Citation Nr: 21061859 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 19-18 922A DATE: October 5, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for a right hand disorder is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, it is at least as likely as not that the Veteran's lumbar spine disability is related to active duty service. 2. The Veteran's right hand disorder did not occur in service or for many years thereafter and is not otherwise etiologically related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for a right hand disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1952 to March 1956. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 1. Entitlement to service connection for a lumbar spine disability The Veteran contends that his lumbar spine disability is related to active duty service. Specifically, he alleges that was lifting a large person while performing service duties in 1952 when he fell and hurt his back. He reports that he has been receiving treatment since 1953. After considering all the evidence of record, the Board of Veterans' Appeals (Board) determines that service connection for a lumbar spine disability is warranted. As an initial matter, the Board recognizes that the Veteran's service treatment records and military personnel records are not available for review. In July 2019, the Veteran was notified that his military records were likely stored at the National Archives and Records Administration in St. Louis, Missouri and were destroyed in a fire there on July 12, 1973. He was also requested to submit any additional documents in his possession which might be of aid in developing his claim. In August 2017, April 2018, May 2019, and June 2019, the VA made attempts by mail and phone to have the Veteran properly complete a NA Form 13055, but the form was repeatedly returned with incomplete information, and the National Personnel Records Center was unable to reconstruct his file. While the Veteran asserts that those service records which were destroyed in the fire could have revealed what happened to him and his health during service, the Board is satisfied that the efforts to locate those records were thorough and adequate, even if unavailing. In this regard, the Board recognizes that VA has a heightened duty to consider the applicability of the benefit of the doubt rule to assist a claimant in developing a claim, and to expand its findings and conclusions. Russo v. Brown, 9 Vet. App. 49, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). In light of the heightened applicability of the benefit of the doubt standard and the evidence of record, the Board finds that it is at least as likely as not that the Veteran injured his back during service in 1952 and has experienced continuous symptoms since service. 38 C.F.R. § 3.307, 3.309. First, the record indicates the Veteran underwent a lumbar fusion in September 2018 and had a corrective spinal fusion surgery in January 2020. He continues to experience chronic low back pain status post lumbar fusion, and a June 2021 CT of his lumbar spine revealed extensive posterior fusion changes with intact hardware and no acute abnormality of the soft tissue. As such, the record supports that the Veteran has a current lumbar spine disability. Next, while there were unsuccessful attempts to obtain all of the Veteran's private treatment records, the Veteran reported that his spine was consistently treated by private physicians, and the earliest treatment records in evidence indicate he has been treated by an osteopathic physician since at least October 2004. Furthermore, July 2009 and December 2010 treatment notes indicate the Veteran received acupuncture treatment for back problems, and he was diagnosed with lumbago in April 2014. Additionally, acupuncture records from April 2014 through July 2018 indicate the Veteran was being treated for consistent back pain he has experienced since 1952. Lastly, in October 2015, the Veteran reported to his physician that he experienced injuries due to lifting a large person during military service that resulted in back pain, but that he declined filing a claim for disability benefits when prompted by his treating physician. These reports in the medical treatment records are consistent with credible statements the Veteran has been submitting since he first filed his claim in July 2017, and there is no evidence in the record of any other intervening injury or event to cause his lumbar spine disability. Furthermore, the Veteran's April 2014 acupuncture records and October 2015 report of a back injury during military service occurred two and three years before the Veteran ever attempted to file for disability benefits, further supporting that the Veteran is competent and credible to report his continuity of low back pain since service despite a lack of service treatment records. In sum, the Board concludes that the weight of the evidence supports finding service connection for a lumbar spine disability, and there is no other doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is granted. 2. Entitlement to service connection for a right hand disorder The Veteran contends that his right hand disorder is related to active duty service. Specifically, he contends that he hurt it during active duty in the summer of 1953 and had surgery on his hand the same year. After a review of the evidence of record, the Board concludes that while the Veteran has a current diagnosis of trigger finger in the right ring finger and advanced narrowing of the index finger metacarpophalangeal (MP) joint with osteophyte formation greater than the middle finger MP joint, the preponderance of the evidence weighs against finding that these disorders began during service or are otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303(a), 3.304. 3.307, 3.309; Holton v. Shinseki, 557 F.3d 1363. 1366 (Fed. Cir. 2009). First, as with his service-connected lumbar spine disability, the Veteran failed to submit any additional documents in his possession which might be of aid in developing his claim given that his records were likely destroyed in the fire in St. Louis in 1973. As noted, the Veteran failed to submit a proper NA Form 13055 despite adequate efforts made by the Regional Office (RO). In light of this, there is no evidence of record that the Veteran ever sustained the in-service incident or injury to which his right hand disorders may be presently linked. Even considering the heightened applicability of the benefit of doubt standard, the Board still finds that the claim should be denied. Specifically, despite reporting that he underwent surgery at a private hospital for his hand in 1953, the Veteran has not submitted any medical records to support this. The Veteran did not begin seeking medical treatment for pain in his hand until September 2020 when he was diagnosed with trigger finger of the right ring finger, which is 64 years after separating from service. Additionally, there is no evidence in the record to indicate that his treating physicians have related this disorder to military service. Of particular note, the Veteran reported in October 2015 to his physician that he hurt his hand during service, but when the Veteran sought treatment in September 2020 for symptoms in his fingers, he specifically reported to his physician that he does not remember an injury that would be causing his symptoms. As such, there is no evidence of continuous treatment since service for a right hand condition. The Board is cognizant that, while it is granting service connection for his back disorder based on his statements, this does not mean that his statements regarding his right hand should also be presumed credible. Specifically, in addition to the fact there are no treatment records for this condition until decades after service, he subsequently made inconsistent statements while receiving treatment from September 2020 to September 2021, where he stated that he did not know of any hand trauma or injury that caused his symptoms. Furthermore, the Veteran submitted a detailed letter to the President of the United States in August 2019 seeking help for his claim and detailed his spinal injury during service but did not mention any hand injury. Therefore, neither the Veteran's statements nor the clinical evidence of record supports that his right hand symptoms have been continuous since service. In light of the above, the Board must deny these claims as failing the second criteria of service connection, namely the in-service incident, illness, or injury to which present disorders may be etiologically linked. Indeed, there is no evidence to support a hand injury during service. Neither is there any evidence linking his disability to active service. Rather, the medical evidence indicates treatment for a trigger finger and degenerative changes in multiple fingers in the right hand but does not provide any medical nexus to service. The Board does recognize that no examination has been conducted in connection with the claim but finds that the duty to assist in providing an examination was not triggered, particularly in light of the fact that the Veteran was not diagnosed with these conditions until decades after service, and there is no evidence to support the alleged in-service events occurred despite VA's efforts to obtain more information from the Veteran to verify such events. 38 C.F.R. § 3.159(c)(4)(i). Indeed, without any reliable information regarding an in-service hand injury, any opinion rendered would be substantially speculative. The Board recognizes the Veteran's assertions that his right hand disorders are related to active service but finds them unpersuasive in this matter. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the present case, the Veteran is a lay person without appropriate medical training and expertise and, thus, is not competent to make an etiological conclusion regarding the cause of his right hand disorders. In sum, the Board concludes that the weight of the evidence is against finding service connection for the Veteran's right hand disorder and there is no other doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel