Citation Nr: 18153935 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-43 702 DATE: November 28, 2018 ORDER Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for a left hand disability is denied. Entitlement to service connection for headaches is denied. FINDINGS OF FACT 1. The competent and credible evidence does not demonstrate that the Veteran has a right hand disability that is related to his service. 2. The competent and credible evidence does not demonstrate that the Veteran has a left hand disability. 3. The competent and credible evidence does not demonstrate that the Veteran has a headache disability that is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hand disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a left hand disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1998 to March 2004 and from January 2006 to June 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. Jurisdiction is now with the RO in Columbia, South Carolina. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). 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). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1993). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d) (2017). The first requirement for any service connection claim is evidence of a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was “noted” during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 1. Entitlement to service connection for a right and a left hand disability The Veteran contends that he has a right hand and a left hand disability, each, due to his military service. Service treatment records show that in September 2000, the Veteran sustained a puncture wound of the thenar muscle of his right hand. Right and left range of motion testing was within normal limits. He was provided with antibiotics, wound care and dressing changes. He was seen the following day and reported the pain was much better and there were no signs of infection. Subsequent STRs are negative for complaints, findings or treatment for a right hand disability. STRs are negative for complaints, findings or treatment for a left hand disability. In July 2012, the Veteran submitted a claim for service connection for bilateral hand pain and for headaches. In a July 2013 VA examination for hand and finger conditions, the Veteran was diagnosed with a healed puncture wound of the right hand, and no objective evidence of a left hand condition. The Veteran stated he sustained a puncture wound to the right thenar area in 2000 while working with a screwdriver. He was treated with pain medications and wound dressing. The Veteran complained of intermittent left hand pain which began in Iraq without associated injury. The examiner noted that the Veteran’s right hand disability resulted in difficulty using tools in his job as a mechanic; however, limitation in range of motion, tenderness or pain to palpation, decreased muscle strength, ankylosis, or arthritis of the right hand were not noted. The examiner opined that it was less likely than not that the Veteran’s right hand disability was due to his military service. The examiner noted the Veteran’s in-service right hand injury, but noted that the evidence did not indicate any long term sequelae from this injury. Additionally, he found that there was no evidence for a chronic hand condition in service. Based on a careful review of the subjective and clinical evidence demonstrates that the preponderance of the evidence weighs against the claims for service connection a right hand disability and a left hand disability. With regard to the left hand, the July 2013 VA examiner specifically found that there was no objective evidence of a left hand disability. The Board acknowledges that the Veteran reported pain in his left hand since Iraq. In a recent case, Saunders v. Wilkie, 886 Fed. Cir. 1356 (2018), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that pain can constitute a disability under 38 U.S.C. § 1110. However, the Federal Circuit did not hold that the Veteran could demonstrate service connection simply by asserting subjective pain. Rather, to establish a disability, the Veteran's pain must amount to a functional impairment. The Federal Circuit held that to establish the presence of a disability, the Veteran will need to show that his or her pain reaches the level of a functional impairment of earning capacity. Id. at 28. The Board finds that in this case, the decision in Saunders can be distinguished from the facts of this case. Here, the Veteran has merely asserted that he has had pain, there is no evidence that such pain results in any functional impairment due to any subjective symptoms of left hand pain. As such, the Veteran's left hand pain does not amount to a functional impairment of earning capacity, and Saunders is not applicable in this case. In sum, the Veteran has not presented, identified, or alluded to the existence of any post-service medical evidence of a diagnosis of a left hand disability and the evidence of record does not show that the Veteran has a left hand disability. Here, no underlying disability has been clinically diagnosed during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran is certainly competent to report his history of left hand pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran has not presented any competent and credible evidence of a current diagnosis for a left hand disability, and the available evidence does not support that the Veteran has any persistent symptomatology that would suggest that he has an underlying chronic disability. Thus, the claim for service connection for a left hand disability is denied. With regard to the right hand, the evidence does not show that the Veteran has a current right hand disability due to his in-service right hand injury. The Board finds that the July 2013 VA examination is the most probative evidence as to the etiology of the Veteran’s right hand disability. This opinion was based on a thorough review of the Veteran’s medical records, an in-person examination, and supported by a fully articulated rationale. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board finds that the persuasive evidence of record shows that the Veteran’s right hand disability is not etiologically related to service. Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for a right hand disability. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board notes that lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the diagnosis and etiology of right hand disabilities, the issue is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran has a right hand disability related to service, the Veteran lacks the medical expertise to provide such opinion. In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for a right hand disability. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for headaches The Veteran contends that his headaches is due to his military service. Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding that service connection is warranted for headaches. There is no indication that the Veteran reported headaches while in-service or within close proximity of service. There is no evidence that the Veteran has received post-service treatment for or been diagnosed with a headache disability. The first notation of complaints of headaches is in July 2012 when the Veteran submitted a claim for VA benefits for headaches, more than five years after his second period of active service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000); Shaw v. Principe, 3 Vet. App. 365 (1992). Significantly, the Veteran has not presented or identified any medical opinion that provides a link between his headaches and active service. The Board has considered the Veteran's lay statements. Although the Veteran is competent to describe the observable symptoms of headaches he is not competent to opine as to the etiology of those headaches or symptoms, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran's lay opinion that his headaches were caused by his active service, does not constitute competent medical evidence and lacks probative value. The Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for headaches. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel