Citation Nr: 1828232 Decision Date: 05/08/18 Archive Date: 05/18/18 DOCKET NO. 13-20 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right hand disability, claimed as numbness and tingling. 2. Entitlement to service connection for a left hand disability, claimed as numbness and tingling. 3. Entitlement to service connection for a left foot disability, claimed as numbness and tingling. 4. Entitlement to service connection for residuals of surgical removal of vocal cord granulomas, to include as secondary to gastroesophageal reflux disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1985 to December 1986, February 1991 to May 1991, February 1995 to August 1995, January 2002 to July 2002 and August 2002 to July 2003 as a member of the Army Reserves and Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Montgomery, Alabama. In August 2014, the Veteran testified via video before a Veterans Law Judge. A transcript of this hearing has been associated with the claims file. These issues were previously presented to the Board in June 2015, at which time they were remanded for additional development. For the issues decided herein, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally before the Board in June 2015 were the issues of service connection for disabilities of the right hip, right foot, right shoulder, and lumbosacral spine, as well as for gastroesophageal reflux disease and residuals of a coccygeal fracture. In an October 2015 rating decision, service connection was granted for each of these disabilities. Because the appellant was awarded service connection for these disabilities, they are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The issue of service connection for a left foot disability 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 Veteran does not have a current disability of either hand which began in service or may be presumed to have been incurred therein, has been chronic since service separation, or results from an in-service disease or injury. 2. The Veteran does not have a current disability resulting from surgical removal of vocal cord granulomas. CONCLUSIONS OF LAW 1. The criteria for the award of service connection for a right hand disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for the award of service connection for a left hand disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for residuals of surgical removal of vocal cord granulomas have not been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the present case, there is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Likewise, there is no indication in the record of a failure to assist the Veteran in the development of his claim. See Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to VA's duty to assist). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA treatment records, and any identified private treatment records have all been obtained. The Veteran was afforded VA medical examinations and opinions on several occasions for the disabilities on appeal. The VA and private medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of the claimed current disability sufficient to decide the claim. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. Service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Bilateral hands disabilities The Veteran seeks service connection for disabilities of the bilateral hands, characterized by numbness and tingling. He reports he has disabilities of both hands resulting from his military service, which included numerous parachute jumps. Review of the service treatment records indicates that in March 2002, the Veteran was seen for bilateral elbow pain following physical training. Bilateral epicondylitis (tennis elbow) was diagnosed and he was given medication. A June 2003 line of duty report indicated the epicondylitis had resolved by that time. The service treatment records are otherwise negative for any treatment for or diagnosis of a disability of either hand or wrist, and none was reported at service separation. Based on the above, the Board must conclude a chronic disability of either hand was not incurred in service, as the Veteran did not seek treatment for the same either during service or for several years after service separation. This lengthy period without complaint or treatment is, among other factors, evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). While the Veteran did seek treatment for pain of both elbows during service, this injury appears to have been acute and transitory, as it was not noted on service separation in 2003, and the Veteran did not report a disability of the hands at that time. Additionally, the record does not reflect competent evidence of a nexus between any in-service disease or injury, and a current disability. On VA examination in May 2009, the Veteran reported occasional numbness of the right hand. A disability of either hand was not diagnosed at that time, however. Another VA examination was afforded the Veteran in August 2015, at which time he reported a history of bilateral pain, numbness, and tingling of the forearms, wrists and hands beginning in approximately 2001. He denied taking any medication or undergoing surgeries for his hands. On physical examination, there was no limitation of motion or other impairment of either hand or wrist. Grip strength and sensation were also within normal limits for both hands. A disability of either hand was not diagnosed at that time. A current disability is central to any service connection claim, and in the absence of competent evidence of any current cold injuries in the claimed areas, service connection for such disorders must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); but see McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). The Board acknowledges the recent case of Saunders v. Wilkie [No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018)], in which the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the term "disability" as used by 38 U.S.C. § 1110 refers to the "functional impairment of earning capacity, not the underlying cause of said disability." Id. at 10. Thus, where a claimant demonstrates functional impairment impacting earning capacity, disability is established regardless of whether a diagnosis has been established in the underlying record. In the present case, the Veteran has reported pain, numbness, and intermittent loss of grip strength in both hands. At his August 2014 hearing, he testified that his bilateral hand disabilities result in functional impairment. Furthermore, the Veteran is competent to report such observable symptomatology as pain and numbness of the upper extremities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Nevertheless, the competent evidence of record is against any nexus between any current disability of the hands and service, to include any disease or injury therein. While the Veteran has reported onset of his bilateral hand symptoms during service, he did not seek treatment for such symptoms at that time, even while he was seeking treatment for other disabilities. He also did not report such symptoms at service separation. As such, his contentions of in-service onset are not considered credible. Finally, no competent examiner has indicated any nexus between the Veteran's current symptoms of the bilateral hands and any disease, injury, or other incident of service. Therefore, in consideration of the foregoing, the Board finds that the preponderance of the evidence is against the claims, and service connection for disabilities of either hand is not warranted. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Residuals of granulomas The Veteran seeks service connection for post-operative residuals of granulomas of the larynx and vocal cords. He has reported onset of granulomas of the throat during service, and/or as the result of his service-connected gastroesophageal reflux disease. Review of the medical records indicates the Veteran underwent surgical removal of a tumor of the larynx in June 1999 at a private clinic. Examination of the tumor indicated it was benign. This operation was without complications and no post-operative residuals were noted in the follow-up records. In October 2002 and March 2004, the Veteran again underwent surgical removal of granulomas of the right posterior larynx. No complications were noted with these operations, and these growths were not found to be malignant. On VA examination in October 2009, the Veteran acknowledged that there had been no complications or recurrences of his granulomas since 2004. Likewise, on VA examination in August 2015, he again denied any complications or recurrences of his granulomas. Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer, 3 Vet. App. at 225 (1992). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); but see McClain, 21 Vet. App. at 319 (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). In the present case, service connection for residuals of granulomas of the larynx must be denied, as no current disability has been presented. While the Board concedes that he had surgical removal of granulomas on at least three occasions, in 1999, 2002, and 2004, these operations were without complications and no post-operative residuals have been noted. Additionally, the Veteran conceded on VA examinations in October 2009 and August 2015 that he has not experienced complications or recurrences of these granulomas since the 2004 operation. In the absence of a current disability for which service connection may be awarded, the Board need not address the issue of whether the cited granulomas were incurred in service or as the result of a service-connected disability. Because the evidence does not support the finding that the Veteran has a current disability related to his granulomas surgically removed between 1999 and 2004, the criteria for service connection have not been met. See Brammer, 3 Vet. App. at 225. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for residuals of granulomas, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a right hand disability is denied. Service connection for a left hand disability is denied. Service connection for residuals of surgical removal of vocal cord granulomas is denied. REMAND Service connection - Left foot The Veteran seeks service connection for a left foot disability. He asserts a left foot disability was incurred in service as a result of multiple parachute jumps and other strenuous physical activity. Pursuant to the Board's prior June 2015 remand order, the Veteran was afforded a VA examination. On VA examination of the Veteran's left foot in August 2015, no disabilities of the left foot were noted, and thus no nexus opinion was provided, as the examiner found no evidence of a current disability. The Board finds this examination and opinion inadequate, however. On a prior VA examination in October 2009, the Veteran was observed to have a large blanching erythematous tender bunion on the medial first metatarsophalangeal joint of the left foot. An October 2009 VA X-ray of the Veteran's left foot indicated cystic changes in the head of the metatarsal bone, possibly due to gouty arthritis. The final diagnosis was of gouty arthritis of the left metatarsophalangeal joint. The August 2015 VA examination did not include X-rays, and arthritis was therefore not considered. A subsequent January 2016 opinion considered the arthritis and pes planus but provided a conclusory opinion. Accordingly another examination is required. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA orthopedic examination to assist in determining the nature and etiology of any current disability of the left foot. The claims file should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the record in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. The examiner is also reminded that the Veteran underwent multiple parachute jumps during service. All indicated studies should be performed. A rationale for all opinions expressed and a discussion of the facts and medical principles involved should be provided. After review of the file and examination of the Veteran, the VA examiner should offer the following opinion: Is it as likely as not (a 50 percent or greater probability) that any currently diagnosed disability of the left foot had its onset during service, or is due to or the result of an in-service disease, injury, or circumstances of service, to include parachute jumps? In providing the requested opinions, the examiner is reminded that the Veteran is competent to testify regarding such observable symptomatology as joint pain or other observable symptoms. A complete rationale for any provided medical opinion is necessary. 2. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant 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). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs