Citation Nr: 21065177 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-66 904 DATE: October 25, 2021 ORDER Service connection for arthritis of the bilateral hands is denied. FINDING OF FACT The Veteran's arthritis of the bilateral hands is not linked to disease or injury incurred or aggravated in active service, and has not been caused or aggravated by his service-connected bilateral knee disabilities. CONCLUSION OF LAW The criteria for service connection for arthritis of the bilateral hands have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to July 1972, and from June 1974 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board reopened the claim and remanded it for further development in April 2021. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active 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). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). For conditions noted during service (or in the presumptive period) but not shown to be chronic at the time, a continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). Id. In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for arthritis if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. § § 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. 38 C.F.R. § 3.310(b). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). Bilateral Hand Arthritis The Veteran states that he injured his hands from falling as a result of his knees giving out or buckling due to his service-connected knee disabilities. See May 2017 Notice of Disagreement. For the following reasons, the Board finds that service connection is not established. The service treatment records include a February 1972 entry that states that the Veteran struck someone with his right fist two days earlier, and had swelling and tenderness with pain when closing the fist. Subsequent service treatment records do not show further complaints of right hand symptoms, and none were reported by the Veteran in a June 1974 report of medical history. The November 1975 separation examination report reflects that a clinical evaluation of the upper extremities was normal. The VA treatment records show that in March 1998 the Veteran reported bilateral hand pain. Examination showed changes consistent with degenerative joint disease in the hands. A December 2002 VA treatment record reflects a finding that the Veteran's hands had arthritis, and notes he reported that he fractured his hands when boxing at sixteen or seventeen years of age. A September 2011 VA x-ray study of the bilateral hands shows findings of degenerative changes of the first and fifth metacarpophalangeal (MCP) joint with osteophytic spurring. The x-ray report also reflects findings of an old injury with calcification at the level of the joint on both sides of the fifth MCP joint. However, the "impression" or interpretation of the x-ray states that the Veteran had "possible changes" of the fifth MCP joint due to an old injury, "but they appear much more likely to be due to [a] degenerative process." A September 2015 VA treatment record reflects that the Veteran reported hand pain with cloudy or rainy weather. An April 2017 VA treatment record reflects that the Veteran reported pain in his left hand that had been present for a week. An August 2017 VA treatment record reflects that the Veteran reported pain at times in his hands where it felt they were freezing or locking up to the point where the fingers would not move secondary to swelling and arthritis change. Another August 2017 VA treatment record reflects that the Veteran reported that his bilateral hands were very painful. He had obvious swelling around the thumbs, with his right thumb being worse than his left thumb "as he is right-handed." All his fingers were affected by swelling as well. There was an appearance of osteoarthritis as well as rheumatoid arthritis. A VA examination was performed in June 2021. The examiner diagnosed degenerative arthritis of both hands. The examination report reflects that the Veteran related he had hand pain since 1975. In the June 2021 medical opinion, the examiner found that the Veteran's bilateral hand arthritis is less likely than not proximately due to or a result of his bilateral knee disabilities. The examiner explained that alterations in gait due to knee conditions are not shown to increase the risk for hand arthritis. The examiner similarly found that the Veteran's bilateral hand arthritis is less likely than not aggravated by his service-connected bilateral knee disabilities. The examiner explained that alterations in gait secondary to knee conditions have not been shown to aggravate hand disorders, including degenerative arthritis. The examiner observed that causes of hand osteoarthritis include trauma to the hands and overuse of the hands. The Board finds that the criteria for service connection, whether on a direct or secondary basis, have not been met. As an initial matter, the Board does not find it credible that the Veteran has had hand pain since 1975 or that he injured his hands from falling due to his service-connected knee disabilities. In this regard, there must be a proper foundation to draw adverse inferences against the credibility of testimony from silence in the record. