Citation Nr: 18145165 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-17 165 DATE: October 26, 2018 ORDER The Veteran’s petition to reopen the claim for entitlement to service connection for a left-hand stab injury is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for injury to second finger of the left hand is denied. Entitlement to service connection for numbness in left shoulder/entire left side of body is denied. FINDINGS OF FACT 1. Evidence received since July 2010 rating decision does not relate to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for a left-hand stab injury. 2. The Veteran does not have a current left knee disability. 3. The Veteran does not have a current right knee disability. 4. The Veteran does not have a current left ankle disability. 5. The Veteran does not have a current right ankle disability. 6. The Veteran’s injury to his second finger of the left hand was not shown during active service, or within one year of separation from service, and the weight of the evidence fails to establish that the Veteran’s current hand disability is etiologically related to his active service. 7. The Veteran’s numbness in left shoulder/entire left side of body disability was not shown during active service, or within one year of separation from service, and the weight of the evidence fails to establish that the Veteran’s current left shoulder/entire left side of body disability is etiologically related to his active service. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim for service connection for a left- hand stab injury has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 1151 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 3. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 1151 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 4. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1131, 1151 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 5. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1131, 1151 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 6. The criteria for entitlement to service connection for an injury to second finger of the left-hand disability have not been met. 38 U.S.C. §§ 1131, 1151 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 7. The criteria for entitlement to service connection for numbness in left shoulder/entire left side of body disability have not been met. 38 U.S.C. §§ 1131, 1151 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to December 1985. In March 2015, the Regional Office (RO) adjudicated the Veteran’s claim for left hand injury, which implies the claim was reopened. Despite the determination by the RO concerning new and material evidence, the Board of Veterans’ Appeals (Board) must find new and material evidence in order to establish its jurisdiction to review the merits of the previously denied claim. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 2001)(the Board is under the statutory obligation to conduct a de novo review of the new and material issue). Thus, the title page includes the issue of whether new and material evidence has been presented to reopen the left- hand stab injury disability claim. In his substantive appeal in April 2016, the Veteran requested a Board hearing, which was scheduled for May 2017. However, the Veteran did not attend the hearing and did not provide a reason for failure to appear. The Veteran has not requested that the hearing be rescheduled or provided good cause for why he failed to attend. The Board accordingly deems the Veteran’s hearing request to be withdrawn. See 38 C.F.R. § 20.704(e). Pursuant to Clemmons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran’s claim for injury to little finger of left hand to injury to second finger of left hand as explained below. Claim to reopen Left-hand stab injury The application to reopen the claim for entitlement to service connection for a left-hand stab injury is denied. Generally, a claim that has been denied in a final unappealed decision may not thereafter be reopened and allowed. (c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers that bears directly and substantially upon the specific matter under consideration; such new and material evidence can neither be cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 3.156 (a); Hickson v. Shinseki, 23 Vet. App. 394, 398 (2010). The Board will generally presume the credibility of the newly submitted evidence for determining whether new and material evidence has been presented. Duran v. Brown, 7 Vet. App. 216, 220 (1994). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In deciding whether new and material evidence has been submitted, the Board looks at the evidence submitted since the last final denial of the claim on any basis. Hickson v. West, 12 Vet. App. 247, 251 (1999). Here, the claim for entitlement to service connection for a left-hand stab injury was initially denied in February 1986 because there was no evidence of an in-service occurrence or nexus. The Veteran claimed that his fifth finger on the left hand was cut as a result of being stabbed. The Veteran was notified but did not appeal the decision, thus it became final a final decision. See 38 U.S.C. §§ 7105, 38 C.F.R. § 20.1103. The Veteran’s petition to reopen was most recently denied in a July 2010 rating decision, which found that the Veteran did not present any material evidence to reopen his claim. See July 2010 Rating Decision. The Veteran filed the instant claim in January 2015 for a left-hand stab injury. See January 2015 VA Form 21-526-EZ. As noted above, the Board must consider whether new and material evidence has been received to warrant reopening the claim. At the time of the July 2010 rating decision, the evidence of record included the Veteran’s service treatment records (STRs), military personnel record, as well as private treatment records. These records indicate that the Veteran had a history of a left-hand stab wound, and post-service injuries and treatment for his left-hand disability. Evidence since the July 2010 rating decision, includes VA treatment records which confirm a diagnosis of degenerative joint disease of the left hand which was treated with Etodolac. See i.e. July 2010 VA Left Hand X-ray report; see also VA Primary Care Blue Team test results received in July 2010. In the April 2015 notice of disagreement (NOD), the Veteran also provided a lay statement. See April 2015 NOD. The Veteran stated that he injured his hand when he was stabbed in his off-duty during active service in March 1983 while in Spain. He also reported that he “noted this injury in 12/85 when I did my out processing in South Carolina, somewhere I did see that it was noted.” Id. After reviewing the record, the Board finds that the Veteran’s application to reopen the previously denied claim for left-hand stab injury must be denied, because the evidence submitted after the last final denial in a July 2010 rating decision is cumulative evidence. See Anglin v. West, 203 F.3d 1343, 1347 (2000)(evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board). The Board finds that, to the extent the evidence received since the July 2010 rating decision shows reports of and treatment for a left-hand stab injury, this evidence is cumulative. The fact that he was diagnosed with a left-hand stab disability has previously been established. The record does not otherwise demonstrate a link between his current left-hand disability and his service. New and material evidence has not been submitted. Although the threshold to reopen a claim is low, such threshold has not been met in this case. Shade, 24 Vet. App. at 118. Service Connection The Veteran contends that he is entitled to service connection for bilateral ankle disabilities, bilateral knee disabilities, as well as service connection for little finger of the left hand and left shoulder numbness. Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). 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 established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Background During the entrance examination in February 1981, the Veteran had a normal clinical examination of his upper extremities and lower extremities. See STR-Medical. He also reported that he hurt his knee five years ago but denied having a current knee problem. Id. In October 1981, the Veteran received emergency care for a twisted left ankle. Id. The physical examination revealed no swelling or tenderness, and full range of motion (ROM). The X-ray did not detect any fracture. The Veteran was treated for a right knee injury in September 1983 due to a falling on knee. Id. In June 1984, the Veteran complained of trauma to his fifth finger in his left hand, and pain in bilateral ankles. The imaging studies revealed no abnormalities for the Veteran’s left hand and bilateral ankles. Id. In July 1985, the Veteran was treated for multiple inspect bites of his ankles. Id. The Veteran’s separation examination in December 1985 revealed no clinical abnormalities except for a scar on right upper arm, and a well healed left knee scar. The Veteran denied symptoms of arthritis, bone or joint deformity, painful or trick shoulder, trick of locked knee, and foot trouble. Id. During a November 1991, Army National Guard enlistment examination, the Veteran reported that he jammed his left fifth finger, and had deformity and some limitation of motion of his finger. Id. He was found physically qualified to enlist. Post-service treatment records confirm the Veteran underwent an open reduction internal fixation (ORIF) surgery for a dislocated proximal interphalangeal (PIP) joint in his left hand. See May 1990 VA Treatment Record. An imaging study taken after the ORIF, confirmed the Veteran’s PIP Joint was normally aligned. See May 1990 VA Radiological Consultation Report. In May 1991, an X-ray of the Veteran’s right foot showed no fracture or dislocation. See May 1991 VA Radiology Report. In July 2014, during a psychiatric inpatient care, an x-ray of the Veteran’s left knee indicated degenerative changes but revealed no fracture. See July 2014, VA Knee X-ray. The Veteran was prescribed Vicodin for his knee pain. The Veteran complained of bilateral ankle pain in November 2006. See November 2006 VA Urgent Care Note, in CAPRI received in March 2015. The Veteran reported that he used “to play basketball and twisted his ankles on numerous occasions.” Id. The Veteran was assessed with tendonitis and prescribed etodolac and instructed to use and stretching to relieve pain. Following a motor vehicle accident, the Veteran complained of right shoulder pain. An x-ray of the Veteran’s right shoulder in July 2007 showed no fracture or dislocation. See July 2007 VA X-ray Report, in CAPRI received in March 2015. During a VA psychiatric treatment in November 2010, the Veteran reported that he had ongoing left-hand pain, and that he was told by neurology that he did not have any nerve damage. See November 2010 VA Mental Health Note, in CAPRI received in March 2015. On physical examination, no sensory loss was found and full ROM with mild discomfort in the last two fingers of left hand was noted. Id. The Veteran was prescribed Ibuprofen for his hand pain. In December 2010, the Veteran reported he had chronic hand pain for years and that etodolac was ineffective. See December 2010 VA Primary Care Note, in received in March 2015. The physician noted the Veteran’s history relating to his left hand and the Veteran’s alcohol dependence and drug abuse problems. Id. On physical examination, no joint deformities were noted but the left pinky mid joint was larger than others, and Veteran was unable to flex that joint. Id. The Veteran was assessed with hand pain, and the physician prescribed Naproxen and night splint. She also noted that she “[d]iscussed reasons for continued and chronic issue with previous stabbing/surgery/alcohol and drug abuse damaging nerves possibly.” Id. The Veteran reported right foot and arch pain in March 2012. See March 2012, VA Podiatry consult in received in March 2015. He was assessed with neuritis. Id. A June 2018, nerve conduction study confirmed left hand numbness and weakness. See June 2018 VA Electromyography Consult. Bilateral knee disabilities A review of the medical evidence of record fails to establish any diagnosed knee disability at any time during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Although the Veteran reported that he injured his knees pain prior to active service, there is no indication that he was diagnosed with a chronic knee disorder or that he has experienced any knee disorder since discharge from service. The Board has thoroughly reviewed the Veteran’s VA treatment records and finds that, while the Veteran reported left knee pain in July 2014, there is no competent diagnosis of a left knee disability. An X-ray of the Veteran’s right knee revealed no abnormalities. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine in the context of a negative physical examination. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is competent to report his symptoms, he is not competent to attribute his symptoms to a particular diagnosis or any diagnosis at all. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007 (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). His assertions are therefore not competent evidence of a diagnosis of a knee disability. Further, his opinion would also be significantly outweighed by the lack of diagnosis from VA physicians, who clearly hold the level of medical expertise to address the nature and etiology of his complaints. The Board is cognizant of the recent ruling of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In that case, the Federal Circuit found that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Id., at 1368. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit limited its holding, stating, “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain. To establish the presence of a disability, the veteran will need to show that his pain reaches the level of functional impairment of earning capacity.” In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Here, there is no indication that the Veteran experiences functional impairment as a result of his knee complaints. Significantly, in July 2014 a VA physician treated the Veteran for knee pain but noted that the Veteran had full range of motion on flexion and no objective evidence of a right knee disability. In light of the lack of functional impairment or clinical diagnosis, the evidence does not support a finding of any current knee disability. Accordingly, the first element of service connection is not met for the bilateral knee claims. Service connection cannot be granted for a right knee disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Thus, the Veteran’s claims for entitlement to service connection for left and right knee disabilities are denied. Bilateral ankle disabilities The Board finds there is no competent evidence of any ankle disability. The medical evidence of record does not reveal any currently diagnosed ankle disability. The Veteran’s VA treatment confirms he had complaints of ankle pain in July 2005 and November 2006. However, he was not diagnosed with any current disability. Although, the Veteran was treated for ankle pain during active service, there is no indication that he was diagnosed with a chronic ankle disorder or that he has experienced any ankle disorder since discharge from service. In reviewing the claims, the Board considered the Veteran’s lay statements regarding his bilateral ankle pain. Although the Veteran, is competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine in the context of a negative physical examination. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Pursuant to Saunders v. Wilkie, 886 F.3d 1356, the Veteran has not provided any objective evidence that “his [ankle] pain reaches the level of functional impairment of earning capacity.” Thus, the evidence fails to establish a current ankle disability, and the Veteran’s bilateral ankle disabilities must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225. Injury to second finger of the left hand At the outset, the Board notes that the Veteran has an additional diagnosis related to his left-hand stab injury. Thus, the Board must analyze whether service connection is warranted for the new disability. See Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (where a prior claim for service connection has been denied, and a current claim contains a different diagnosis (even one producing the same symptoms in the same anatomic system), a new decision on the merits is required. The Veteran was diagnosed with mild degenerative joint diseases of the PIP joints of the second and fifth fingers of the left hand in July 2010. Id. Thus, he meets the first element of service connection, a current disability. The Veteran has submitted multiple statements that he sustained a left-hand stab injury while in active service. Thus, the second element of service connection, an in-service occurrence, has been met. However, there is no competent evidence that the Veteran’s current left hand DJD of PIP joints is related to the in-service injury. The Board considered the Veteran’s lay statements that his injury to his left-hand finger is related to his in-service left- hand injury, and finds that the Veteran is competent to report his symptoms as they are capable of lay observation but is not competent to provide a medical opinion concerning nexus because he has not shown that he possesses medical expertise to render medical opinions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board also considered whether service connection was warranted on a presumptive basis. The Board notes arthritis (DJD) will be presumed to be incurred in service if it manifested to a compensable degree (meaning 10 percent disabling) within one year after discharge from service. See 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). However, the record does not show that the Veteran was diagnosed with DJD of the left-hand PIP joints within one year of separation from service. Thus, the Veteran did not establish that his left-hand PIP joint DJD was a chronic condition for the purpose of presumptive service connection. The nexus component of service connection can also be established with continuity of symptomatology. This, unfortunately, has not been established, where there has been no evidence of left hand PIP joint DJD until 2010, which is 25 years after the Veteran separated from service. The Board also finds that a medical examination is unnecessary because there is no indication that the Veteran’s current second finger of the left hand disability is related to any in-service incurrence. A medical examination is necessary when there is (1) “competent evidence of a current disability or persistent or recurrent symptoms of a disability,” (2) evidence establishing an in-service “event, injury, or disease,” and (3) an “indication” that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2). Accordingly, based on the aforementioned, the Board concludes that the preponderance of the evidence is against the claim and entitlement to service connection for injury to left hand must be denied. 38 U.S.C. § 5107 (b)( 2012); Gilbert v. Derwinski, 1 Vet. App. at 54-56. Numbness in left shoulder/entire left side of body The Veteran’s claim for service connection for numbness of the left shoulder is not warranted. Although the Veteran has a current disability which was diagnosed by a June 2018 EMG report, and he has stated he sustained a left-hand injury during active service, the evidence fails to show a nexus between the current disability and his in-service injury. In deciding this claim, the Board considered the Veteran’s lay statements. The Veteran is competent to report his symptoms of left hand/sided numbness but is not competent to provide a medical opinion concerning nexus because he has not shown that he possesses medical expertise to render medical opinions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record contains no medical opinion which relates the Veteran’s current left- hand numbness to his in-service injury. The Board also finds that a medical examination not necessary pursuant to Mclendon, supra because there is no evidence that the Veteran’s current left arm numbness disability is related to any in-service incurrence or injury. Accordingly, preponderance of the evidence is against the claim and entitlement to service connection for left hand numbness or weakness must be denied. 38 U.S.C. § 5107 (b)(2012); Gilbert v. Derwinski, 1 Vet. App. at 54-56. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel