Citation Nr: 20056722 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 14-34 053 DATE: August 27, 2020 ORDER Entitlement to service connection for left little finger degenerative arthritis of the proximal interphalangeal (PIP) joint is granted. FINDING OF FACT The Veteran incurred superimposed injury to his left little finger during service that aggravated his congenital clinodactyly and likely led to the development of arthritis. CONCLUSION OF LAW The criteria for entitlement to service connection for left little finger degenerative arthritis of the PIP joint have been met. 38 U.S.C. §§ 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from June 1973 to June 1985. In October 2018, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In a June 2019 Decision, the Board reopened the issue herein and remanded it for further medical development. 1. Entitlement to Service Connection for Left Little Finger Degenerative Arthritis of the PIP Joint Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection is warranted for a disease first 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). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury, or event. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether each element of a claim is met is based on an analysis of all pertinent evidence of record and the evaluation of its competency, credibility, and probative value. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation of a disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). A veteran will be presumed 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by 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 progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. VA’s Office of General Counsel distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel drew on medical authorities and case law from other federal jurisdictions and concluded that a defect differs from a disease in that a defect is “more or less stationary in nature,” while a disease is “capable of improving or deteriorating.” VAOPGCPREC 82-90 at para. 2. Importantly, congenital or developmental defects are not “diseases or injuries” within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). Rather, a defect of congenital, familial, or hereditary origin, by its very nature, pre-exists military service. Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). If the defect is congenital, therefore, the presumption of sound condition at service entrance does not attach. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2002); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects). Nonetheless, where, during service, a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted if there is evidence of additional disability due to aggravation during service of the congenital defect by the superimposed disease or injury. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985)). Thus, if such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran generally contends that his left little finger disorder, currently diagnosed as degenerative arthritis of the PIP joint and clinodactyly (see August 2019 VA hand and finger conditions examination), is etiologically related to his service, including his military occupational specialties as a patient care specialist, medical specialist, and hawk missile crew member (see DD Form 214). Specifically, the Veteran contends that his in-service duties (including pulling data cables with his hands, putting up medical unit tents by pulling and stretching canvas with his hands, and putting up inflatable hospitals by pulling and stretching the blow-up material with his hands) caused swelling in his finger, which has continued to present. See October 2018 Board Hearing Transcript. The Veteran also contended that a VA facility in Alaska took an x-ray of his hand in 1986 (within one year of separation) and that it showed arthritic calcification in the left little finger (see February 2013 Statement); however, the earliest VA record diagnosing arthritis is a November 1989 x-ray showing degenerative joint disease of the left fifth finger. Lastly, the Veteran has contended that left little finger disorder is due to in-service injury, rather than being congenital, because he injured it in service at the same time he injured his right index finger (see February 2013 Statement; August 2013 Correspondence); although the left fifth finger injury was not documented in the service treatment records (STRs) like the right index finger injury, the Veteran contends that he did report ongoing swelling of the left little finger during service (see October 2018 Board Hearing Transcript). Importantly, the June 2019 Board Remand found that there was conflicting medical evidence regarding the nature of the Veteran’s left little finger disability. Specifically, the Board highlighted: (a) a November 1989 VA treatment note diagnosing degenerative joint disease of the left fifth finger; (b) a January 1990 treatment note indicating that the left little finger condition was compatible with clinodactyly, that the x-ray was negative for arthritis, and that clinodactyly is usually an isolated variant but can occur with a wide variety of symptoms such as chromosomal disorder or other congenital malformations; (c) a December 2007 VA treatment note indicating a deformity of the PIP joint of the left little finger “from old trauma;” and (d) a November 2018 VA examination report indicating that the service-connected peripheral neuropathy of the upper extremities manifests in numbness in the fingers. Accordingly, the Board remanded for medical clarification. As noted above, STRs are silent regarding documentation of a left fifth finger injury or associated symptoms, like swelling. However, the Board finds that the Veteran’s description of injury due to repetitive pulling is consistent with the circumstances of his service. Further, the Board finds that the Veteran is competent to report ongoing swelling because it is a lay-observable symptom. Additionally, as mentioned above, the earliest VA record diagnosing arthritis is a November 1989 x-ray showing degenerative joint disease of the left fifth finger, but, because that record is dated more than one year past separation, presumptive service connection is precluded. The Board acknowledges the Veteran’s contention that he had an earlier x-ray in 1986, but it is simply not among the VA records from 1986 currently in the claims file and, because arthritis is not lay observable, the Board cannot rely on the Veteran’s contention without corroboration through documentation. However, the Board notes that the November 1989 VA treatment note helps to corroborate the Veteran’s contention of ongoing swelling and, possibly, swelling since service; specifically, the note documented the Veteran’s report of pain and swelling in the left pinkie (which he had previously been told was due to an old fracture that did not heal correctly), with the provider noting objective findings that the finger was very swollen and the swelling was “long standing.” The Veteran was afforded an August 2019 VA hand and finger conditions examination with etiological opinion to resolve the conflicting medical evidence discussed in the June 2019 Board Remand. The August 2019 examiner revealed: diagnoses of degenerative arthritis of the PIP joint and clinodactyly; that the Veteran worked as a VA file clerk and claims assistant until 2017, and now works as a human resources assistant at DOD; the Veteran’s report of working as a field medic in service, which involved “pulling things” like tent poles and setting them up; the Veteran’s report of intermittent swelling of the finger since service; and a July 2019 x-ray of the left hand showing degenerative change of the little finger PIP joint, “unchanged possibly related to remote trauma.” After reviewing the evidence, the examiner opined, in pertinent part, that: (a) the proper classification of the Veteran’s disability is a defect or abnormality of congenital, developmental, or familial origin; and (b) the Veteran’s service resulted in additional disability because, although the Veteran’s work after service likely aggravated this condition to a greater degree than his 12 years of service as a field medic, it is likely that any use of his hands contributed to the development of the arthritic changes that were more likely to develop due to the congenital condition. Based on the evidence above, the Board finds that the Veteran incurred a superimposed injury to his left little finger during service that aggravated his congenital clinodactyly and likely led to the development of arthritis. Specifically, the Board has found competent and credible evidence of repetitive pulling injuries in service and continued swelling since service. Crucially, the August 2019 VA examiner opined that the in-service pulling and use of hands in general likely aggravated his pre-existing congenital defect of clinodactyly such that arthritic changes developed. The August 2019 opinion is adequate and probative because the examiner considered the entire claims file, including lay statements, and provided sufficient rationale to support the conclusion. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As such, because the superimposed in-service injury aggravated the congenital defect, service connection is warranted for the resulting disability of degenerative arthritis of the PIP joint. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.