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Such a foundation may be established by finding that the fact being claimed would ordinarily have been recorded in the available records had it occurred. Id. Thus, the Board may not rely on an absence of treatment without explaining "why the appellant would reasonably have been expected to report his symptoms to medical providers." Fountain, 27. Vet. App. at 273. The Board must also consider whether it is qualified to make that determination, or whether independent medical evidence is required. Kahana v. Shinseki, 24 Vet. App. 428, 434-35 (2011) (holding that the Board improperly found that a claimed injury would have been documented at the time, as there was no independent medical evidence to support that determination.) In determining whether a claimant's statements are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Here, the earliest evidence of the Veteran's hand pain is the March 1998 VA treatment record, which is dated well over twenty years since his service separation. He did not report a long-standing history of hand pain in any of the records documenting his hand symptoms. The only history he mentioned is a boxing injury to his hands when he was a teenager, and which thus occurred prior to his service. But he did not indicate that he had experienced hand symptoms since that time or during his period of service. Accordingly, there is not merely silence in the record, but affirmative and probative evidence that tends to conflict with the Veteran's recent statement at the June 2021 VA examinationproffered for the first time in support of a claim for benefits, rather than in the context of treatmentthat he has had hand pain since 1975. With regard to the February 1972 service treatment record reflecting treatment for right hand swelling and tenderness after the Veteran struck someone with his fist, the record does not show that this injury is related to his subsequent hand pain or arthritis. The September 2011 VA x-ray study report reflects an initial finding of an old injury to the fifth MCP joint, but was ultimately interpreted in the "impression" section that the changes of the MCP joint were "much more likely" due to a degenerative process. The Veteran's bilateral hand arthritis has not otherwise been attributed to prior injury. Moreover, the February 1972 service treatment record does not show findings of a fracture or injury to the fifth MCP joint, but the Veteran stated he did fracture his hands when boxing as a teenager, which could account for the initial x-ray findings of an old injury. The Board also notes that VA law provides, in pertinent part, that direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct. 38 C.F.R. § 3.301(a). No compensation shall be paid if the disability is a result of the veteran's own willful misconduct. 38 U.S.C. § 1110. Even if, for the sake of argument, a current hand disability could be attributed to the Veteran's February 1972 right hand injury, as it was caused by his striking another person, it likely was the result of willful misconduct (unless done in self-defense or defense of another) and, as such, service connection would be barred as a matter of law. Id.; 38 C.F.R. § 3.301(a). In any event, for the reasons discussed above, the preponderance of the evidence weighs against a link between the in-service injury and the Veteran's current arthritis and degenerative changes of the hand. Accordingly, the criteria for direct service connection are not satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). Because arthritis of the hands was not noted in service or within a year of separation, and as a continuity of symptomatology is not otherwise shown by credible evidence, the presumptive provisions applicable to arthritis as a chronic disease do not apply. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Secondary service connection is also not established. The preponderance of the evidence shows that the Veteran's hand arthritis is not due to a prior injury. Thus, his theory for secondary service connection, namely that his hand conditions resulted from falls caused by his service-connected bilateral knee disabilities, does not substantiate the claim on that basis. Moreover, while he is competent to state he has fallen due to his knee disabilities, his statement, standing alone, is not sufficient to show that he injured his hands in such falls. As discussed above, the VA treatment records do not show reports of falls or injuries when the Veteran's hands were treated; the only mention of a prior injury was the boxing injuries he sustained as a teenager. The Board finds it implausible that an injury to the hand would not be mentioned or recorded if such occurred. Thus, those records conflict with that statement and therefore undercut its credibility. Because the premise underlying the Veteran's theory of secondary service connection is not established, its probative value is discounted on that basis; consequently, there is no need to address whether his statements are otherwise competent on the issue of secondary service connection. There is no indication that the Veteran's bilateral hand arthritis may otherwise have been caused or aggravated by his service-connected knee conditions. In the June 2021 VA medical opinion, the examiner explained that alterations in gait due to knee conditions are not shown to increase the risk of, or aggravate, hand arthritis, the causes of which are overuse of the hands and trauma to the hands. As there is no indication that the Veteran's bilateral hand arthritis may be caused or aggravated by his knee conditions, further opinion or explanation is not warranted. Accordingly, the criteria for service connection on a secondary basis for the Veteran's bilateral hand arthritis are not met. See 38 C.F.R. § 3.310. As the preponderance of the evidence is against the claim, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See Lynch, 999 F.3d at 1395; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 U.S.C. § 5107. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.