Citation Nr: 18151598 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 14-13 556 DATE: November 20, 2018 ORDER Entitlement to service connection for residuals of a right hand injury is denied. Entitlement to service connection for residuals of a right ankle injury is denied. REMANDED Entitlement to service connection for residuals of a head injury is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran does not have any residuals of a right hand injury that are etiologically related to service. 2. The Veteran does not have any residuals of a right ankle injury that are etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a right hand injury have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for residuals of a right ankle injury have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1976 to February 1982. This case is before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated September 2012, which denied the Veteran’s claims for entitlement to service connection for residuals of a head injury, bilateral hearing loss, tinnitus, residuals of a right hand injury, and residuals of a right ankle injury. The Veteran testified before the undersigned Veterans Law Judge during a March 2016 videoconference hearing. A transcript of that proceeding is associated with the claims file. The Board remanded this case in August 2016 to obtain certain VA treatment records and Social Security Administration (SSA) records, and afford the Veteran an opportunity to undergo additional VA examinations. The case has since been returned for appellate review following an October 2016 supplemental statement of the case in which the RO continued its denial of service connection after obtaining additional records and VA examinations in accordance with the Board’s remand instructions. The Board finds the RO substantially complied with those instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). However, as set forth in the REMAND section below, the Veteran’s August 2012 VA traumatic brain injury (TBI) examination was not conducted by a physiatrist, psychiatrist, neurologist, or neurosurgeon as required by VA’s Adjudication Procedures Manual, entitling him to an opportunity for a new VA examination. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the April 2014 statement of the case and October 2016 supplemental statement of the case, and are not repeated here in full. Neither the Veteran nor his representative raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding “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 or Bryant hearing deficiency argument). Thus, the Board need not discuss any potential issues in this regard. Finally, neither the Veteran nor his representative raised any other issues not addressed herein, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established on a presumptive basis for certain “chronic diseases” listed in 38 C.F.R. § 3.309(a) where the evidence shows a diagnosis manifest to a compensable degree within the presumptive period after service, or a continuity of symptomatology since service. 38 C.F.R. §§ 3.303(b), 3.307; see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). 1. Residuals of a right hand injury The Veteran has current diagnoses of degenerative arthritis of the right hand and carpel tunnel syndrome (CTS). See October 2016 VA examination. The issue before the Board is whether either of these conditions began during service, or are at least as likely as not related to an in-service injury, event, or disease. The Veteran contends he “mashed” or “smashed” both hands in service but no bones were broken and he underwent topical treatment. See October 2003 SSA Form 3368-BK; March 2004 private psychological evaluation. The Veteran’s service treatment records show he injured his right hand and fingers in February 1980 and received topical treatments of hydrogen peroxide and betadine. The Veteran underwent a VA hand and fingers examination in October 2016. The examiner opined the Veteran’s right hand degenerative arthritis and CTS were less likely than not incurred in or caused by service. Upon a review of the medical record, the examiner found no complaints or treatment of any right hand degenerative arthritis or CTS in service. The examiner opined the Veteran’s in-service injury was a self-limited condition and that his degenerative arthritis of his right hand “is more likely from his heavy duty civilian job after he got out from the service, as well as a part of generalized degeneration due to age.” The examiner also noted the Veteran’s earlier CTS diagnosis and surgical release treatment, and opined that condition more likely resulted from the Veteran’s post-service work as an electrician, a coal miner, and in construction, which required “repetitive extension and flexion of palm and wrist” and, being right-handed, resulted in his development of right hand carpal tunnel syndrome. The Board finds this opinion to be based on adequate rationale and sound reasoning, and thus highly probative evidence of the etiology of the Veteran’s right hand degenerative arthritis and CTS. The Veteran’s degenerative arthritis of the right hand, but not his CTS, is a “chronic disease” for purposes of presumptive service connection under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a). However, the Board finds the evidence of record does not indicate manifestations of degenerative arthritis in service or to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Walker, supra. As noted above, the October 2016 VA examiner opined the Veteran’s in-service hand injury was a self-limited condition. This is supported by the Veteran’s January 1982 service exit physical in which he reported no swollen or painful joints, arthritis, rheumatism, or bursitis, and which is otherwise silent for any right hand disability symptoms, as well as the absence of any complaints of stiffness. The Board further finds that continuity of symptomatology is not established because the record contains no competent or credible lay or medical evidence of any right hand disability symptoms from the Veteran’s February 1982 separation from service until in or about November 2003, more than 20 years after service, when the Veteran reported he had stiffness and tingling sensation in his hands. 38 C.F.R. § 3.303(b); see Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Service connection for a right hand disability, to include degenerative arthritis and CTS, is not warranted. 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 the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Residuals of a right ankle injury The Veteran has a current diagnosis of degenerative arthritis of the right ankle, which he contends is related to an in-service injury. The issue before the Board is whether this condition began during service, or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records show he complained in February 1980 of pain in his right ankle after a fall on some ice. The Veteran was prescribed aspirin and a cold pack. His service treatment records show no chronic residuals of that injury, nor any chronic right ankle condition, disability, or treatment. His service treatment records also show a complaint of a right shin contusion sustained in September 1981 from a fall into a pit, but those records do not reflect any contemporaneous complaint of any right ankle condition. In October 2016, the Veteran underwent a VA examination. The examiner noted a diagnosis of degenerative arthritis. The Veteran reported a post-service work history of working in an underground coal mine, in construction, and as an electrician and truck driver. He reported he broke his right ankle in 2014, which was surgically repaired. The VA examiner opined the Veteran’s in-service ankle injury was an “acute and self-limited condition,” and that his degenerative arthritis of the right ankle is more likely from his “heavy duty” civilian job after he left active service, his broken right ankle in 2014, as well as a part of generalized degeneration due to age. The examiner based his opinion on a physical examination of the Veteran and a review of the Veteran’s claims file. The Board finds this opinion to be based on adequate rationale and sound reasoning, and thus highly probative evidence of the etiology of the Veteran’s right ankle condition. The Veteran’s diagnosed degenerative arthritis is a “chronic disease” for purposes of presumptive service connection under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a). However, the Board finds the evidence of record does not indicate manifestations of the disease in service or to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Walker, supra. As noted above, the 2016 VA examiner opined the Veteran’s in-service ankle injury was an “acute and self-limited condition.” This is supported by the Veteran’s January 1982 service exit physical in which he reported no foot trouble, swollen or painful joints, or arthritis, rheumatism, or bursitis. The Board further finds that continuity of symptomatology is not established because the record contains no competent or credible lay or medical evidence of any right ankle disability symptoms from the Veteran’s February 1982 separation from service until December 2001, when he underwent functional testing following a lower spine injury and “right ankle dysfunction reported” was noted in connection with forward and backward heel and toe walk testing. 38 C.F.R. § 3.303(b); see Maxson, supra. Subsequent records also generally show an absence of continuity of any right ankle symptoms. In October 2003, the Veteran applied for SSA disability benefits. Records associated with that application show no contention or diagnosis of any right ankle disability. In March 2004, the Veteran underwent a private medical evaluation in which his reported past medical history did not include any right ankle condition. In October 2009, the Veteran underwent a SSA disability evaluation examination. His list of complaints and functional limitations did not include, nor was he diagnosed with, any right ankle condition, and range of motion testing showed no limitations. Service connection for residuals of a right ankle injury is not warranted. 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 the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. REMAND The Veteran sustained an in-service head injury when a cable snapped and he was hit in the back of the head while assisting with the recovery of a piece of equipment stuck in mud. The Veteran contends he was knocked to the ground and rendered unconscious, and that he has suffered from residuals including chronic headaches, confusion, and memory loss since the incident. The Veteran underwent a VA psychiatric examination in August 2012. That examiner diagnosed the Veteran with major depression with alcohol dependence and substance abuse, but made no finding as to the etiology of those conditions. The Veteran also underwent a VA TBI examination in August 2012. The examiner, a physician’s assistant, diagnosed him with TBI and noted a variety of residuals, to include headaches, hearing loss, tinnitus, and a mental disorder (including emotional, behavioral, or cognitive). Although she checked the box that the claimed condition was at least as likely as not related to service, she also stated that she agreed with the VA psychiatric examiner who had concluded that the majority of the Veteran’s symptoms are secondary to his mental health condition. Not only is her stated rationale completely inconsistent with her conclusion the condition is related to service, but that examination is not valid because it was not conducted by a physiatrist, psychiatrist, neurologist, or neurosurgeon as required by VA’s Adjudication Procedures Manual. See M21-1, III.iv.3.D.2.j. In accordance with equitable relief granted by VA’s Secretary in May 2016, the Veteran is entitled to an opportunity for another examination by one of the aforementioned specialists to determine the existence and etiology of any TBI. As the Veteran is to be offered an opportunity for new VA examinations, upon remand the RO should also update the claims file with all VA treatment records since July 2016 (the latest appearing in the electronic claims file).   The matters are REMANDED for the following action: 1. Obtain and associate with the record the Veteran’s complete VA medical records from July 2016 to the present. 2. DO NOT SCHEDULE the following examinations until the VA records have been updated in the file. 3. Schedule the Veteran for a VA TBI examination with a neurologist, psychiatrist, physiatrist, or neurosurgeon. If the scheduled examiner finds it appropriate, a separate psychiatric evaluation should be done. After a review of the claims file and completion of the TBI examination report, the examiner should respond to the following: (a) Does the Veteran have a diagnosis of a TBI? The examiner should address the Veteran’s in-service head injury. (b) If a TBI is diagnosed, is it at least as likely as not (50 percent or greater probability) the Veteran’s TBI began in or is otherwise related to service? i. If so, is it at least as likely as not (50 percent or greater probability) the Veteran’s diagnosed bilateral hearing loss and/or tinnitus is etiologically-related to the diagnosed TBI/in-service head injury? ii. If so, is it at least as likely as not (50 percent or greater probability) that any diagnosed headaches disorder is etiologically-related to the diagnosed TBI/in-service head injury? iii. If so, is it at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder is etiologically-related to the diagnosed TBI/in-service head injury? iv. If so, does the Veteran have any other diagnosed conditions or residuals that are at least as likely as not (50 percent or greater probability) etiologically-related to the diagnosed TBI/in-service head injury? A complete rationale for all opinions rendered is required. If the medical professional is unable to provide any required opinion, he or she should explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel