Citation Nr: 1825473 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 14-31 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for a neck disorder. 2. Whether new and material evidence has been submitted to reopen the claim of service connection for a left 5th finger fracture disorder. 3. Whether new and material evidence has been submitted to reopen the claim of service connection for a wrist disorder. 4. Entitlement to service connection for a neck disorder (also claimed as upper spine) as secondary to lumbar spondylosis and displacement of lumbar disc without myelopathy. 5. Entitlement to service connection for a left fifth finger fracture. 6. Entitlement to service connection for diabetes mellitus type 2. 7. Entitlement to service connection for a left wrist disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Rocktashel, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1981 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2013 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. An October 2008 rating decision denied service connection for a neck disorder, a left 5th finger disorder and a left wrist disorder. The Veteran did not appeal or submit new and material evidence. In April 2011 he submitted a correspondence that the RO interpreted as a claim of service connection for these conditions. The Board, however, must decide initially whether evidence to reopen the claim has been received without deference to any RO decision concerning reopening. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Accordingly, the issues of reopening are reflected on the title page. In that regard, the Board finds there is new and material evidence to support reopening for the pertinent issues. For example, new VA examinations and medical opinions were provided in September 2011 and September 2012. Thus, reopening of these claims is warranted. The issues of service connection for a neck disorder and service connection for diabetes mellitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an October 2008 rating decision, the RO denied the claims of service connection for a neck disorder, service connection for a left fifth finger disorder, and service connection for a left wrist disorder. The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year period. 2. Evidence received since the October 2008 decision relates to a previously unestablished fact necessary to substantiate the claim. 3. A current left fifth finger disability is not shown. 4. A current left wrist disability is not shown. CONCLUSIONS OF LAW 1. The October 2008 rating decision that denied service connection for a neck disorder, a left fifth finger disorder, and a left wrist disorder is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.156, 20.1103 (2008). 2. Evidence received since the October 2008 decision is new and material and the claims of service connection for a neck disorder, a left fifth finger disorder, and a left wrist disorder are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. A left fifth finger disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. A left wrist disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the Veteran contends that the VA examinations he received are subject to disagreement because the examiner(s) were not qualified orthopedic doctors. The Board notes that a VA examiner need not be Doctors of Medicine (M.D.) or specialists in the relevant field in order for VA to fulfill its duty to provide an adequate medical examination. The United States Court of Appeals for Veterans Claims has expressly held that a competent VA examiner is one who is qualified to render medical diagnoses and opinions, regardless of whether he or she is a doctor, nurse practitioner, or physician's assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Hence, even if a VA examiner is not specifically an M.D. or a Doctor of Osteopathic Medicine (D.O.), it does not disqualify him or her from furnishing medical opinion evidence in this case. Ultimately, VA examiners are presumed to be competent - and VA examinations, in turn, are assumed to be adequate - absent specific evidence to the contrary. See Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner); accord Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, under the presumption of regularity in the administrative process, the Board is entitled to assume the adequacy of VA examinations absent specific evidence to the contrary). Notably, the Veteran did not otherwise indicate why a new medical professional with different qualifications was needed for the supplemental opinion on the issue at hand. See Parks v. Shinseki, 716 F.3d 581, 585-86 (Fed. Cir. 2013); Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (citing Rizzo, 580 F.3d at 1290-91). Otherwise, the Board notes that neither the Veteran nor his representative have 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 Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). Analysis The Veteran seeks service connection for a wrist and left fifth finger disorder. Specifically, the Veteran experiences pain, numbness, slow typing, and other symptoms described further below. This claim stems from an in service injury on a Navy ship in which the Veteran was blown into a catwalk, injured his hand, and was placed in a cast for some time. Service treatment records do confirm such an incident. Records from October 28, 1984 show the Veteran was blown into catwalk. He hit both palms on a railing. Both hands and the left wrist were examined. X-rays showed a fracture of 4th finger of the left hand. Other evidence shows a right, not left, hand injury when a missile rack fell on it. The August 1985 report of medical examination at separation showed upper extremities were normal on clinical evaluation. The August 1985 report of medical history noted the fracture of the left fourth metacarpal. Post service, June 2005 private treatment found, as to the left hand, there was no erythema, ecchymosis or obvious deformity noted. Range of motion was intact. Grip strength was intact. Subsequently, osteoarthritis of the left fourth metacarpal was found. A January 2006 VA examination report noted the history of his left hand injury. The report noted that X-rays revealed a fracture of the "5th" metacarpal. At the time, the Veteran reported his left hand swells and continues to flare-up with pain. Symptoms reported by the Veteran included decreased strength and dexterity, pain, limited motion, swelling and stiffness. On examination, left hand strength and dexterity was abnormal. Grasping, pushing, probing, and writing were mildly affected. Pulling and twisting were moderately affected. Touching, expression, and "other" were normal. Range of motion testing of the left little finger joints showed active range of motion of 0 to 70 and 0 to 80 degrees. Pain began at one degree and continued throughout the range of motion. The examiner remarked as to the examination results, which included examination of all fingers of each hand, that there was pain on motion, and there was an increase in pain, weakness, fatigue and lack of endurance after repetitive motion. There was no increase in incoordination after repetitive motion. There was 0 degrees loss of range of motion after repetitive motion. X-rays of the left hand were normal. The examiner found that any fracture to the 5th left metacarpal, as per the Veteran's history report, had healed with no significant effects on the Veteran's usual occupation. The disability was found to impact the Veteran's occupational activities through decreased manual dexterity, problems with lifting and carrying, decreased strength, and pain. February 2008 private treatment showed left hand pain and numbness with typing and certain movements, with a constant ache. May 2009 VA treatment records show left hand pain. At a September 2011 VA hand and fingers examination, the Veteran reported pain in the medial part of his hand from the wrist to the ring and fifth finger which was constant. He stated that the pain was so bad that he could not grip sometimes. It kept him from using a knife for example. The Veteran fractured the left fifth metacarpal in 1985, according to his report. His hand was in a cast for 6 weeks. On examination, there was no limitation of motion or evidence of painful motion for any fingers or thumbs. There was no gap between the thumb pad and the fingers. Other clinical tests with respect to motion showed normal range and no pain. Imaging studies were available and were normal. The examiner found no functional loss for the left hand, thumb or fingers. The Veteran reported that his hand, thumb, or finger conditions impacted his ability to work in that he had trouble picking up rubber molds or cuts of rubber. He had trouble driving, opening doors, and typing. Upon the September 2012 VA wrist examination, it was noted that the Veteran had previously been diagnosed with a wrist condition, but there was no evidence of a wrist condition at the time of the September 2012 examination. The Veteran reported stiffness in the medial area of his left hand, which he believed to be related to his left hand injury in service. It was reported not to limit functioning. With respect to the September 2012 VA hand and fingers examination, the examiner reported the history of injury in service when the Veteran was blown down into a catwalk. The Veteran stated the fracture was written up as the fourth metacarpal, but he saw the X-ray and it was the little finger. The Veteran reported that when he uses his hand, it swells up across the lateral wrist and aches. When he has to type a lot, it will take him a long time. He has pain in the left fourth and fifth fingers that feels like an aching, burning, throbbing type of pain. His pain and stiffness slow down his typing. On examination, there was no abnormality, no loss of range of motion, and no evidence of painful motion. The examiner found there was no left fifth finger disorder. VA treatment records for January 2015 show the full range of motion of the hands and wrists. VA treatment records for October 2015 noted the Veteran reported pain all the time in wrist and fingers. On examination, full range of motion was present in the hands and wrists. Based on a review of the record, the Board finds that service connection for a left wrist and a left little finger disorder is not warranted. The Board finds that in both cases, the preponderance of the evidence shows that there is no current disability. The Board recognizes the recent decision in Saunders v. Wilkie that "pain alone can serve as a functional impairment and therefore qualify as a disability." No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). However, the Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Id. Rather, the Court stated "[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity." Id. In this case, the Board acknowledges the Veteran's subjective reports of pain, stiffness, swelling, and fatigue. However, the Board finds these symptoms are not severe enough to reach the level of functional impairment of earning capacity. The Board bases its finding on the several normal clinical evaluations of range of motion and other normal clinical evaluations on the record. VA examiners in September 2011 and September 2012 found no functional impairment on clinical evaluation and no objective evidence of pain on motion. Similarly, January 2015 and October 2015 VA treatment examinations showed normal ranges of motion. Thus, at least four separate examinations of the little finger, and three of the wrist show no loss of range of motion. VA examinations show no objective evidence of other functional impairment. While the January 2006 VA examination showed certain functional limitations, this examination was outside the appeal period. Furthermore, the examination is outweighed by the other