Citation Nr: A21019281 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 211028-194908 DATE: December 3, 2021 ORDER Service connection for a right hand disability, to include degenerative changes of the right hand, including as a result of in-service exposure to ionizing radiation and chemicals, is denied. FINDING OF FACT A right hand disability, to include degenerative changes of the right hand, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, to include exposure to ionizing radiation and chemicals. CONCLUSION OF LAW The criteria for service connection for a right hand disability, to include degenerative changes of the right hand, to include as due to exposure to ionizing radiation and chemicals, 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1956 to June 1958 and from July 1958 to July 1976. In February 2016, August 2017 and July 2019, the Board remanded the claim for service connection for a right hand disability to the agency of original jurisdiction (AOJ) for further development. In an April 2020 decision under the modernized review system, also known as the Appeals Modernization Act (AMA), the Board denied the claim for service connection for a right hand disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. Pursuant to a joint motion for partial remand, in a February 2021 Order, the Court remanded that Board decision for readjudication in accordance with the joint motion. In July 2021, the Board remanded the claim for further development. In the October 2021 rating decision on appeal, the AOJ found that new and relevant evidence had been received to readjudicate the claim but confirmed the prior denial. In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. Service ConnectionRight Hand Disability Service connection may be granted for 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). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including arthritis, if the disease manifested to a compensable degree within one year from the date of separation from active service. While the disease does not need to be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Hilkert v. West, 11 Vet. App. 284, 289 (1998). First, if a veteran exposed to radiation during active duty later develops one of the diseases listed in 38 C.F.R. § 3.309(d)(2), a rebuttable presumption of service connection arises. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). These diseases are ones in which the VA Secretary has determined that a positive association with radiation exposure exists. Second, service connection may be established if a radiation-exposed veteran develops a radiogenic disease (one that may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311(b)(2) or established by competent scientific or medical evidence to be a radiogenic disease), if the VA Under Secretary for Benefits determines that a relationship in fact exists between the disease and the veteran's exposure in service. 38 C.F.R. § 3.311. Third, service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. A "radiation-risk activity" is defined to include the onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(ii). The Veteran asserts that he has a right hand disability, to include degenerative changes of his right hand, due to exposure to ionizing radiation and chemicals during service while working on the Nike-Hercules missile program. Initially, the Board observes that the issue of current disability must be addressed. The October 2021 rating decision found that the evidence does not show a current diagnosed disability. However, a May 2004 VA treatment record shows a history of bilateral hand pain for 28 years and a diagnosis of pain in the joints involving the hands, and a September 2018 VA treatment record shows complaints of continuing bilateral arthritic hand pain. As will be seen below, there is no current X-ray evidence of degenerative changes in the right hand. However, the record indicates that the Veteran's right hand condition impacts his ability to perform occupational tasks. A July 2021 VA examination report reflects a diagnosis of stiffness in the right hand, and the examiner's observation that the Veteran's right hand condition results in difficulty performing fine motor functions, thereby impacting his ability to perform occupational tasks. The Board observes that disability refers to the functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that he has a current disability of the right hand. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The question remains whether his right hand disability is related to active service. In this case, the Board acknowledges that the Veteran's in-service duties included working with nuclear projectiles. His service personnel records show that he was a Hercules missile crewman, the duties of which he asserts exposed him to ionizing radiation and chemicals such as toluene and trichloroethylene. Thus, in-service exposure to ionizing radiation, and various chemicals, is presumed. The question now is whether the Veteran's right hand disability is related to such exposure. However, musculoskeletal disease, including degenerative joint disease of the hand, is not a disease subject to presumptive service connection under 38 C.F.R. § 3.309(d)(2). While bone cancer is subject to presumptive service connection, there is no evidence that the Veteran has bone cancer. Musculoskeletal disease is also not a radiogenic disease under 3.311(b)(2), and the Veteran has not presented any evidence indicating a link between his right hand disability and exposure to ionizing radiation. Thus, the remaining question is whether his right hand disability is otherwise related to active service, to include his exposure to chemicals such as toluene and trichloroethylene. Service treatment records show that in November 1968 the Veteran complained of injuring his right second finger when a door closed on it. There was drainage from a slight opening behind the nail, and he was diagnosed with a contusion. There are no further complaints from this injury. In September 1975 he reported a history of osteoarthritis in his back and hands. However, subsequent treatment records do not contain an actual diagnosis of osteoarthritis in either hand. Also, while treatment records show follow-up for continuing back complaints, they do not show any further complaints of a right hand disability, to include any degenerative changes. There is also no mention of an injury to the right thumb. Further, in a July 2021 medical opinion, a VA examiner noted the in-service complaint of osteoarthritis but stated that that was something the Veteran himself reported and not something that was medically diagnosed, as service treatment records do not show a diagnosis of osteoarthritis in the right hand. The examiner concluded that the service treatment records do not document a chronic right hand disability. The Board agrees. Given the above, the Board finds that a right hand disability, to include degenerative changes of the right hand, was not shown as chronic in service. Post-service, the first indication of a right hand disability is in the May 2004 VA treatment record. While the Veteran at that time dated the onset of his right hand pain to 28 years earlier, which would be near the time of his discharge from active service, there is no earlier medical record or other objective evidence that supports such a history. In that regard, the Veteran may be recalling the irritation associated with the skin condition that has affected his hands since service and for which he is service-connected. While he filed a claim in August 1976 for, among other things, disorders of the back and left knee, he did not include a right hand disorder. In any event, the first objective evidence of a right hand disability dates to over 25 years after his discharge from service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that a right hand disability, to include degenerative changes of the right hand, did not manifest to a compensable degree within the applicable presumptive period. The Board acknowledges that July 2004 X-rays of the right hand were interpreted as showing degenerative changes of mild degree at the interphalangeal joint of the right thumb. However, January 2006 X-rays revealed adequately maintained joint spaces throughout the hand and wrist with no evidence of arthritic or inflammatory change, and the impression was of a normal right hand. X-rays taken during an April 2015 VA examination also revealed preserved joint spaces with no erosion or osteophyte, and the impression was of no significant arthropathy. In a May 2015 medical opinion, that VA examiner noted that recent X-rays showed no significant arthropathy in the right hand and a review of both the current and July 2004 X-rays revealed no degenerative changes or any progression of disease at the thumb joints. Then, in a July 2021 medical opinion, another VA examiner noted that the findings of the July 2004 X-rays suggesting degenerative changes in the right thumb were refuted by later X-rays in January 2006 and April 2015, both of which showed a normal right hand. The examiner indicated that the radiologist who read the July 2004 X-rays made an error as degenerative changes do not disappear but would be expected to progressively worsen. Thus, the Board finds that there is no current evidence of arthritis in the right hand. In any event, with no objective evidence of degenerative changes of the right hand within one year of the Veteran's discharge from active service, service connection on a presumptive basis for a chronic disability is also not warranted. The Board notes that a lay person is competent to give evidence about observable symptoms such as hand pain. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To the extent the Veteran is claiming to have experienced continuous pain in his right hand since active service, he is not found to be credible. He did not complain of any right hand pain during his separation examination, and examination at that time revealed normal upper extremities. There is no medical evidence of a right hand disorder after discharge until May 2004, over 25 years after service. Lastly, if he had experienced right hand problems continuously since service, it would be reasonable to expect that he would have filed a disability claim much sooner than in October 2004. Given the above, the Board finds that the Veteran's statements alleging or implying continuity of right hand symptoms are not credible in this case. Therefore, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements. Moreover, the medical opinion evidence of record shows that the Veteran's right hand disability is not related to active service. While several medical opinions were obtained, most recently in August 2019, they were all deemed inadequate. Thus, in the July 2021 remand, the Board requested another medical opinion. In a July 2021 medical opinion, a VA examiner concluded that the Veteran's right hand disability was not incurred in, or caused by, any in-service injury or disease. The examiner noted that there is no evidence of a chronic right hand disability in the service treatment records. The examiner observed that a causal relationship between degenerative arthritis and ionizing radiation or toluene/trichloroethylene has not been established. The examiner noted that toluene and trichloroethylene are known to cause skin irritation but observed that the skin and joints are two separate entities and a skin condition/irritation would not affect the joints unless it were a psoriatic arthritis or other similar condition, which is not the case. The examiner noted that the etiology of the Veteran's right hand condition cannot be determined based on available records or today's examination. The above medical opinion is the only competent medical opinion of record, and, unfortunately, it is against the Veteran's claim. While the examiner was unable to offer the actual etiology of the Veteran's right hand disorder, the examiner was able to opine that his right hand disorder is not related to an injury or disease in service, to include exposure to chemicals or ionizing radiation, as asserted by the Veteran. As such, the examiner, in essence, attributed the Veteran's right hand disorder to a post-service injury or disease. Thus, the Board finds that a right hand disability, to include degenerative changes of the right hand, is not etiologically related to an in service injury or disease, to include in-service exposure to ionizing radiation and chemicals. Accordingly, the Board concludes that service connection for a right hand disability, to include degenerative changes of the right hand, including as a result of in-service exposure to ionizing radiation and chemicals, is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.