Citation Nr: 18148489 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-40 011 DATE: November 7, 2018 ORDER Entitlement to service connection for a right hand condition is denied. REMANDED Entitlement to service connection for lumbar spine pain, to include lumbago, is remanded. FINDING OF FACT 1. The record does not reflect evidence of a right hand disability, to include carpel tunnel syndrome. 2. There is no evidence that there is any functional impairment or loss in his right hand. CONCLUSION OF LAW The criteria for entitlement to service connection for a right hand condition have not been satisfied. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from July 2009 until July 2013. These matters come before the Board of Veterans’ Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his August 2016 Substantive Appeal, the Veteran clarified that he was appealing only two issues with respect to the July 2016 Statement of the Case. Therefore, the Board will address whether the Veteran is entitled to service connection for a right hand condition and back pain. 1. Entitlement to service connection for a right hand condition. The Veteran contends that he experiences pain in his right hand. Specifically, in his August 2016 Substantive Appeal to the Board, he stated that his hand cramps or locks up under many circumstances and that these symptoms began in service. Service connection may be granted for a veteran if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence, however, does not reveal an objective finding of a right hand disability. The October 2013 VA Compensation and Pension Hand and Finger examination reflects that the Veteran complained of pain but denied numbness or tingling in his left and right hands; he also denied any in-service complaints of pain or injury to his hands during service. After various diagnostic tests were performed, the Veteran was diagnosed with an “ill-defined nonaggressive appearing sclerotic lesion projecting from the distal aspect of the left fourth proximal phalanx,” which has been granted service connection. A diagnosis for any right hand disability was not advanced. In the October 2013 VA examination report, the examiner noted that the Veteran complained of flare ups in that “his hands stiffen up and need shaken or worked out when holding tools for an extended period,” but the examiner concluded that such flare ups do not affect his driving, work ability, writing or activities of daily living. The diagnostic tests for his hands revealed that limitation of motion affected the Veteran’s left ring finger only. Other than the Veteran’s left ring finger, there was no objective evidence of painful motion; there was no limitation of extension or evidence of painful motion for the index finger or longer finger; there were no additional limitations of motion for any other fingers; and there was no limitation of extension for the index finger or long finger post-test. The Veteran did not exhibit any functional loss and impairment other than for his left ring finger. The Veteran did not exhibit any tenderness or pain to palpation for joints or soft tissue of either hand, including thumb and fingers; left and right hand grips were 5/5 where 5 is considered normal strength. The Veteran did not exhibit ankylosis in any of his fingers. Bilateral hand x-rays were performed; as stated previously, only an “ill-defined nonaggressive appearing sclerotic lesion projecting from the distal aspect of the left fourth proximal phalanx” was advanced. The Veteran’s VA treatment records show that, in February 2014, he complained of aching and stiffness in both of his hands. To assess and diagnose the Veteran’s complaints, he was given a physical examination. The February 2014 physical examination revealed good strength of 110 on the right, negative Tinel’s at the wrist and elbow bilaterally, and benign x-ray results for his right hand. The examiner at that time remarked that the Veteran has “non-classic signs and symptoms of potential early carpal tunnel syndrome” and was referred for a nerve conduction study to assess whether the Veteran exhibited carpal tunnel syndrome. In March 2014, a nerve conduction study was performed. The nerve conduction study revealed that there was no electrodiagnostic evidence of carpal tunnel syndrome in both of his hands; the impression was normal bilateral upper extremity study. In December 2014, during an annual physical examination, the Veteran did not voice any complaints about his right hand. In July 2016, the Veteran confirmed that he was treated by VA doctors only and that there were no private medical records that needed to be obtained by the RO. In the August 2016 Substantive Appeal, the Veteran acknowledged that he did not exhibit carpal tunnel syndrome in his right hand. Service connection may only be granted for a veteran if the evidence demonstrates that the Veteran exhibits a current disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In this instant case, medical evidence indicates that the Veteran does not exhibit a disability of the right hand; no diagnosis or impression of a disability was advanced by a medical examiner. Therefore, absent any medical evidence of a disability, a grant of service connection for a right hand disability is not warranted. See 38 U.S.C. § 1110 ; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges, however, that undiagnosed pain can be so debilitating that it can result in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (where the evidence shows that symptoms reach the level of a functional impairment of earning capacity, a disability for VA compensation purposes exists, even if there is no underlying diagnosis). Here, the Veteran’s records reflect subjective complaints of pain. However, there is no persuasive evidence showing that the pain results in any functional impairment. Id. at 1363 (2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). As stated previously, in the October 2013 VA examination report, the examiner performed various diagnostic tests of the Veteran’s right hand and concluded that the Veteran did not exhibit any functional loss or impairment in his right hand. In the same October 2013 report, the examiner remarked that “in terms of Mitchell Criteria, there would not be any further expected loss in degree of [range of motion], loss of functionality, weakness, fatigability, or incoordination with repetitive use or with an acute flare up” in his right or left hand. The examiner concluded that the Veteran’s hand, thumb or finger conditions would not impact his ability to work. In the November 2013 VA treatment record, the Veteran stated that he works full time as a mechanic and that “he will often hit hands off things while doing mechanical work.” Therefore, absent evidence of functional impairment or loss due to pain, service connection for a right hand condition is not warranted. The Board recognizes that for veterans who served during the Gulf War Era, service connection may be established for undiagnosed illnesses on a presumptive basis. See 38 C.F.R. § 3.317. To establish service connection for VA purposes, the Veteran must have served in the Southwest Theater of Operations, which does not include Afghanistan. 38 C.F.R. § 3.317 (e)(2). In this case, the Veteran’s military records show that the Veteran served in Afghanistan during the Gulf War Era and that he did not serve in any of the countries considered to be Southwest Theater of Operations for VA purposes. Therefore, presumptive basis for service connection under 38 C.F.R. § 3.317 does not apply. In summary, the Veteran has not demonstrated that his subjective complaints of pain reaches the level of functional impairment of earning capacity, and there is no medical evidence that the Veteran exhibits a right hand disability. As a lay person, the Veteran is competent to relate some symptoms such as pain, but he generally does not have the requisite medical knowledge, training, or experience to be able to diagnose an underlying disorder. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. Given that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, the Board finds that the preponderance of evidence is against a finding that there is a right hand disability for which service connection could be granted. Therefore, the claim for service connection for a right hand condition must be denied. 38 U.S.C. §5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for back pain is remanded. In June 2013, the Veteran filed a claim for service connection for back pain. He separated from service in July 2013. In his August 2016 Substantive Appeal, the Veteran asserted that his back pain started in military service, and that prior to service, he did not have any trouble with his back. In October 2013, the Veteran was afforded with a thoracolumbar spine VA examination for compensation purposes. A diagnosis of lumbar spine pain/lumbago was advanced. A radiological impression of “mild diminished height of the posterior aspect of L5, possibly due to old trauma” was advanced. As the Veteran complained of back pain before he separated from service and since medical evidence reveals lumbago and a “mild diminished height of the posterior aspect of L5” shortly after service, the Board finds that the low threshold of McLendon has been met and the Veteran should be afforded a VA examination to determine the nature and etiology of his back pain. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Provide the Veteran another opportunity to identify any pertinent treatment records, VA or private, with respect to back pain complaints. The RO/AMC should secure any necessary authorizations. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Schedule the Veteran for a VA examination. The Veteran’s claims file, including this remand, should be made available for review by the examiner in conjunction with the examination. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. (a) After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s lumbar spine pain/lumbago is related to his military service. (b) In so opining the examiner should address the lay and medical evidence of record, including but not limited to the October 2013 radiological impression and the Veteran’s statement that his back pain began in military service and not prior to entering service. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lee, Associate Counsel