Citation Nr: 21005066 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 10-43 004 DATE: January 28, 2021 ORDER Entitlement to service connection for a right hand disorder is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. REMANDED Entitlement to service connection for a right ankle disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record does not show that the Veteran’s right hand disorder was related to service. 2. The preponderance of the evidence of record does not show that the Veteran had an acquired psychiatric disorder that manifested in-service or was otherwise etiologically related to military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hand disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 31, 2008 to May 8, 2008. He died in May 2019 and the appellant is the Veteran’s mother, who has been substituted into the appeal. The Veteran was afforded a Travel Board hearing in March 2016 before the undersigned Veterans Law Judge sitting at Los Angeles, California. The transcript is of record. The Board notes that the appeal has a lengthy procedural history. It was most recently remanded in September 2017 for evidentiary development. During development, several issues were granted and are no longer on appeal. The remaining issues, as they have been characterized above, have since been returned to the Board for further consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including arthritis, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in-service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word “chronic.” Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in-service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the “chronic” diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a right hand disorder Initially, the Board observes that the Veteran’s service records are silent as to any complaints of or treatment for a right hand disorder. The Veteran presented to the emergency room in July 2008 for right finger pain and swelling. He stated that he almost fell and grabbed a handrail, twisting his right finger. The Veteran was afforded a VA general medical examination in August 2008. The Veteran complained of right hand pain due to an in-service injury. Regarding his right hand, his symptoms included chronic right hand pain and stiffness. A physical examination showed full range of motion and normal x-rays of the right hand in July 2008. The examiner diagnosed “right hand weakness, apparently post traumatic.” However, an etiological opinion was not provided. Pursuant to the Board’s September 2017 remand, the Veteran received another VA examination in April 2018, wherein he was diagnosed with a hand strain, dated 2018. The examiner determined that the condition is less likely than not attributable to service. The examiner provided the following rationale: The right hand strain is less likely as not incurred in and/or caused by military service. Based on the medical records reviewed, there are no specific evidence the right hand condition began during service. Although C&P exam 9/4/2008 reports right hand trauma in 2/2008, it states the medical records reviewed was noncontributory. History is based on Veteran’s accounts only with no specific record found. After carefully considering the Veteran’s contentions and reviewing the evidence of record, the Board finds that the preponderance of the most probative evidence is against the claim of entitlement to service for a right hand disorder. While the Veteran clearly suffered from a right hand disorder, the weight of the evidence is against finding that such disability was related to military service. Here, the Board finds the April 2018 VA examiner’s opinion to be highly probative because the opinion was based upon a review of the Veteran’s entire electronic claims file, as well as other pertinent medical records, and, in most cases, full examinations, to include both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Importantly, the VA examiner noted that there were no medical records documenting a right hand injury during service and the reports related to the condition were based solely on the Veteran’s subjective account. The Veteran was competent to describe events that occurred during military service and any symptomatology regarding his right hand pain. However, as a lay person, he was not competent to provide a medical diagnosis or to determine the etiology of his right hand disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the opinion of a competent medical professional such as the VA examiner of record is entitled to greater probative weight, and is found by the Board to be far more probative than the Veteran’s lay assertions as to the etiology of his right hand disorder. For the above reasons, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107. 2. Entitlement to service connection for an acquired psychiatric disorder To begin, the Board notes that the Veteran’s service records are essentially silent as to any complaints of or treatment for any mental health problems. A March 2008 counseling form showed the Veteran was not ready to be in the army. In an April 2008 memorandum, the Veteran was reassigned for the purpose of an entry-level separation (uncharacterized) from service. It was noted that the Veteran could not keep up with his peers, perform simple soldier skills, or adapt to the military. No medical examination was performed upon separation from service. The Board further notes that the Veteran has received some private and VA treatment for several conditions. These reports suggest that he had a neurological condition that impacts his sleep and cognitive functioning. Pursuant to the Board’s September 2017 remand, the Veteran underwent a VA psychiatric examination in April 2018, wherein he was diagnosed with mild neurocognitive disorder with Lewy Bodies. The examiner stated that the Veteran’s symptoms included suspiciousness, chronic sleep impairment, mild memory loss, impairment of short-term and long-term memory, and disturbances of motivation and mood. Ultimately, the examiner determined that the condition is less likely than not attributable to service. The examiner provided the following rationale: The Veteran was not identified with any psychiatric symptoms while in the armed services. Among contemporaneous evidence, a neuro-surgery evaluation performed in 2009 – shortly after his discharge – specifically does not identify any findings. He estimates his cognitive impairments only arose four years ago, coincident with his symptoms of Parkinsonism. He serves from January 31, 2008 to May 7, 2008. Therefore, the veteran’s memory loss is part and parcel of his neurocognitive disorder and less likely than no due to military service. The veteran’s mild neuro-cognitive disorder is related to Parkinson’s disease. I have identified risk factors for both Parkinson’s disease and Lewy body disease which are not related to the veteran’s military service exposures. The veteran’s identified symptoms of Lewy Body Disease was not likely incurred secondarily to his in-service experience. A review of the medical literature of risk factors for Parkinson’s disease and/or Lewy Body Disease clearly identified factors such as smoking, educational level, family history (etc), gender and age. More recently hypothesized risk factors included previous psychiatric disorders and APO E subtype. None of these would be influenced by in-service experiences. Having declined MRI which would allow diagnostic stratification, more precise identification can’t be made. The Board determines that the preponderance of the evidence shows that the Veteran’s acquired psychiatric disorder did not manifest in-service, nor was it otherwise etiologically related to military service. The Board finds the reasoning of the April 2018 VA examiner highly probative as the examiner indicated a detailed review of the evidence, provided a fully supported rationale consistent with the evidence, and considered the Veteran’s medical history. Here, the examiner attributed the Veteran’s acquired psychiatric disorder and its symptoms to his nonservice-connected Parkinson’s disease. The examiner also listed several additional risk factors that could impact his condition. The Board has considered the Veteran’s lay statements and he was competent to report his mental symptoms. However, the specific issue in this case, the nature and etiology of the Veteran’s acquired psychiatric disorder, falls outside the realm of common knowledge of a lay person. Moreover, at no time has a trained medical professional opined that the Veteran’s acquired psychiatric disorder was etiologically related to service. For the above reasons, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for a right ankle disorder is remanded. A review of the record reveals that a remand is necessary to ensure substantial compliance with the Board’s September 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the September 2017 remand directives included scheduling the Veteran for examinations to determine whether any right lower extremity disorder was attributable to service. The Board acknowledges that during development, the Veteran received VA orthopedic-type examinations to identify any right lower extremity disorders and determine whether they are attributable to service. Service connection was eventually granted for multiple conditions, including radiculopathy of the right lower extremity and right knee joint osteoarthritis. A VA ankle examination was also conducted in April 2018, wherein the examiner diagnosed the Veteran with a right ankle strain, dated 2018. Reportedly, the X-ray impression was listed as a normal right ankle. Unfortunately, an etiological opinion was not provided and it is unclear to the Board whether the Veteran demonstrated a right ankle disorder for VA purposes. Considering the above, the Board finds that further clarification is needed in the form of an addendum opinion. The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion from the April 2018 VA examiner (or a similarly suited examiner of appropriate expertise) to determine the nature and etiology of the Veteran’s claimed right ankle disorder. The examiner is to be provided access to the electronic claims file and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail, including all diagnoses. The examiner should then opine whether the any identified right ankle disorder at least as likely as not (50 percent or greater probability) began in or was otherwise the result of military service. The examiner should specifically address the Veteran’s contentions and his lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology. The examiner should also address and reconcile any prior report, as well as any other pertinent evidence of record, if necessary. The examiner must provide a complete rationale for any opinions expressed, based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.