Citation Nr: 21001269 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 12-25 901 DATE: January 7, 2021 ORDER Service connection for a disability manifested by right hand numbness is denied. REMANDED The appeal for a total disability rating for compensation based upon individual unemployability due to service connected disabilities (TDIU) is remanded. FINDING OF FACT Any current right hand numbness was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. CONCLUSION OF LAW The criteria for service connection for the disease causing the Veteran's right hand numbness have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2004 to July 2006. The Board thanks her for her service. These matters come before the Board of Veterans’ Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). This case was previously before the Board in July 2017 and January 2020. Service connection for right hand numbness Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Organic disease of the nervous system is considered to be a chronic disease under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Based on the evidence, the Board concludes that service connection is not warranted for the disease causing the Veteran's right hand numbness. The preponderance of the evidence is against a finding that any disability causing the Veteran's current right hand numbness was manifest in service or to a degree of 10 percent within 1 year of separation or is related to service. Service treatment records do not show any complaints of right hand numbness, including when the Veteran was treated for right hand symptoms in January 2005. At the time, the symptoms reported were of pain in the right 4th finger, and of swelling. The January 2005 medical record specifically found “Neurosensory intact.” Service treatment records from after this show treatment for back and right lower extremity complaints, but not for right hand complaints. Additionally, on VA examination in January 2010, the Veteran reported that in service right hand symptoms resolved within a month and that her current right hand symptoms of numbness and tingling are quite different from when she injured her right hand in service. The diagnosis was numbness and paresthesia of the bilateral upper extremities, with possible causes being headache medication, carpal tunnel syndrome, ulnar neuropathy, and cervical radiculopathy. Headaches, carpal tunnel syndrome, ulnar neuropathy, and cervical radiculopathy are not service connected. The examiner opined that the Veteran’s claimed condition was not the same as or a result of the right hand injury shown in service. The reasons were that the Veteran stated that her right hand injury had resolved, and denied any history of fracture, and the current symptoms are related to a neuropathy and not associated with prior trauma. While the claims folder was not available to the examiner at the time of the VA examination, a review of the claims folder including the Veteran’s service treatment records reveals that the Veteran related detailed accurate information at the time of the VA examination, that the examiner relied on that information, and that the opinion is very consistent with the evidence of record. The Board found the opinion provided by the 2017 examiner was inadequate and that the examiner did not review the claims file prior to providing the medical opinion. Accordingly, the Board will not rely on that opinion in this decision. However, the Board in 2017 did not identify any reason why the Veteran’s statements at the time of that examination were inaccurately represented, and so the Board will consider those statements along with the rest of the evidence of record. The Veteran’s reports, at the time of the March 2020 VA examination, of immediate numbness of her right hand after the right hand injury in service in 2005, and of it being present constantly since that time, are inconsistent with the rest of the evidence of record, including the service treatment records and her prior statements in January 2010, and so they are deemed not credible. The 2020 VA examiner stated that there was no confirmed diagnosis of a specific peripheral nerve condition. The examiner explained that despite the Veteran’s reports, the objective evidence finds the absence of a confirmed diagnosis of a specific peripheral nerve condition. The examiner explained that the decreased light touch noted in the right hand is patch (over the anterior and posterior aspects of the right hand, including the digits) which do not conform to an anatomically known peripheral nerve or nerve root. To the extent the medical evidence reflects a disability of the right hand, the Board finds that the preponderance of the evidence is against finding a relationship between her current complaints and service. While the Veteran had claimed in November 2009 and in January 2010 that her right hand numbness is due to migraine headaches medication, and in April 2010 that it is secondary to medication, and she had treatment for right hand problems in service, service connection is not in effect for migraine headaches or for any other right hand disability. Service connection is in effect for lumbosacral strain, residuals of a right knee injury, chronic right ankle sprain, trochanteric bursitis, and right ear hearing loss. The evidence does not reflect, and the Veteran does not contend any specific basis for secondary service connection based on any of these service connected disabilities. See 38 C.F.R. § 3.310. In particular, there is no probative evidence indicating that medication for any of them is causing or aggravating right hand numbness. The Veteran’s statements alone regarding such a relationship cannot trigger VA’s duty to obtain a VA examination or opinion in this regard. Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). Therefore, no further VA examination and/or medical opinion is required with respect to this claim. McLendon v. Nicholson, 20 Vet. App. 70 (2006). There is no competent, probative evidence of record indicating that the Veteran's right hand numbness is due to disease or injury which was manifest in service or within 1 year of separation, or is otherwise related to service. The benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. While the Board is unable to grant the benefits sought, it is thankful for the Veteran's 2+ years of honorable service. REASONS FOR REMAND The appeal for a TDIU is remanded. A December 2019 letter to the Veteran from VA’s Vocational Rehabilitation and Education service indicates that the Veteran was scheduled to meet in the near future with a Vocational Rehabilitation Counselor to gather information to determine if the Veteran qualifies for Vocational Rehabilitation and Education benefits. The letter indicates that criteria that the Veteran might need to qualify for Vocational Rehabilitation and Education benefits includes if service connected disabilities are a substantial part of the reason the Veteran has difficulties obtaining and maintaining employment. That information could be relevant to the Veteran's claim for a TDIU, and so the Board is remanding the claim to obtain any pertinent Vocational Rehabilitation and Education records. As the appeal is being remanded, updated VA treatment records will be obtained as well. The matters are REMANDED for the following action: 1. Please associate all outstanding VA and non-VA medical records, including those developed since December 2018 with the electronic claims file. 2. Please associate the Veteran’s VA Vocational Rehabilitation and Education file with the electronic claims file. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.