Citation Nr: 20046512 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 17-18 580 DATE: July 13, 2020 ORDER Service connection for postoperative scaphoid non-union advanced collapse (SNAC) of the right wrist is granted. Service connection for a left foot disorder, including left ankle tendonitis, is denied. Service connection for a middle finger of left hand disorder, to include postoperative release of trigger finger, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his postoperative right wrist SNAC, status-post right wrist partial denervation is at least as likely as not related to the November 1952 accident in which he was ejected from a vehicle. 2. The preponderance of the evidence is against finding that a left foot or left hand middle finger disability began during active service or is otherwise related to an in-service disease or injury, to include the Veteran’s in-service motor vehicle accident in November 1952. CONCLUSIONS OF LAW 1. The criteria to establish service connection for the Veteran’s right wrist disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for a left foot disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish service connection for a middle finger of the left hand disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 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 Air Force from May 1952 to April 1956. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in May 2019 to present testimony on the issues on appeal. This appeal was last before the Board in February 2020 at which time the appeal was remanded for additional development concerning a search for records of the Veteran’s in-service hospitalization in 1952. The Board finds that the evidentiary record has been adequately developed in substantial compliance with all prior Board remand instructions and has now been returned to the Board for further appellate review. Specifically, although the agency of original jurisdiction (AOJ) did not prepare a formal finding for the claims file that summarized their attempts to obtain the records sought and the ultimate unavailability of those records, the AOJ did prepare a notice to the Veteran in compliance with 38 C.F.R. § 3.159(e) to inform him of VA’s inability in obtaining these records. This April 2020 notice letter to the Veteran contains the same type of information requested in the formal finding described by the February 2020 remand, and thus is considered to substantially comply with the Board’s request. Additionally, as a search of records from the base hospital that treated the Veteran in 1952 was conducted and records for this Veteran’s 4-day treatment were not located, but the AOJ has stated that all efforts to obtain these records have been exhausted, the Board concludes that the 1952 hospitalization records sought no longer exist or that further efforts to obtain them would be futile. See Notice to Veteran, April 2020; see also 38 C.F.R. § 3.159(e)(1). In all, VA’s duty to assist the Veteran in obtaining evidence in support of his claim is met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Service connection for a right wrist disability is granted. The Veteran contends that his current right wrist disability is related to the documented in-service motor vehicle accident in 1952. There is evidence both in support of and against the Veteran’s claim that the current disability is related to the in-service accident. The Board finds that the positive and negative evidence is in a state of approximate balance (a legal condition called equipoise). In such circumstance, the Board will resolve reasonable doubt in the Veteran’s favor and conclude that the Veteran has a current disability that is at least as likely as not related to the in-service motor vehicle accident. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.102, 3.303(a). VA and private treatment records show the Veteran has a current diagnosis of SNAC of right wrist with osteoarthritic changes at the radiocarpal joint. See, e.g., VA examination, September 2019. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a September 2019 VA opinion that the Veteran’s right wrist condition was less likely than not incurred during service because there was no injury to the right wrist documented after the 1952 accident and no right wrist pain was reported by the Veteran at the time of his separation physical examination in 1956. The examiner noted that the Veteran had right wrist reconstruction surgery in 2014, with no chronicity documented from service over 50 years earlier. VA medical opinion, September 2019. The examiner did not address the lay evidence of symptoms after service. The evidence in favor of the claim includes an opinion by a private hand surgeon that the Veteran’s current right wrist disability is “consistent with early arthritic changes stemming from an old traumatic injury” and that the motor vehicle accident described by the Veteran could be the cause of his right wrist SNAC. This physician does not state affirmatively that he believes the accident is the cause of the right wrist disability, nor that it is at least 50 percent likely that this is so, only that the accident “can” be the cause of the current disability. Private medical opinion, April 2014. The Veteran’s son testified that the Veteran has had problems with the right wrist since the accident in service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current postoperative right wrist SNAC is related to his active service. Both the VA and the private opinions, as well has the lay evidence has some probative value. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for the right wrist disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for a left foot disorder is denied. 3. Service connection for a middle finger of left hand disorder is denied. The Veteran contends that his current left foot and left hand middle finger conditions are also related to the in-service automobile accident he experienced in November 1952. See Board hearing transcript, May 2019. The question for the Board is whether the Veteran has a current left foot or left finger disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has been diagnosed with disabilities affecting the left foot and left middle finger that were present during this appeals period, and evidence shows that the reported in-service motor vehicle accident occurred, the preponderance of the evidence weighs against finding that the Veteran’s left foot and left middle finger conditions began during service or are otherwise related to an in-service injury, event, or disease. The Veteran underwent a medical examination at the time of his separation from active service in April 1956. The clinical evaluation documented normal feet and normal upper extremities, which includes the hands. The only abnormality noted at the time was a prior tonsillectomy at the age of 6. The vehicle accident in question is not described in the Veteran’s separation examination, and no abnormality or residual of the motor vehicle accident was described. Service treatment records, April 1956. VA treatment records show the Veteran was not diagnosed with a left foot or left finger disability until decades after his separation from service. Indeed, the Veteran sought orthopedic evaluation in 1977 (approximately 21 years after discharge from active service) during which he described his motor vehicle accident and residual pain problems occurring since the accident. The Veteran described back and knee pain but did not describe any problem with his left foot or left middle finger resulting from the described accident. VA treatment records, November & August 1977. The Veteran’s own description of the accident and his injuries does not include left foot or left middle finger symptoms during service, nor continuous left foot or left middle finger symptoms since service. See Board hearing transcript, May 2019. Further, the May 2020 VA examiner opined that the Veteran’s left foot and left middle finger disorders are less likely than not (less than a 50 percent probability) related to an in-service injury, event, or disease, including the 1952 accident. The rationale was that there is no evidence of an in-service injury to the left middle finger or left foot, the Veteran was clinically examined at the time of his discharge from service and no left foot or left middle finger abnormalities were found, and the Veteran does not describe problems with these areas until many years after service. The examiner’s opinion is probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no positive medical nexus opinion of record that associates the Veteran’s current left foot and left middle finger disabilities with the 1952 accident or any other in-service injury, event, or disease. The Veteran believes his left foot and left middle finger disabilities may be related to the 1952 motor vehicle accident. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinion. In sum, the Veteran is shown to have current disabilities affecting his left foot and left middle finger. The evidence also reflects that he experienced a motor vehicle accident in service during 1952. However, the evidence does not demonstrate a causal relationship between the current disability and the in-service accident. As the evidence weighs against the claim, service connection for a left foot and left middle finger disability must be denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, 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.