Citation Nr: 20009649 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-55 777 DATE: February 6, 2020 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for right pinky finger amputation disability is reopened. Entitlement to service connection for a right pinky finger amputation disability is denied. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to service connection for a right pinky finger amputation disability was most recently denied in a May 2014 rating decision. The Veteran did not file a Notice of Disagreement or submit new and material evidence within one year of the notice of decision. 2. Evidence received since the May 2014 rating decision is neither cumulative nor repetitive of facts that were previously considered and raises the possibility of substantiating the claim of service connection for a right pinky finger amputation disability. 3. The surgery of a right pinky finger amputation at the proximal interphalangeal joint performed during service was elective, and did not result in any disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The May 2014 rating decision denying service connection for a right pinky finger amputation disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. The criteria for reopening the claim of service connection for a right pinky finger amputation disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. The criteria for entitlement to service connection for a right pinky finger amputation disability have not been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the U.S. Navy from March 1975 to March 1979. During this time, he was awarded the Good Conduct Medal. This matter comes to the Board of Veterans Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which reopened and then substantively denied the Veteran’s claim for entitlement to service connection for a right pinky finger amputation disability. In December 2019, the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans’ Law Judge. A transcript of that hearing has been reviewed and associated with the claims file. Claim to Reopen The Veteran’s claim for entitlement to service connection for a right pinky finger amputation disability was most recently denied in a May 2014 rating decision, as the RO determined that the Veteran had not submitted new and material evidence sufficient to warrant reopening of his claim, which had previously been denied in a November 1992 rating decision. The record reflects that the Veteran neither timely filed a Notice of Disagreement in response to either decision, nor submitted new evidence during the 1-year period following the issuance of this decision. Accordingly, the May 2014 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). The Veteran subsequently filed to reopen his claim for entitlement to service connection for a right pinky finger amputation disability in September 2015. He also submitted a new private medical opinion regarding the nature and etiology of his right pinky finger amputation generated in August 2015 in conjunction with his claim. Prior to making a determination with respect to the Veteran’s claim of service connection, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claim. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Following a review of the evidentiary record, the Board finds the August 2015 private medical opinion generated after the issuance of the May 2014 rating decision to constitute “new” evidence, as it was not available at the time of that decision. Moreover, the Board finds that this new evidence is material, as there is a suggestion that there may be a connection between the Veteran’s right pinky finger amputation disability and his active service. Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for a right pinky finger amputation disability. Entitlement to service connection for a right pinky finger amputation disability The Veteran asserts that his right pinky finger amputation is related to his active service; specifically, he maintains that this surgical procedure took place during his active service against his wishes and was not an elective surgery. 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. § 1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires competent evidence showing: (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 - the “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. See 38 C.F.R. § 3.304 (b)(1). However, the recording of such a history in the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the preexisting disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that “even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness”). Additionally, a pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Where the pre-service disability underwent an increase in severity during service, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306 (b). The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). VA may find a lack of aggravation under 38 U.S.C. § 1111 if clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 (West 2014) and 38 C.F.R. § 3.306 (2014)); but see Horn, 25 Vet. App. at 238 (emphasizing that “neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111”). If this burden is met, then the veteran is not entitled to service connection benefits. Wagner, 370 F.3d at 1096. There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board will assess the competence and credibility of lay statements as well. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In adjudicating claims for VA benefits, the burden of proof only requires an approximate balance of the evidence for and against a claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is unique to the VA adjudicatory process, and the nation, in recognition of our debt to our veterans, has taken upon itself the risk of error in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. A review of the Veteran’s service treatment records (STRs) reflects that his January 1975 military induction examination noted an abnormal finding for his right pinky finger due to a 60-degree loss of flexion and 30-degree loss of extension at the proximal interphalangeal joint (PIP). That same month, the Veteran’s private doctor provided a letter noting that the Veteran initially injured his right pinky finger in October 1974, and subsequently underwent two unsuccessful surgeries resulting in the development of “a flexion contracture of the little finger” and “a 60-degree loss of extension at the proximal interphalangeal joint and 30 degrees loss at the distal interphalangeal joint.” The Veteran’s doctor characterized this as a “stable” condition “which should not prevent him from entering the service.” In March 1975, a physical profile was put in place reflecting “PULHES 2-P” for a deformity of the small finger of the right hand. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). Therefore, the presumption of soundness does not attach in this case, and the Board finds that the Veteran had a right pinky finger disability which preexisted service. To reiterate, when preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. Wagner, 370 F.3d at 1096. In such cases, 38 U.S.C. § 1153 will apply and the burden falls on the veteran to establish aggravation. Id. (citing Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C. § 1153 arises, then the burden will shift to VA to show a lack of aggravation by establishing that the increase in the claimed disability was due to the natural progress of the disease. Id. Clear and unmistakable evidence is required to rebut the presumption of aggravation when the pre-existing disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Therefore, the questions before the Board are whether it is at least as likely as not that there was an increase in the pre-existing disability; and if so, was such increase clearly and unmistakably due to the natural progression of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In November 2013, the Veteran was diagnosed as status post right pinky amputation in January 1976. See November 2013 Anthem CBOC Primary Care Physician H&P Note. A review of the post-service medical evidence of record does not reflect any documentation of manifestations of or treatment for symptoms associated with this diagnosis. The Veteran has asserted that the surgical procedure resulting in amputation of his right pinky finger at the PIP joint was not elective. However, a review of the Veteran’s STRs reflects that on multiple occasions, the Veteran’s treating physicians noted that the right pinky finger amputation procedure performed was an elective surgery conducted at the Veteran’s behest. See, e.g., November 1975 Clinical Record Consultation Sheet (recording that the Veteran had “a contracture of the [Right] 5th digit” and “wants amputation”); January 1976 Doctor’s Progress Notes (documenting that the Veteran was “[a]dmitted for elective surgery to the right 5th finger”); January 1976 Clinical Record Narrative Summary (reporting that the Veteran “desires amputation through the PIP joint” and scheduling the Veteran for surgery that same month). With respect to evidence of a medical nexus between the Veteran’s right pinky finger amputation and his active service, the Board notes that the Veteran has submitted a medical opinion from his treating doctor opining that “[p]er the medical records dated 1976,” the Veteran’s amputation of his right 5th digit of the proximal phalanx “appears to be a service-connected injury.” See August 2015 North Arizona VA Health Care System Letter. However, the Board finds this opinion to be inadequate for rating purposes. The Veteran’s doctor concluded that the Veteran’s right pinky finger amputation constituted a service-connected injury without providing any rationale other than noting this conclusion was based on a review of 1976 medical records or discussion of the Veteran preservice history of disability of the finger. An adequate medical opinion with regard to etiology should consist of a thorough review of the claims file and discussion of the relevant evidence (including the disability in question), a consideration of the lay contentions of the Veteran, and clear conclusions with a supporting rationale. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Accordingly, the Board assigns no probative weight to the August 2015 private opinion. Regarding lay evidence that his right pinky finger amputation was not in fact elective, the Board notes that the Veteran has subsequently asserted on multiple occasions that he did not know that his pinky finger was going to be amputated, and that he did not consent to this procedure. See, e.g., September 2015 Notice of Disagreement (indicating that the Veteran maintained that he “did not ask to have [his pinky finger] amputated” but instead told doctors at the time “to try and fix it, and if could be [fixed] just cut the tendon and leave the finger straight, I didn’t get my wish”); March 2016 Notice of Disagreement (reiterating the Veteran’s contention that he did not ask for his finger to be amputated); December 2019 Board Hearing Transcript (reflecting the Veteran testified that during deployment to Korea, he was sent to the doctor by his commander after his right pinky finger was caught inside a console; that he told the doctors that he wanted his pinky finger repaired, and had originally planned to have it treated after leaving military service; and that “somewhere along the way the doctor said that I asked to have it removed. That never happened. It was never my decision.”). As previously noted, the Board must determine both the weight and credibility of the evidence as well as consider whether the claimed condition is amenable to lay diagnosis or probative comment on etiology. Struck, 9 Vet. App. at 152; Woehlaert, 21 Vet. App. at 462. While the Veteran is competent to report that he did not want the in-service surgical procedure resulting in amputation of his right pinky finger, the Board assigns more probative value to the 1975 and 1976 service treatment records recording on multiple occasions that the Veteran had indicated that he wanted to have his right pinky finger amputated. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1336 (noting that the Board assigning slight probative value to statements because of a significant time delay between the affiants’ observations of the claimant’s behavior and the date on which the statements were written is completely within the Board’s discretion to weigh the evidence); Harvey v. Brown, 6 Vet. App. 390-394 (1994) (holding that Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). However, even if the Veteran’s surgery was deemed non-elective, the Board notes that the usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service-connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306 (b)(1). Here, the evidence does not show, and the Veteran does not contend, that a pre-existing disease or injury was aggravated by service; rather, he has consistently maintained that the right pinky finger amputation in service took place against his wishes and without his consent. Therefore, the Veteran’s status post right pinky finger amputation is not eligible for service connection on this basis either. In pertinent part, the Board reiterates that there is no evidence of any current disabilities attributable to the surgery documented in post-service treatment records. In other words, no disabling residual of the January 1976 right pinky finger amputation, by itself, is shown by the medical evidence. For the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of service connection for a right pinky finger   amputation disability, and it must be denied. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Raj, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.