medical evidence to the contrary. The Board also acknowledges that some examiners noted functional impairment was present, even on VA examinations concluding there was no current disability. For instance, the September 2011 hand and fingers examination found the Veteran had trouble picking up rubber molds or cuts of rubber. He had trouble driving, opening doors, and typing. The September 2012 examination of the little finger found an impact on the ability to work in that the little finger condition slows down the Veteran's typing. The Board notes that these functional impacts are solely based upon reporting by the Veteran. As will be discussed below, the Board finds the Veteran's reports of symptoms are afforded diminished credibility. As to the Veteran's lay statements, the Board notes that the Veteran is already service-connected for a left fourth finger disorder (metacarpal), which was fractured in service. The presence of this disorder casts doubt on the lay statements of the Veteran attributing his hand symptoms to the left little finger and the left wrist, rather than the left fourth metacarpal which is already service-connected. Thus, the Board finds that the reports of the Veteran's symptoms and functional impact as to the left little finger and wrist are somewhat diminished in credibility. Although the Veteran contends he actually fractured his left little finger, the Board finds this statement is contradicted by the service medical records, which is the most probative evidence with respect to the in-service injury. X-ray reports clearly show it was the fourth finger, and more specifically, the metacarpal, which is a bone in the hand. Accordingly, the Veteran's lay statements are shown to be unreliable. In general, the Board finds the Veteran's lay statements carry less probative weight than the medical evidence, such as the VA examination reports and treatment records. The medical evidence was recorded after objective clinical examinations of the Veteran by knowledgeable, skilled, and experienced medical professionals. The Veteran is not shown to have similar levels of knowledge, skill and experience. Thus, when viewing the evidence as a whole and applying the respective credibility and probative weight assignments, the Board finds that, while the reported symptoms may have some occasional impact on the Veteran's functioning, their severity does not rise to the level of the functional impairment required to constitute a disability under VA regulations. Although pain and ache may be constant, it does not functionally impair the little finger and wrist. Accordingly, service connection for a left little finger and left wrist condition is not warranted. ORDER The application to reopen the claim of service connection for a left little finger disorder is granted. The application to reopen the claim of service connection for a left wrist disorder is granted. The application to reopen the claim of service connection for a neck disorder is granted. Service connection for a left little finger disorder is denied. Service connection for a left wrist disorder is denied. REMAND The Board finds that further development is required prior to adjudicating the Veteran's remaining claims. See 38 C.F.R. § 19.9 (2017). Specifically, with respect to the Veteran's claims of secondary service connection, the medical opinions did not address whether the Veteran's neck and diabetes disorders are aggravated by the service-connected lumbar spine disorder. Additionally, as to the diabetes claim, the Veteran has asserted that his diabetes could be from asbestos and nuclear radiation exposures while on board the U.S.S. Nimitz. It does not appear from the claims file that development was undertaken on these theories of the claim. On remand, development should be performed relating thereto. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to describe the circumstances under which he claims he was exposed to asbestos and/or ionizing radiation while on board the U.S.S. Nimitz. If he provides usable information, attempt to verify the Veteran's claimed exposures and perform appropriate development of the claim. With regard to his claimed ionizing radiation exposure, ask the Veteran to submit any competent scientific or medical evidence showing a link between ionizing radiation exposure and diabetes mellitus as set forth in 38 C.F.R. § 3.311(b)(4). 2. Return the Veteran's claims file to the examiner who conducted the February 2014 neck examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's neck disability began during active service; is related to an incident of service; or. if arthritis is diagnosed, began within one year after discharge from active service. The examiner should take note of a January 1982 incident in which the Veteran hit his head, and an August 2016 opinion from a private practitioner relating the injury to his current neck pain. b. Whether it is at least as likely as not that the Veteran's neck disability was proximately due to or the result of his service-connected lumbar spine disability. c. Whether it is at least as likely as not that the Veteran's neck disability was aggravated beyond its natural progression by his service-connected lumbar spine disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Return the Veteran's claims file to the examiner who conducted the September 2012 diabetes examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disability began during active service, is related to an incident of service, or began within one year after discharge from active service. b. Whether it is at least as likely as not that the Veteran's diabetes was proximately due to or the result of his service-connected lumbar spine disability. c. Whether it is at least as likely as not that the Veteran's diabetes was aggravated beyond its natural progression by his service-connected lumbar spine disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs