Citation Nr: 21068649 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-22 995 DATE: November 12, 2021 ORDER Entitlement to service connection for a bilateral upper extremity disability, to include as secondary to service-connected disabilities, is denied. FINDING OF FACT The Veteran's claimed bilateral upper extremity disability was not manifested in service; arthritis of an upper extremity was not manifested within a year following his separation from active duty; and the preponderance of the evidence is against a finding any such disability is etiologically related to his service or was caused or aggravated by his service-connected disabilities. CONCLUSION OF LAW Service connection for a bilateral upper extremity disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1949 to May 1952 and from March 1958 to March 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision. The Veteran is deemed to be representing himself regarding the above issue due to a limitation on scope of representation by his private attorney, as stated in Box 15 of the VA Form 21-22a signed by the Veteran and his attorney in July 2014. [As was noted in previous Board remands, his attorney has been representing him in other matters on appeal.] The Board remanded this matter for further development in June 2018, August 2019, December 2019, and January 2021 [to request authorization from the Veteran for VA to obtain private treatment records and a medical opinion], and in September 2021 [for an addendum medical opinion]. At the outset, the Board finds there has been substantial compliance with the prior board remand directives, and in particular the January 2021, and September 2021 remands in this matter. Entitlement to service connection for a bilateral upper extremity disability, to include as secondary to service-connected disabilities, is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated in line of duty during active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases to include arthritis), may be presumed to be service-connected if manifested to a compensable degree within a specified period postservice (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, and any increase in severity due to the natural progress, from the current level. 38 C.F.R. § 3.310(b). The Veteran's active-duty service treatment records (STRs) are silent for complaints, findings, treatment, or diagnosis of upper extremity disabilities, to include arthritis, carpal tunnel syndrome, or trigger fingers. His STRs note a July 1958 ganglionectomy to address a ganglion cyst in his right wrist, a January 1963 broken right thumb, and a September 1963 surgery to remove exostosis of the right thumb. [A right-hand surgical scar, right thumb fracture with postoperative excision of exostosis is service-connected (and such disability is not for consideration herein). He has also established service connection for dizziness.] Private treatment records show 1995, 1998, 2003, and 2005 bilateral trigger release surgeries, and a 2011 carpal tunnel syndrome surgery. A September 2008 private treatment record notes the Veteran's report that his hands are tingling worse after a January 2008 fall down a hill. He related that the tingling in both hands was present for years but worsened after the fall. On October 2012 VA (hand and finger conditions) examination, the Veteran reported that his right index trigger finger condition began in March 2011. He described falling due to dizziness and fracturing his right index finger catching himself. Osteoarthritis of the right hand with degenerative joint disease (DJD) and right index trigger finger were diagnosed. X-rays showed DJD of the interphalangeal (IP) joints throughout the right hand. The provider opined that his arthritis and right index trigger finger were less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event, or illness. The provider noted the silence of STRs for either condition, and concluded the current trigger fingers (of several fingers) is a result of diffuse IP DJD throughout the right hand due to age (80 years old.) In an April 2014 notice of disagreement, the Veteran reported a February 2014 surgery for carpal tunnel syndrome. In a December 2014 lay statement, the Veteran's wife reported he had numerous falls, ten operations on his hands and wrist due to falls from 1992 to 2011, and 2014 carpal tunnel surgery for his left wrist. She noted that he fell at least eight times this year, and he averages three to five falls per week in the house. A December 2014 private treatment record notes the Veteran's reports of multiple falls that he attributes to hand pain. On November 2015 (hand and finger conditions) disability benefits questionnaire (DBQ), the provider x-rays were noted to show degenerative arthritis in the Veteran's right thumb, index, middle, and small fingers. In September 2018 correspondence, the Veteran expressed his frustration with the failure of the government to maintain his medical records. In October 2018 correspondence, the Veteran contended that his carpal tunnel syndrome was caused by falls. He reported that he did not use a typewriter, computer, or IPAD. He contended that his carpal tunnel syndrome was caused by falls three years apart. In December 2018 photographs, the Veteran reenacted several of his falls and the injuries he suffered. On March 2019 VA (peripheral nerves conditions) examination, the Veteran reported a February 2014 onset of right carpal tunnel syndrome while driving. He related that the condition started in Vietnam while climbing a radio tower. The provider noted a 2014 diagnosis of right carpal tunnel syndrome and a prior surgery for the disability. The provider opined that his right carpal tunnel syndrome was less likely than not incurred in or caused by the claimed injury, event, or illness in service. The provider noted the silence of STRs and immediate postservice medical records for a diagnosis of carpal tunnel syndrome. The examiner addressed secondary service connection, to include aggravation, and opined that the right carpal tunnel syndrome was less likely than not proximately due to or the result of his service-connected benign paroxysmal vertigo (dizziness) as no medical information supports a nexus between the two disabilities. On October 2020 VA (peripheral nerves conditions) examination, the Veteran reported that his symptoms first started during service in 1963. He described his first symptoms as right thumb pain/immobility that he treated with over-the-counter pain medication. The provider opined that his arthritis and other bilateral upper extremity disability (to include carpal tunnel syndrome and trigger finger) were less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The provider noted silence of the STRs regarding complaints, diagnosis, and treatment for these disabilities. The doctor opined that the Veteran's carpal tunnel syndrome, trigger finger, and hand arthritis were not at least likely as not proximately due to, the result of, or aggravated beyond their natural progression by his service-connected disabilities. The examiner noted, based on her general medical knowledge, there is no nexus between these disabilities and stress placed on his hands after multiple falls due to his service-connected dizziness. Arthritis is a common side effect of a long history of treatment for upper extremity issues, to include carpal tunnel syndrome and trigger finger, and thus not aggravated beyond is natural progression. On July 2021 VA examination, the provider indicated April 2021 x-rays showed bilateral hand osteoarthritis, noted a 2011 bilateral carpal tunnel syndrome diagnosis and surgery, and a 1963 right thumb fracture with post-operative excision of exostosis. The Veteran reported numbness in his thumbs and index fingers, a 2011 onset of bilateral finger numbness, and 2011 surgeries to address his carpal tunnel syndrome. The provider opined that his bilateral extremity disability, to include carpal tunnel syndrome, trigger finger, and arthritis, were less likely than not related to an injury, event, or disease in service. The provider noted the silence of the STRs for the claimed disabilities and the postservice onset of the disabilities. The provider addressed secondary service connection and opined that the bilateral upper extremity disability was less likely than not proximately due to, the result of, or aggravated by his service-connected disabilities (dizziness, right thumb fracture with post-operative excision of exostosis, and right thumb surgical scar.) The examiner noted the silence of the STRs, delayed onset of the disability after service, and the absence of peer reviewed literature supporting a nexus between the service-connected disabilities and his bilateral upper extremity disability. In July 2021 VA addendum medical opinion, the provider stated that there is no evidence in the medical records that the Veteran's bilateral upper extremity was caused by multiple falls attributable to his service-connected dizziness. On September 2021 VA examination, the provider noted all non-service-connected [upper extremity] diagnoses of record (mucoid cyst, mass of the right index finger/possible ganglion cyst, carpal tunnel syndrome, various trigger fingers, and osteoarthritis.) The examiner opined that the Veteran's bilateral upper extremity disabilities were less likely than not related to his military service, or proximately due to, the result of, or aggravated by his service-connected conditions. The provider noted that the mucoid cyst and mass of the right index finger/possible ganglion cyst were removed in 2006, and medical literature does not support that cysts in one area cause cysts to form in other locations. The provider noted that his carpal tunnel syndrome and trigger fingers developed well after service, and the time gap does not support a connection. The provider noted a 1998 private medical record that notes the trigger of the right little finger from holding a fishing rod. The provider referenced the general medical consensus that trigger finger is a condition that develops after forty and concluded the Veteran's trigger fingers were related to circumstances existent at the time of their development, well after service. The provider addressed the Veteran's osteoarthritis and found x-rays showed age-appropriate (89 years on day of examination) degenerative changes of the right hand. The examiner stressed that the service-connected right thumb fracture did not result in concentrated arthritis in the right thumb as the arthritis is diffuse throughout the hands. The doctor cited to medical literature showing a prevalence of osteoarthritis in American adults that steadily increases with advancing age (from 4 per 100 among young adults to 85 per 100 in the oldest age group.) The provider addressed secondary service connection, and concluded that the Veteran's mucoid cyst and mass of the right index finger were not caused by stress to his hands attributable to falls. The provider cited a medical article that shows that ganglion cysts can develop in anyone, are harmless, and age-related osteoarthritis in the finger joints can be a risk factor for developing cysts in these joints. The provider noted that bilateral carpal tunnel syndrome is not caused by stress to the hands from falls, or by a thumb fracture as neither injury would affect the Veteran's wrists at the level of the median nerve. The doctor cited a medical article showing that trigger fingers are related to prolonged and persistent irritations of tendon sheaths that can produce scarring, nodules and impede motion. Trigger fingers are not caused by acute episodes involving the hands during falls and the records do not support a diagnosis of trigger finger in the service-connected right thumb. The provider noted that the service-connected right thumb fracture would not have any effect on the other digits, or cause trigger fingers in other digits. The provider also cited the time interval between the thumb injury inservice and later development of right thumb trigger finger, while stressing that said diagnosis is not of record. The doctor found that the x-rays do not support a finding of significantly more severe arthritis in the right thumb area beyond the natural aging process and the hand osteoarthritis is unrelated to his service-connected disabilities. On September 2021 VA examination, the provider specifically addressed the October 2020 provider's opinion that arthritis is a common side effect of a long history of treatment for upper extremity issues. The September 2021 provider clarified that a certain degree of osteoarthritis is age appropriate and relates to the natural aging process as the presence of age-appropriate arthritis is normal and does not relate to a long history of upper extremity issues. The doctor noted that he would consider arthritis a side effect of a long history of treatment for upper extremity issues if the level of arthritis is marked and exceeds what is expected with natural aging and the arthritis is concentrated in a localized area associated with a previous traumatic fracture. The provider noted that the arthritis in this Veteran is age appropriate, scattered amongst various digits, not severe, not concentrated in a single area, or associated with a past traumatic fracture. As an initial matter, the Veteran submitted correspondence arguing that he did not receive a March 1964 separation medical examination as he waived it in hopes of joining the Air Force. The record includes a March 1964 separation medical examination and report of medical history (signed by the Veteran) that are silent for any residual disability. The Veteran submitted various correspondence noting outstanding private treatment records from various providers. Based on the Veteran's statements, the Board, in part, remanded this matter in December 2019 and January 2021 to request authorization from the Veteran to obtain private treatment records. However, he has not authorized VA to obtain any additional private treatment records or opinion by a private provider, and without such authorization VA is unable to seek such evidence. The Veteran has set forth alternative theories of entitlement to service connection for his bilateral upper extremity disability. He contends that the disability was incurred in service climbing a radio tower, or was caused and/or aggravated by his service-connected dizziness and right thumb fracture with postoperative excision of exostosis. He argues that his bilateral hand disability has worsened due to falling constantly and having to catch himself. It is not in dispute the Veteran has a bilateral upper extremity disability (diagnosed as osteoarthritis, trigger fingers, and carpal tunnel syndrome.) The evidence does not show that a bilateral upper extremity disability manifested in service. The Veteran's STRs are silent for complaints, treatment, findings, or diagnoses related to a bilateral upper extremity disability (separate from his already service-connected right hand surgical scar and right thumb fracture with postoperative excision of exostosis). He alleges that the claimed disability manifested during (or within a year following) his service. Postservice treatment records first show treatment for a bilateral upper extremity disability many years after service, as noted above. The September 2021 consulting VA provider opined that the Veteran's arthritis is age appropriate and consistent with natural aging. Consequently, service connection for a bilateral upper extremity disability on the basis that such disability manifested in service and persisted, or on a presumptive basis (for upper extremity arthritis as a chronic disease under 38 U.S.C. §§ 1112, 1137) is not warranted. Furthermore, while service connection for arthritis may be established by showing continuity of symptomatology, continuity of bilateral upper extremity arthritis symptoms is not shown by the overall record (1998 private treatment records included x-rays of the Veteran's right hand that were interpreted as unremarkable for arthritis.) The earliest clinical confirmation of arthritis in the record is in August 2003 when x-rays showed "minor arthritic changes" in the PIP joint of his left ring finger (39 years after separation.) A January 1995 private treatment record notes "crepitation" in the right long finger (30 years after separation). Arthritis is a disease that is established by diagnostic studies and is incapable of diagnosis by lay observation. Accordingly, service connection for his bilateral upper extremity disability based on continuity under 38 C.F.R. § 3.303(b), is not warranted. The analysis turns to whether service connection for a bilateral upper extremity disability may be granted based on an affirmative showing of a nexus to service, considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d) (direct service connection). The Veteran has not provided any evidence that his bilateral upper extremity disability may somehow be related to his service (apart from a report at his March 2019 VA examination that his hand numbness began climbing a tower inservice.) There is no indication in his postservice medical records that his bilateral upper extremity disability diagnosed many years after his second period of service, may be directly related to service. The lengthy interval between service and the earliest postservice clinical documentation of a diagnosis of bilateral upper extremity disability is of itself a factor for consideration against a finding of service connection for such disability. Consulting October 2012, March 2019, October 2020, July 2021, and September 2021 medical providers have all opined that it is less likely than not that his bilateral upper extremity disability was incurred during, or caused by, his military service. The September 2021 medical provider addressed the Veteran's claimed bilateral upper extremity disability (mucoid cyst, mass of the right index finger/possible ganglion cyst, trigger finger, carpal tunnel syndrome, and osteoarthritis), noted the silence of STRs regarding the disabilities, cited to medical literature for the premise that his arthritis is age related, and interpreted x-rays to show age related degenerative arthritis. The provider addressed the hand injuries in service and explained that if an acute injury in service caused the later development of arthritis that the arthritis in the area affected by the acute injury would be more severe and limited to the area traumatized (all diagnostic studies of record, to include x-rays, document diffuse age-appropriate arthritis). The provider also cited to medical literature in finding that the trigger finger and ganglion cyst are likely related to his non-service-connected bilateral upper extremity osteoarthritis. The VA medical opinions of record, all against the claim, cite to supporting factual data (such as the x-rays, medical literature, lay statements of the Veteran, and the decades between his service and postservice hand complaints noted in medical records.) While the October 2012 opinion did not address the subsequent lay statement by the Veteran regarding onset of symptoms in service climbing a radio tower, the March 2019 had insufficient rationale, and the October 2020 opinion failed to address all bilateral upper extremity diagnoses of record and did not include rationale and the July 2021 opinion did not address injuries in service documented in STRs and are each individually inadequate for rating purposes, the September 2021 opinion addressed the deficiencies and with those earlier opinions considered in pertinent parts is cumulatively probative and persuasive evidence in this matter. The September 2021 consulting provider addressed the Veteran's contention that his hand numbness started in service while climbing a radio tower by noting that the Veteran's arthritis is consistent with age related arthritis and any arthritis attributable to an acute traumatic injury in service would have more severe (than the diffuse age-related arthritis throughout his hands.) The VA providers also addressed the secondary service connection theory of entitlement asserted. Regarding causation, the September 2021 provider's rationale cites to medical principles, explaining that the pathophysiology of a mucoid cyst, mass of the right index finger/possible ganglion cyst, carpal tunnel syndrome, trigger finger, and osteoarthritis does not suggest a basis by which his service disabilities could have caused them (and that there is no support in medical literature for such a causal connection.) The September 2021 consulting provider addressed the Veteran's contention that his bilateral upper extremity disabilities were caused by falls (and grasping nearby objects to avoid falls) associated with his service-connected dizziness by noting that his bilateral upper extremity arthritis is age related (as interpreted from x-rays.) The provider also stated that no medical literature supports a correlation between his mass of the right index finger/possible ganglion cyst, carpal tunnel syndrome, trigger finger, bilateral upper extremity osteoarthritis, with falls and acute injuries. Regarding aggravation the September 2021 consulting provider again invoked medical principles, and noted that an increase in severity of the diagnosed bilateral upper extremity disability is not shown (as required by regulation stipulating that aggravation may not be conceded unless baseline level of the bilateral upper extremity disability before aggravation and level of severity of the bilateral upper extremity disability after aggravation must be established), as the Veteran's diagnostic testing/medical records do not support an incremental increase in the level of severity beyond their baseline level for his bilateral upper extremity disabilities (mass of the right index finger/possible ganglion cyst, carpal tunnel syndrome, trigger finger, and osteoarthritis.) Regarding the one opinion (in October 2020) indicating that arthritis is a common side effect of a long history of treatment for upper extremity issues, the September 2021 provider clarified that arthritis would be considered a side effect of a long history of treatment for upper extremity issues if the level of arthritis is marked and exceeds what is expected with natural aging and is concentrated in a localized area and associated with a previous traumatic fracture in the same area. The September 2021 provider noted that the arthritis in this Veteran is age appropriate, scattered amongst various digits, not severe, not concentrated in a single area, or associated with a past traumatic fracture. As noted above, the Veteran is a layperson, and does not profess to have medical expertise; therefore, his own opinion regarding the etiology of his bilateral upper extremity disability is not probative evidence in the matter. See Jandreau, 492 F.3d at 1372. He has not submitted a medical opinion in the matter of a nexus between his bilateral upper extremity disability (mass of the right index finger/possible ganglion cyst, osteoarthritis, trigger fingers, and carpal tunnel syndrome) and his service or his service-connected dizziness, right hand surgical scar and right thumb fracture with postoperative excision of exostosis. He has asserted that his bilateral upper extremity disability worsened due to falls three years apart and indicated he does not use a computer, typewriters, or iPad (which would be an alternate etiology as trauma from repetitive use). The statements were not accompanied by any medical provider's opinion supporting the claim and citing to the Veteran's statements in support of the opinion. The lay evidence he has presented was addressed by the VA opinions. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for a bilateral upper extremity disability. Therefore, the appeal seeking service connection for a bilateral upper extremity disability must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lederman, Michael 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.