Citation Nr: 20039971 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 16-19 688A DATE: June 11, 2020 ORDER Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for a left hand disability is denied. REMANDED Entitlement to service connection for a psychiatric disability, to include major depressive disorder, anxiety, and adjustment disorder, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. The preponderance of evidence is against a finding that the Veteran has a current, chronic right hand disability. 2. The preponderance of evidence is against a finding that the Veteran has a current, chronic left hand disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hand disability have not been met. 38 U.S.C. § §§ 1101, 1110; 38 C.F.R. § §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left hand disability have not been met. 38 U.S.C. § §§ 1101, 1110; 38 C.F.R. § §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1958 to November 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In August 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In November 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. Service Connection 1. Entitlement to service connection for residuals of a right hand disability. 2. Entitlement to service connection for residuals of a left hand disability. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.30. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. §§ 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. §§ 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that he is entitled to service connection for residuals of right and left hand injuries. The Board finds that the evidence of record does not show that the Veteran has a current diagnosis of any chronic hand disability or evidence of a functional limitation constituting a disability. Therefore, as the preponderance of evidence is against a finding that the Veteran has a current chronic hand diagnosis, or has had the claimed disability contemporary to the claims period, the claim for service connection must be denied. The threshold consideration for any service connection claim is the existence of a current disability. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, the evidence of record shows no evidence of a chronic hand diagnosis. The service medical records were reviewed and show the Veteran was treated on several separate occasions for injuries in both hands while in-service, which resolved with treatment while in-service. The April 1971 separation examination noted the upper extremities examination was normal. An analysis of post -service medical records shows no diagnosed disability, to include on VA examination. The Veteran has not submitted any competent evidence that demonstrates a diagnosis of chronic hand disability during the claim period. During VA examination in July 2013, the Veteran was not found to have or ever have a hand or finger condition, nor was the Veteran found to have limitation of motion for any fingers or thumbs. The examiner acknowledged that the Veteran did have a congenital deformity of the bilateral small finger phalanges. The Board notes that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be established. 38 C.F.R. § 3.303 (c); 38 C.F.R. § 4.9; Beno v. Principi, 3 Vet. App. 439 (1992). The Board notes that, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2); Bruce v. West, 11 Vet. App. 405 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased rating); Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges that the Veteran has claimed that he has a disability manifested by hand pain and testified to that during an August 2019 Board hearing. However, the Board finds that the Veteran, as a lay person, is not competent to provide a diagnosis for a complex disability dealing with musculoskeletal issues, and thus is not competent to diagnose a chronic hand disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent evidence concerning the nature and etiology of the claimed chronic hand disabilities has been provided by medical professionals who have examined him, and the underlying medical history of his condition, and found no current clinically diagnosed hand disability. To the extent that there is a conflict between the lay and medical evidence, the Board finds the observations and findings of a skilled professional to be more probative than the lay assertions in this case because of the medical training of the examiner. Accordingly, the July 2013 VA opinion is found to carry significant weight and to be the most persuasive evidence of record. In the absence of competent medical evidence finding a current, chronic hand disability, the threshold requirement for substantiating the claims for service connection is not met. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board is appreciative of the Veteran’s faithful and honorable service to our country. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the Board finds that the preponderance of the evidence is against a finding of any current diagnosis for any right or left hand disability related to active service, or any showing of functional limitation that constitutes a disability of either hand. Therefore, the claim of entitlement to service connection for a right and left hand disability must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a right and left knee disability. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that a current knee disability is the result of service. The Veteran has not alleged a specific in-service event or disease that he believes caused the alleged disability, but that a current knee disability is related to marching during active service. The service medical records do not contain complaints, treatment, or diagnosis of any knee condition. The April 1971 separation examination noted no lower extremity abnormality and was negative for “trick” or locked knee but did list swollen or painful joints. During VA examination in July 2013, the examiner found that it was less likely than not (less than 50 percent probability) that the claimed knee disabilities were incurred in or caused by any claimed in-service injury, event, or illness. The examiner supported that conclusion by stating that there were no records of knee injury or condition resulting in a current knee condition and that degenerative arthritis etiology was multifactorial. During VA examination in January 2020, the examiner found that it was less likely than not (less than 50 percent probability) that the claimed knee disabilities were incurred in or caused by any claimed in-service injury, event, or illness. The examiner supported that conclusion by stating that the separation examination only noted a back injury, and did not mention a knee condition, nor did the entrance examination. The examiner also mentioned that the Veteran’s e-file did not show a knee condition during the service period and knee complaints were only found after leaving service starting in the late 1970s. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment in-service is not adequate. As the July 2013 and January 2020 VA examiner relied on the absence of symptoms or treatment in-service for the negative opinion concerning the demonstrated disability, the opinion is incomplete. That is a pre-decisional duty to assist error. Thus, Remand is necessary for an adequate etiology opinion regarding any knee disability. 3. Entitlement to service connection for a lumbar spine disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a lumbar spine disability. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that a current back disability is the result of service. The Veteran believes that a current back disability began in-service and continues to the present. The service medical records show numerous in-service back complaints and the April 1971 separation examination noted chronic back pain. However, during VA examination in July 2013, the examiner found that it was less likely than not (less than 50 percent probability) that the claimed back disability was incurred in or caused by any claimed in-service injury, event, or illness. The examiner supported that conclusion by stating that the Veteran had congenital spine pars defect of L5-S1 spondylolysis and resultant spondylolisthesis contributing to a back condition. In addition, records of a fall or treatment were found in the service medical records. In a July 2014 clarification, the same examiner from July 2013, corrected the previous rationale to state that there were no records of the Veteran's fall or treatment in the service medical records. During VA examination in August 2016, the examiner stated that the Veteran had spina bifida occulta, which was a lack of fusion of the posterior elements of the spine at level of L5. That can result in a spondylolisthesis at that level. Radiographs were taken during service which showed no spondylolisthesis. Spina bifida is a congenital defect, and the examiner stated that in no way was the pathogenesis related service. The Veteran currently has spondylolisthesis, which may be attributable to the spina bifida occulta. It was possible that the Veteran's spina bifida led to the current disease of a spondylolisthesis. However, it was clear in the service medical records that the Veteran did not have spondylolisthesis. Therefore, it was less likely than not caused by service. It was less likely than not that one year in the service progressed the spondylolisthesis beyond its natural course. The spina bifida occulta was a static disease state and would not have been worsened by service. The examiner could not find evidence of another disease state present in the service medical records of the spine that would correspond with the most recent examination. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment in-service is not adequate. As the July 2013 and August 2016 VA examiner relied on the absence of symptoms or treatment in-service for the negative opinion concerning the demonstrated disability, the opinion is incomplete. That is a pre-decisional duty to assist error. Thus, Remand is necessary for an adequate etiology opinion regarding any back disability. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 4. Entitlement to service connection for a psychiatric disability, to include major depressive disorder, anxiety, and adjustment disorder is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a psychiatric disability. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran asserts that a current psychiatric condition began in-service and continues to the present. In the alternative, the Veteran contends that current psychiatric conditions are secondary to back and knee disabilities. The service medical records do not contain complaints, treatment, or diagnosis of any psychiatric condition. The Veteran’s April 1971 separation examination noted no psychiatric abnormality and was negative for frequent trouble sleeping, frequent or terrifiying nightmares, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, excessive drinking habit, any drug or nacrotic habit, and attempted suicide. However, the Board finds that the issue of entitlement to service connection for a psychiatric disability is inextricably intertwined with the issue of entitlement to service connection for knee and back disabilities, as the Veteran asserts that those disabilities, at least in part, contribute to his current psychiatric conditions. Two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be made until the other issue has been considered. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, since the claims for service connection for the knee and back disabilities, are being remanded, and the Veteran does not currently have any service-connected disabilities, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider the derivative claim prior to the determination of the other claims. Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, the adjudication of the service connection for a psychiatric disability claim must be deferred pending resolution of those claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to treatment for any and all psychiatric, knee, and back disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA. On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA orthopedic examination, with a medical doctor who has not previously examined the Veteran, to diagnose and determine the nature and etiology of the any knee disability. The examiner must review the claims file, including this Remand, and should indicate review of the file in the report. If the examiner diagnoses a knee disability, to include pain resulting in functional loss, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any current knee disability is etiologically related to active service or any event, disease, or injury during service, including whether any knee disability (1) began during active service, (2) manifested as knee arthritis within one year after separation from service, or (3) was noted during service with continuity of the same symptomatology since service. Please cite to any evidence to support a finding of arthritis within one year following separation from service. The examiner should address the Veteran’s lay statements, including hearing testimony, regarding the claimed knee disability and its etiology. The examiner must consider and discuss the lay statements and should reconcile the opinion with any previous opinions of record. The rationale cannot be that a knee disability was not shown during service or at separation from service. A clearly stated rationale for each opinion offered must be provided and cannot be based on the lack of an in-service record of the claimed disability. 3. Then, schedule the Veteran for a VA examination, with a medical doctor who has not previously examined the Veteran, to determine the nature and etiology of any back disabilities. The examiner must review all pertinent records associated with the claims file, including this Remand in its entirety, and indicate review of the file in the examination report. Any studies or tests deemed necessary should be performed. The examiner should diagnose all back disabilities present. If the examiner diagnoses a back disability, to include pain resulting in a functional loss, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any back disability is etiologically related to active service or any event, disease, or injury during active service, including whether the disability (1) began during active service, (2) manifested as back arthritis within one year after separation from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should specifically address any relationship between the Veteran’s in-service back pain complaints and any current back disability. The examiner should address the Veteran’s lay statements, including hearing testimony, regarding the back disability and its etiology, and any symptoms during and since service. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. The rationale cannot be that a back disability was not shown during service or at separation from service. 4. Then, schedule the Veteran for a VA psychiatric examination, with a psychiatrist or psychologist who has not previously examined the Veteran, to diagnose and determine the nature and etiology of any psychiatric disability. The examiner must review the claims file, including this Remand, and should indicate review of the file in the report. If the examiner diagnoses a psychiatric disability, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disability is etiologically related to active service or any event, disease, or injury during service, including whether any psychiatric disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by any service-connected disability, or treatment for any service-connected disability, and the examiner should specifically address the contention that depression has been caused by the claimed back and knee disabilities or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability, or treatment for any service-connected disability, and the examiner should specifically address the contention that depression has been aggravated by back and knee disabilities The examiner should address the Veteran’s lay statements, including hearing testimony, regarding the claimed psychiatric disability and its etiology. The examiner must consider and discuss the lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for each opinion should be provided and cannot be based solely on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.