Citation Nr: 1807608 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-13 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a right hand disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Navy from July 1994 to April 1998. He had subsequent service in the United States Navy Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran does not have a current right hand disorder that manifested in service or that is otherwise related to his military service, and he has not been diagnosed with arthritis. CONCLUSION OF LAW A right hand disorder was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, there is no evidence showing that the Veteran has one of the enumerated diseases, such as arthritis. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for a right hand disorder. The Veteran's service treatment records show that he sought treatment in April 1997 for right knuckle pain. He reported that he had been throwing paper towels and hit his knuckle on a steel bar. Following an examination, he was assessed as having a mild contusion to the right hand. He was instructed to ice the affected area and given Motrin. The remainder of his service treatment records are negative for any complaints, treatment, or diagnosis of a right hand disorder. He was later provided a separation examination in April 1998 at which time he reported having swollen or painful joints with a history of right fifth metacarpal trauma. However, a clinical examination found his upper extremities to be normal at that time. Moreover, there is no medical evidence showing that the Veteran sought treatment for his right hand prior to April 2013. At that time, VA medical records indicated that he denied having any physical condition, except for swelling of the right fifth metacarpal of the right hand from time to time. In fact, a January 2000 examination only noted a left wrist condition, and he denied having a medical history of painful or swollen joints and a bone, joint, or other deformity. There was no mention of his right hand in that report. In addition, there is no objective x-ray evidence of arthritis within one year after his separation from service. In fact, the November 2013 VA examiner indicated that there was no documentation of degenerative or traumatic arthritis. The Board does acknowledge the Veteran's statements that he has continued to have right hand problems since service. Lay persons are competent to report observable symptoms, such as problems since military service. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although the Veteran is competent to report symptoms since service, the Board finds that such statements are not reliable or credible. The allegations are inconsistent with the contemporaneous record. As discussed above, the Veteran was documented as having right knuckle pain in service, but subsequent examinations in April 1998 and January 2000 found his right hand to be normal. Thus, there was actually affirmative medical evidence showing that he did not have a right hand disorder at the time of his separation from service (rather than a mere absence of treatment or documentation). The Board also finds it significant that the Veteran has reported left wrist problems during subsequent evaluations, including the January 2000 examination, but made no mention of a right hand disorder. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana, 24 Vet. App. at 440 (Lance, J., concurring) (citing for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). Moreover, the Veteran's statement in April 2013 that he had swelling from time to time suggests that any symptomatology was intermittent rather than continuous since service. For these reasons, the Board finds that a right hand disorder did not manifest in service or for many years thereafter. In addition to the lack of evidence showing that a right hand disorder manifested during service or within close proximity thereto, the weight of the evidence of record does not otherwise link a current condition to service. In this regard, a November 2013 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service event, injury, or illness. In so doing, she acknowledged that the Veteran sought treatment for right knuckle pain in April 1997, but noted that there was no documentation of any other injury or treatment until April 2013. The examiner also found it significant that the Veteran denied any problems with his right hand during his separation examination and the January 2000 examination. She further noted that x-rays were negative and that the current examination was completely normal except for some mild tenderness over the fifth metacarpal joint. The examiner had also observed that the Veteran had been working as a marine technician fixing outboard boats since his military service, which involved working with his hands a lot and bothered his hand. There is no medical opinion otherwise relating a current right hand disorder to the Veteran's military service, including the injury and symptomatology therein. The Board does acknowledge the Veteran's own statements that he has a current right hand disorder related to his military service. However, even assuming the Veteran is competent to opine on this matter, the Board finds that the specific opinion of the VA examiner is of greater probative weight than the more general lay assertions in this regard. The VA examiner has training, knowledge, and expertise on which she relied to form the opinion, and she reviewed the claims file, performed a physical examination, considered the reported medical history, and provided rationale. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a right hand disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a right hand disorder is not warranted. ORDER Service connection for a right hand disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs