Citation Nr: 21004412 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-24 273A DATE: January 27, 2021 ORDER Entitlement to service connection for a right wrist disability is denied. Entitlement to service connection for a right thumb disability is denied. FINDINGS OF FACT 1. The Veteran’s right wrist disability manifested more than one year after separation and is not shown to be causally related to an in-service injury or disease. 2. The Veteran’s right thumb disability manifested more than one year after separation and is not shown to be causally related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right wrist disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right thumb disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1960 to May 1964. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2016 decision, the Board denied the Veteran’s claims for service connection for a right wrist disability and a right thumb disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In April 2017, the Court granted a joint motion for remand (JMR) vacating the Board’s March 2016 decision and remanding for additional development. Subsequently, the Board remanded these matters in November 2017, October 2018, and July 2020. As the actions specified in the most recent remand have been substantially completed, the case has been properly returned to the Board for appellate consideration. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1331. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. Entitlement to service connection for right wrist and right thumb disabilities As an initial matter, as the facts and analysis for the right wrist and right thumb disability claims are substantially similar, the Board will address both claims together for the purposes of brevity. The Veteran seeks service connection for right wrist and right thumb disabilities, which he contends were caused by an in-service injury he sustained to his right hand. The Veteran asserts that he has continued to experience pain in his right hand and thumb ever since the in-service injury. Service treatment records indicate that the Veteran injured his right hand after he “struck another man” in February 1961. Pain was noted in the distal forearm and wrist. An x-ray showed no fracture or any other bone or joint abnormality of the right hand. The Veteran’s right wrist was placed in a navicular cast to be worn for three weeks. Approximately three weeks later, in March 1961, a medical note states that the Veteran “did not keep cast clinic appointment.” Thereafter, the service treatment records do not show that the Veteran ever sought follow-up treatment for pain or other injury of his right hand, wrist, or thumb at any time after March 1961. In making this finding, the Board acknowledges that the service treatment records document that the Veteran sought treatment for a wrist injury and wrist pain in July 1963 and March 1964. However, at both times, x-rays of the left wrist were ordered, which were negative for any abnormalities. These contemporaneous reports clearly document the involvement of the Veteran’s left wrist with regard to the treatment received in July 1963 and March 1964. As such, the Board finds that there is only one documented injury to the Veteran’s right hand during service, occurring in February 1961. At his March 1964 separation examination, the Veteran denied any relevant symptoms or reoccurring problems of the right wrist or thumb, and the examining physician did not find any abnormalities of the upper extremities on physical examination. Post-service private treatment records show that the Veteran was first evaluated in September 2002 for right hand pain that was assessed as arthritis. According to the treatment note, the Veteran’s right hand pain “has been an ongoing complaint.” However, the Board can find no other documented complaints of right hand pain in the treatment records prior to 2002. In August 2003, the Veteran was noted to have a rupture of the radial collateral ligament of the metacarpophalangeal (MP) joint in right thumb. An October 2003 progress note documents a seven-year history of bursitis in the right hand. The Veteran underwent a VA examination in March 2012. X-rays taken at the time of the examination confirmed diagnoses of arthritic changes in the right wrist and right thumb. The Veteran reported to the examiner that he fractured his right wrist during service, but could not remember how. The VA examiner opined that the Veteran’s current right wrist and thumb disabilities are less likely than not related to any in-service injury. The examiner based this opinion of a finding of a 41 year gap between the in-service injury to the right hand and the current diagnoses of arthritis. The examiner also noted that the in-service x-ray of the right wrist was negative for fracture and examination of the upper extremities was normal upon separation. VA obtained an addendum medical opinion in August 2018. Upon review of the Veteran’s claims file and pertinent medical history, a VA examiner opined that the Veteran’s right wrist and thumb disabilities were less likely than not incurred in or caused by the claimed in-service injury. The examiner noted that the complaints of wrist pain in the service treatment records “are essentially episodic, which indicates conditions were acute and transitory.” The examiner pointed to the March 1961 record stating that the Veteran did not keep his cast clinic appointment as evidence that the Veteran “did not feel [his] condition was significant enough for him to keep the appointment at cast clinic.” The examiner also noted that the March 1964 separation examination was negative for any abnormalities of the right hand, thus supporting the conclusion that the Veteran’s complaints “were acute and transitory in-service events.” As such, the examiner concluded chronicity and continuity has not been demonstrated and a nexus cannot be established between the claimed right wrist and right thumb conditions and any in-service event. Another addendum opinion was obtained in March 2019. Upon examination of the Veteran’s claims file, a VA examiner determined that the Veteran’s right wrist and right thumb disabilities were less likely than not incurred in or caused by the claimed in-service injury. To support this conclusion, the examiner observed that the Veteran’s hand and wrist pain seemingly resolved prior to discharge as demonstrated by the normal findings on the separation examination. Moreover, the examiner determined that the nearly 40 years between in-service wrist/hand treatment and subsequent civilian wrist/hand treatment suggests that the Veteran’s current wrist and thumb conditions represent a separate disease process. The Veteran underwent VA examinations of his right wrist and right thumb in November 2020. Upon examination, the Veteran reported that he fell and injured his right wrist and thumb in 1961 and that he wore a cast for three weeks. Since service, the Veteran stated that his wrist and thumb conditions have continued to get worse. He also reported that after service he worked for the railroad, where he reinjured his wrist and thumb. Upon examination, the VA examiner opined that the Veteran’s right wrist and thumb disabilities were less likely than not incurred in or caused by the in-service injury. The examiner noted that the Veteran’s arthritis was not diagnosed until 2002, which is over 38 years after service. The February 1961 in-service injury to the right hand, as well as complaints of wrist pain in July 1963 and March 1964, were acute only, and there is no evidence of chronicity of care. Late-onset arthritis is not medically related to a previous acute and resolved injury where, as in this case, imaging at the time of the injury was normal. Moreover, the Veteran reported that he reinjured his right wrist and thumb after service while working for the railroad. Accordingly, the examiner concluded that a nexus to service cannot be established. Based on a careful review of the foregoing evidence, the Board finds that service connection for right wrist and right thumb disabilities is not warranted. In this regard, the preponderance of the evidence does not support finding that a causal relationship exists between the Veteran’s current disabilities and the in-service injury to his right hand. In making this determination, the Board finds it significant that, altogether, VA has obtained four medical opinions on the Veteran’s behalf, and all have weighed against the claim for service connection. The Board acknowledges that in the April 2017 JMR, the Court found the May 2012 VA opinion to be inadequate because it did not address the July 1963 and March 1964 service treatment records documenting wrist complaints and subsequent x-rays. Likewise, the Board has previously deemed the August 2018 and March 2019 VA opinions to be inadequate for the same reason. Notwithstanding clear evidence establishing that the July 1963 and March 1964 complaints pertained to the Veteran’s left wrist, the Board has no reason to suspect that the conclusions provided by the VA examiners are otherwise flawed, such as being based on an inaccurate factual premise or on the incompetence of the examiner. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight,” and if such an opinion “is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains.”). In this regard, the Board notes that, even assuming the July 1963 and March 1964 injuries were to the Veteran’s right wrist, upon separation in March 1964, the Veteran explicitly denied any problems such as swollen or painful joints or bone, joint, or other deformity, and his upper extremities were deemed clinically normal upon physical examination. Each VA examiner based their conclusion, in part, on two unopposed facts: the normal findings at the March 1964 separation examination and that the Veteran’s current disabilities were not treated or diagnosed until several decades after service. Unaddressed injuries to the right hand or wrist during service would not change these two fundamental facts. As such, the Board can find no reason to discount the cumulative conclusions of the four VA examiners based on a lack of consideration of the July 1963 and March 1964 service treatment records, which, as explained above, were unequivocally related to the Veteran’s left wrist. Furthermore, there is no evidence that the opining VA examiners are either not competent or credible. Each examiner supported their respective opinion with a well-reasoned rationale with citation to the Veteran’s medical history, consideration of his lay statements, and application of medical principles. Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board notes that VA adjudicators are not free to ignore or disregard the medical conclusion of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). Given the foregoing, the Board finds that the VA opinions, in the totality, are entitled to significant probative weight as to whether the Veteran’s right wrist and right thumb disabilities are etiologically related to military service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board is persuaded by their respective findings that the Veteran’s in-service right hand injury was acute and had resolved prior to discharge, as evidenced by a lack of follow-up treatment after the initial injury in February 1961 and clinically normal findings at the March 1963 separation examination. The Board also finds it noteworthy that the Veteran has not presented or identified any other objective medical opinion or evidence to support his claims for service connection. The only evidence of record relating his current disabilities to the in-service right hand injury are the Veteran’s own lay statements. However, his contention that he has continued to suffer pain and other impairment to his right wrist and thumb ever since the in-service injury is not supported by the competent medical evidence of record. In this regard, the Board notes that private treatment records show the Veteran was first diagnosed with disabilities of the right wrist and thumb in 2002, approximately 38 years after discharge. This is well beyond the presumptive period for establishing service connection for arthritis as a chronic disease pursuant to 38 C.F.R. § 3.307. Likewise, the private treatment records submitted by the Veteran do not support a finding of continuity of symptomatology since the in-service injury. The Board notes that the passage of many years between discharge from service and the documentation of a claimed disability is a factor that, while not dispositive, tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). In this case, the Veteran submitted private treatment records going back to 1998 and these records document several other musculoskeletal complaints and diagnoses back to that time. However, complaints of pain or evidence of treatment for right wrist and thumb conditions were not documented by his physicians until 2002. In making this finding, the Board acknowledges that an October 2003 record notes a history of bursitis in the right hand for seven years, however, as noted, there are no prior notations regarding bursitis or any other right hand complaints until 2002. Even assuming that the Veteran’s right hand complaints began seven years prior to 2003, in 1996, this is still approximately 32 years after discharge from service. Finally, by the Veteran’s own admission to the November 2020 VA examiner, he “re-injured” his right hand after service while working for the railroad. While this injury is not documented in the private treatment records, the Veteran’s statement, viewed in conjunction with the probative and contemporaneous medical evidence of record, weighs against a finding of continuity of symptomatology of his right wrist and thumb disabilities ever since the in-service injury to his right hand. Lastly, the Board finds it significant that the Veteran never reported to his private or VA treating physicians that his right wrist and thumb disabilities may be attributed to an injury that occurred during military service, or that he has experienced continuous pain and other impairment ever since this injury. Similarly, none of the Veteran’s private or VA medical records provide a link between his right wrist and thumb disabilities and military service, nor have any of the Veteran’s treating physicians suggested that such a link exists. Viewing the negative VA medical opinions of record in the totality, and taking into account that there is no other competent medical evidence of record that relates the Veteran’s current right wrist and thumb disabilities to the in-service injury to his right hand, the Board finds that the most probative evidence of record weighs against a finding that service connection is warranted. As a final matter, the Board acknowledges the Veteran’s sincere belief that his right wrist and thumb disabilities should be service connected because he suffered an injury to his right hand during service that required him to wear a cast for three weeks. The Veteran is competent to report on matters observed or within his personal knowledge, and is therefore competent to make statements regarding his medical history and symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of a complex disease process like arthritis requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive or competent medical opinion on whether his current right wrist and thumb disabilities were incurred in service or caused by an in-service injury. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Therefore, any opinion by the Veteran regarding the etiology of his claimed disabilities is not competent evidence. The Board finds the medical opinions of record, provided by medical professionals, to be more probative as to establishing a nexus to service. Accordingly, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for right wrist and right thumb disabilities. Because the evidence fails to establish that the Veteran’s current disabilities were incurred in service, manifested within one year of separation, or are otherwise causally related to an in-service injury or disease, to include a right hand injury in February 1961, the Veteran’s claims do not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.