: 1804092 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-37 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for residuals of a right ankle sprain. 2. Entitlement to service connection for residuals of a fracture of the fifth finger of the right hand. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Costello, Associate Counsel INTRODUCTION The Veteran had active service from April 1960 to May 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a hearing in October 2017 before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. The Board notes that the Veteran filed for an increased rating claim for his service-connected hearing loss in September 2017. The issue of hearing loss remains pending RO action and is not before the Board at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for residuals of a right ankle sprain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Residuals of a right fifth finger fracture to include arthritis of the proximal interphalangeal (PIP) joints of the right hand is not attributable to or related to service. CONCLUSION OF LAW Residuals of a right fifth finger fracture were not incurred or aggravated in active service nor may arthritis be presumed to have been so incurred or aggravated. 38 U.S.C. §§ 1101, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran's service treatment records (STRs) indicated that in June 1961, the Veteran dislocated his right middle joint of the right fifth finger while playing basketball. His January 1960 entrance examination and March 1962 separation examination revealed normal findings. Also, the Veteran indicated on his March 1962 medical history that he did not have bone joint or other deformities nor swollen or painful joints. Post-service, in September 2012, the Veteran established care with the VA. He did not have any complaints and reported that he had a right middle finger repair surgery in 2000. In November 2013, the Veteran had a private disability benefits questionnaire (DBQ) for hand and finger conditions. He was diagnosed with a right PIP deformity of the fifth finger in 1960 and a current diagnosis of osteoarthritis of the PIP joints of the bilateral hands. On examination, the Veteran had limitation of motion of the bilateral index fingers, long fingers, ring fingers, and little fingers. Upon testing finger flexion, the physician noted that there was a gap less than one inch of the little finger of the right hand. There was no objective evidence of painful motion. The physician found that there was no functional loss of the right hand, thumb, or fingers. In December 2013, two buddy statements indicated that the Veteran had difficulty gripping small tools with his right hand. In April 2014, the Veteran underwent a VA DBQ for hand and finger conditions. The examiner reviewed his claims file. He was diagnosed with degenerative joint disease of the right hand in 2014. The Veteran reported that he injured his finger playing softball while serving in Germany. He was unsure if his condition was formally diagnosed, but reported pain when the weather was cold and that his right little finger did not bend as it should. During flare-ups, the Veteran reported difficulty gripping items. On examination, the Veteran had limitation of motion of his right thumb, index, long, ring, and little fingers with no objective evidence of painful motion. He had a gap of less than one inch between his right index, long, ring, and little fingers and his proximal traverse crease of the palm. The Veteran denied trauma to his hand since his dislocated little finger of his right hand in 1961. X-rays showed a surgical screw in the third finger of his right hand, which contradicted his provided history. The Veteran's right hand little finger condition caused decreased grip strength. The examiner opined that the claimed condition was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness as the Veteran had widespread degenerative joint disease in all digits of the right hand and he sustained substantial trauma to the right hand since his service as evidenced by the April 2014 x-ray that showed a surgical screw in the third digit of the right hand. The VA examiner found that the June 1961 PIP dislocation of the right fifth finger would not cause the severity of the widespread degenerative joint disease seen on x-ray and during the physical examination. Also, the examiner noted that the Veteran's March 1962 exit examination revealed normal findings. In October 2014, the Veteran's primary care provider of six years stated that the Veteran had arthritis in multiple joints, but most extensively in his right hand and fingers as results of previous injuries. The physician noted that the arthritic condition was worsening and that the Veteran had difficulty with activities of daily living. During his October 2017 videoconference hearing, the Veteran contended that the April 2014 VA examiner did not spend much time examining his right little finger, but rather asked many questions about the other fingers on his right hand as he cut his index, middle, and ring fingers with a saw. In this case, the VA examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The November 2013 DBQ for hand and finger conditions and October 2014 private treatment note did not provide a nexus between the Veteran's in-service injury and a current diagnosis. The Board has considered the Veteran's own opinion that arthritis of the PIP joints of the right little finger was caused by the middle pip joint dislocation in June 1961. 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature" Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed condition. Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The most probative evidence establishes that arthritis of the PIP joints of the right hand did not have its onset on service, was not manifest to a compensable degree within one year of service, and is not otherwise related to service. To the extent that the Veteran has suggested that he has experienced residuals of the right fifth finger fracture since service, this is not only uncorroborated, but is in fact contradicted, by the contemporaneous record including separation examination and history. Further, there is no competent and credible evidence linking any current disability to any purportedly post-service continuous symptomatology. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Service connection for residuals of a fracture of the fifth finger of the right hand is denied. REMAND The Board sincerely regrets the additional delay that will result from this remand, but it is necessary to have a complete record to decide the claim, so the Veteran is afforded every possible consideration. In November 2013, a completed private DBQ for ankle conditions was completed. The Veteran was diagnosed with a severe right ankle sprain in 1960 and traumatic arthritis of the right ankle in 2013. Imaging studies revealed degenerative or traumatic arthritis of the right ankle. In April 2014, the Veteran underwent a VA DBQ for ankle conditions. The examiner found that the Veteran did not currently have or ever had an ankle condition as x-ray findings were consistent with the Veteran's age. The VA examiner opined that the claimed condition was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness as the Veteran's ankle range of motion was symmetrical bilaterally and there was no tenderness of the right ankle. Also, a January 1961 x-ray revealed normal findings, a February 1961 treatment note indicated that the Veteran was out of a cast and had good range of motion, and a March 1962 exit examination revealed normal findings. Based on the above, the examiner found that no diagnosis was warranted. An October 2014 private treatment note by the Veteran's primary care physician indicated that the Veteran showed significant evidence of posttraumatic arthritis in his right ankle. The physician opined that the Veteran's arthritic changes were a direct result of the injury he sustained in January 1961. He rationalized that the injury required a one week hospitalization, which was followed by an ankle cast. No diagnosis was given and no imaging studies were referenced in coming to this conclusion. The Board is unable to reconcile these disparate results or rely on the private results without further medical opinion. Therefore, for the reasons enumerated above, the Board must remand the issue so that a VA examination with addendum opinion may be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his right ankle disability. The claims folder including a copy of this remand should be made available to and reviewed by the examiner. All necessary studies and tests should be conducted. The examiner is requested to address the following: (a) Clearly identify all current right ankle disabilities found to be present. (b) The examiner is provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current right ankle condition had its clinical onset during service or is related to any in-service disease, event, or injury. The examiner must discuss the November 2013 private DBQ for ankle conditions and October 2014 etiology opinion in rendering an opinion A complete rationale must be provided for any opinion offered. 2. Review the development action obtained above to ensure that the remand directive has been accomplished. If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 3. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. 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). 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). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs