Citation Nr: 1807066 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 11-05 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for deformity of the fourth digit of the left hand, to include as secondary to costochondritis. 2. Entitlement to service connection for a back disability, to include as secondary to deformity of the fourth digit of the left hand and/or costochondritis. 3. Entitlement to an initial compensable evaluation for costochondritis. 4. Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran had active service from June 1971 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A May 2009 rating decision denied service connection for muscle spasms of the chest, a deformity of the fourth digit of the left hand, and a back condition. During the pendency of the appeal, a November 2015 rating decision granted service connection for costochondritis (previously characterized as muscle spasms of the chest). The Veteran appealed for a higher evaluation. The Veteran was provided with a hearing before the undersigned Veterans Law Judge on October 2017. A copy of the transcript has been associated with the claims file and reviewed accordingly. The issues of entitlement to an increased evaluation for costochondritis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The probative medical evidence of record fails to show a nexus between the Veteran's currently diagnosed thoracolumbar degenerative changes and his military service, to include service-connected costochondritis. 2. The probative medical evidence of record fails to show a nexus between the Veteran's currently diagnosed deformity of the fourth digit of the left hand and his military service, to include service-connected costochondritis. 3. On October 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew a previously appealed claim for non service-connected pension. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a back condition as the result of military service, to include any relationship to service-connected costochondritis, are not met. 38 U.S.C. §§ 1110, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. The criteria for establishing service connection for a back condition as the result of military service, to include any relationship to service-connected costochondritis, are not met. 38 U.S.C. §§ 1110, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 3. The criteria for withdrawal of the appeal for nonservice-connected pension benefits by the appellant have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303 (d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Service connection may be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a condition noted in service is not shown to be chronic, then a showing of continuity of symptomatology after service will be required to establish service connection. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic conditions listed in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity to symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309 (a) ). The Veteran's claimed diagnoses of degenerative arthritis in his back and left hand would be considered a chronic condition under the statute. 38 U.S.C. §§ 1112, 1113, 1137 (2012). Therefore, presumptive service connection, and service connection based on continuity of symptomatology, would be applicable. In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Back and Hand The Veteran contends that he currently has arthritis of the back and left hand that is related to military service. In particular, the Veteran has claimed that this condition is the result of his service-connected costochondritis. The Veteran has testified that it is accepted medical knowledge that costochondritis can cause arthritis in other joints. However, the Veteran has not provided an evidence of such findings or citations to any medical literature in this regard. A review of the Veteran's service treatment records fails to reveal any discussion of complaints or diagnosis of back or hand conditions, to include arthritis. There was no indication of any diagnosis of arthritis in either of these joints within one year of leaving military service. A review of the Veteran's post-service outpatient treatment records show that the Veteran has been treated for minimal degenerative changes of the thoracolumbar spine since and a left ring finger flexion contracture deformity since 1999. The Veteran has since been diagnosed with degenerative changes in the left ring finger as well. Although these records have shown on-going complaints and treatment for these conditions since that time, there has been no discussion of etiology relating either of these two conditions to military service. Additionally, there has been no discussion of these conditions within the context of treatment for the Veteran's costochondritis. The Veteran has had VA examinations for his costochondritis in 2014 and 2015. However, there was no discussion in these examinations of any associated disabilities, to include the Veteran's back or left hand. There was no discussion of the possibility of this condition leading to arthritis in any other joints of the musculoskeletal system. Having reviewed the complete record, the Board finds that service connection for a back condition or left hand condition is not warranted. It is noted that the Veteran does have a current disability, however, there is no indication of any in-service event, injury or disease upon which to base direct service connection. Here, the Veteran's service treatment records appear complete (which include entrance and separation examinations, immunization records, dental records, as well as medical histories), and they do not show that he was treated for or diagnosed to have any complaints of the back or left hand during military service. This is despite the fact that the Veteran was seen on numerous occasions for such ailments as chest pain, a urinary tract infection, and a left knee injury. Therefore, it is reasonable to presume that, had the Veteran also experienced symptoms of his back or left hand during military service, those would have also been reported and recorded in the service treatment records. Because such discussions are absent, it is clear that such events, injuries, or diseases never occurred. Therefore, due to the lack of a substantiated in-service event, injury, or disease, the Veteran's claim on a direct basis fails. It is noted that the Veteran does have service-connected costochondritis for the purposes of considering secondary service connection. Therefore, the inquiry turns upon a showing of a relationship between that disability and the Veteran's claimed back and left hand. Here, there is no medical evidence of record indicating that the Veteran's back or left hand has been caused or aggravated by the costochondritis. The only statements asserting a relationship to costochondritis are the Veteran's own lay statements. He, as a lay person, is competent to report an observable symptom. See Layno, 6 Vet. App. at 467-69 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, in this case, the question of whether the Veteran's back or left hand conditions are related to his service-connected costochondritis is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). Indeed, appropriate expertise is required to determine whether the Veteran's back and left hand conditions are the result of his costochondritis. In this case, the record is silent for any evidence to suggest that the Veteran has the appropriate training, experience, or expertise to render such findings. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Thus, while the Veteran is competent to report what he experiences, he is not competent to ascertain the etiology of his back or left hand conditions, as such is not readily subject to lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno, 6 Vet. App. at 465. To the extent that the Veteran has suggested medical authority indicating a link between these conditions, the record is silent for any such support. Thus, there is no probative evidence of any relationship between the Veteran's service connected disability and his claimed disorders. In these circumstances, service connection on a secondary basis is not warranted. Pension The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his appearance at the October 2017, has withdrawn the appeal with regard to his claim for nonservice-connection pension benefits and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER Entitlement to service connection for deformity of the fourth digit of the left hand, to include as secondary to costochondritis, is denied. Entitlement to service connection for a back disability, to include as secondary to deformity of the fourth digit of the left hand and/or costochondritis, is denied. The appeal of a claim for entitlement to nonservice-connected pension benefits is dismissed. REMAND In regard to the Veteran's claim for an increased evaluation for costochondritis, it is noted that the Veteran testified at his October 2017 that his condition had worsened to the point of have to take regular medication on a daily basis to cope with the pain. The Veteran was provided with VA examinations in 2014 and 2015. However, these examinations did not account for the use of pain medication by the Veteran at those times. As such, it appears that this record may reflect a worsening of the Veteran's disability and such must be properly determined. Accordingly, it is necessary to obtain a new examination in order to assess the current effects of the Veteran's costochondritis, to consideration of taking daily medication to treat. Additionally, any recent relevant treatment records, including VA records, should also be obtained. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c) (2017); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to identify any additional relevant records of treatment he wants considered in connection with this appeal. The identified records should be sought. In this regard, and whether or not the Veteran replies, appropriate efforts should be made to obtain all outstanding relevant VA treatment records. 2. The Veteran should be afforded a new VA examination to determine the nature, severity, and extent of his current costochondritis. The claims file should be made available to the examiner. Any indicated tests and studies should be accomplished and all clinical findings reported in detail. The examiner should consider the Veteran's lay statements in assessing any impairment. 3. Thereafter, readjudicate the appeal. If any benefit sought on appeal remains denied, furnish the appellant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and affords them the appropriate time period for response before the claims folder is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs