Citation Nr: 20042362 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 18-13 874 DATE: June 23, 2020 ORDER Entitlement to service connection for a left index finger disability is denied. REMANDED Entitlement an initial compensable evaluation for renal cancer prior to January 24, 2018 and in excess of 60 percent on or after January 24, 2018, is remanded. FINDING OF FACT The Veteran’s left index finger disability is not related to his active service. CONCLUSION OF LAW The criteria for service connection of a left index finger disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2017 and June 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board reopened and denied the claim for service connection of a heart disability and remanded the issue of entitlement to higher evaluations for the Veteran’s service-connected renal cancer. As will be discussed in more detail below, the Board finds that the claim must again be remanded in order to obtain substantial compliance with the March 2019 remand instructions. In that decision, the Board also remanded the issue of entitlement to service connection for left hand finger disabilities for the issuance of a statement of the case (SOC). In this regard, the Board notes that the appeal concerning the left index finger disability initially stems from a June 2018 rating decision in which service connection was denied for every finger of the left hand. However, in his August 2018 notice of disagreement (VA Form 21-0958), the Veteran limited his appeal to the single issue of entitlement to service connection for the left index finger and provided a statement specifically addressing the left index finger and no other fingers. The RO issued an SOC in January 2020 with respect to service connection for a left index finger disability only. As such, the Board has found the RO complied with the March 2019 instructions and will proceed with appellate review of entitlement to service connection for the left index finger. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In his March 2020 substantive appeal (VA Form 9), the Veteran did not select a Board hearing option. However, in June 2020, he responded to a Board hearing clarification letter by declining the option of a Board hearing. This claim has been advanced on the docket (AOD) pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107 (a)(2). Service connection left index finger Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(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 so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (a). With regard to these presumptive disabilities, service connection for may also be established by a continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. See 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Addressing first the question of presumptive service connection, the Board notes that a compensable (10 percent) degree of arthritis for a group of minor joints requires establishment of arthritis by x-ray findings and limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The record does not include any x-ray evidence of arthritis in the fifth finger of the left hand from within one year of the Veteran's separation from service in October 1966. Therefore, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307 (a)(3). Thus, the Board will next address whether service connection on a direct basis is warranted. The Veteran’s service treatment records show treatment for symptoms related to a left index finger injury. A December 1963 note documents that the Veteran had injured the first (index) finger of his left hand playing football over the weekend and was unable to move the finger without pain; treatment included a splint on his finger and hot soaks for four days. Approximately one week later, the Veteran was seen for follow up and it was noted that there were no residuals from the injury. In January 1964, he was treated for pain and swelling of the knuckle of the left index finger; the finger was noted to be healing slowly. A note dated February 1964 indicates that the Veteran injured the first finger of his left hand in December 1963 and that the finger had been swollen since then and previous treatment did little to relieve his complaints. There were no further complaints related to the left index finger for the remainder of the Veteran’s active service. The September 1966 Report of Medical Examination conducted at separation shows that clinical evaluation of the Veteran’s upper extremities with respect to strength and range of motion was normal. The Veteran was afforded a VA examination in May 2018 at which time he was diagnosed with left hand strain. He reported that he first injured his left hand in 1963 after he fell on it during physical training. He was then treated with a splint but reported that no x-rays were conducted at the time. The Veteran reported that the condition has worsened with increased pain and stiffness with gripping, writing, or typing. In addition, he reported that he has constant aching, throbbing, and sharp pain in his left hand. The examiner reviewed the Veteran’s claims file, including his service treatment reports, VA treatment reports and private medical records and opined that the Veteran’s claimed disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that there are no subsequent medical records showing continuity of care for the condition since 1964 (over 5 decades) and that the injury to the finger would have resolved over the years in the absence of recurrent injury or stress to the joint. The examiner cited to VA treatment records noting locking and pain on the left fourth finger and the right first finger and an October 2014 x-ray of the left hand showing no evidence of fracture or dislocation. However, the x-ray showed mild degenerative changes at the base of the left thumb and mild degenerative changes at the bilateral fingers PIP and DIP joints; however, it was noted that this pattern was typical for degenerative osteoarthritis. An x-ray of the left hand conducted in May 2018 revealed that oblique and lateral views of the left hand showed no evidence of fracture or other significant bone or soft tissue abnormality. The impression was of a negative left hand. Here, the record does not contain evidence of continuing symptoms in the index (first) finger of the left hand since service. While the Veteran reported a decades long history of pain in his left hand at the time of his May 2018 VA examination, the rest of the medical record does not support his statements. The Veteran’s VA treatment records are silent for any treatment related specifically to his left index finger. Indeed, the Veteran did not mention any index finger symptoms prior to his current claim for service connection. Under Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000), a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim such that it weighs against the claim. Thus, the Board finds the Veteran's recent reports of continued index finger symptoms dating back to his active service are not supported by the contemporaneous record, including his September 1966 separation examination which makes no reference to residuals related to his left index finger injury three years prior. As such, service connection based on continuing symptoms is not warranted. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a left index finger disability and the claim must be denied. There is no reasonable doubt to be resolved as to this issue. 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to Increased Evaluations for Renal Cancer In this case, a July 2017 rating decision established service connection on a presumptive basis (Camp Lejeune Water Contamination) for the Veteran’s renal cell carcinoma. The Veteran had a left partial nephrectomy in September 2012 and an initial noncompensable evaluation was assigned for inactive disease based on the findings of a May 2017 VA kidney conditions examination which included results of diagnostic testing performed in February 2017. The Veteran appealed the initial evaluation assigned and in June 2018, the Veteran’s disability was increased to 60 percent effective January 24, 2018. The Veteran was afforded a new VA examination in October 2019. However, the VA examiner did not provide responsive answers to the Board’s March 2019 remand. The examiner failed to discuss whether the June 2017 and December 2017 VA treatment reports, which showed abnormal kidney test results prior to the date of the Veteran’s increased evaluation of 60 percent, were indicative of a definite decrease in kidney function. Furthermore, the examiner did not comment on the significance of the December 2018 CT which showed a cyst in the right kidney nor whether there was a relationship between the Veteran’s hypertension and his residuals of renal cancer. In summary, she failed to adequately address the severity of the Veteran’s renal disability for the period from March 2017 to January 2018 as was requested in the Board’s remand. In fact, she incorrectly stated that the Veteran was diagnosed with primary malignant neoplasm of the kidney in October 2015 and that his disability has been service connected from January 2018. Thus, the remand directives were not substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Ensure that an addendum opinion is obtained from an appropriate VA examiner who has not previously participated in this case to determine the severity and manifestations of the Veteran’s residuals of renal cell carcinoma for the appeal period prior to January 24, 2018. The claims folder must be made available to and be reviewed by the examiner, in particular, the Veteran’s VA treatment reports dated from March 2017 to January 2018. The examiner must address the severity and manifestations of the Veteran’s residuals of renal cell carcinoma for the appeal period beginning from March 14, 2017 to January 24, 2018. In so doing, the examiner must discuss the significance of the kidney tests contained in the June 2017 and December 2017 VA treatment reports and comment on whether these findings showed a definite decrease in kidney function. Furthermore, the examiner must comment on the significance of the December 2018 CT which showed a cyst in the right kidney. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.