Citation Nr: 21008584 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 13-21 826A DATE: February 17, 2021 ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a right-hand arthritis, to include as secondary to service-connected left forearm disability, is denied. REMANDED Entitlement to service connection for bilateral ankle arthritis is remanded. Entitlement to service connection for a left-hand arthritis, to include as secondary to service-connected left forearm disability, is remanded. FINDINGS OF FACT 1. The Veteran’s current neck disability did not manifest until more than one year after separation and is not shown to be etiologically related to an in-service event, injury or disease. 2. The Veteran’s right-hand arthritis did not manifest until more than one year after separation and is not shown to be etiologically related to an in-service event, injury or disease, nor is it caused or aggravated by the service-connected left forearm disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for right hand arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to December 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in October 2016, March 2018, and March 2020. Following the March 2020 Board remand, the issue of service connection for left elbow disability has been granted in full and is therefore no longer before the Board for appellate consideration. In July 2016, the Veteran testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran 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, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (a). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Neck disability 2. Right hand arthritis The Veteran contends that he has a neck disability that is related to his service. Specifically, the Veteran contends he injured his neck in service in 1969 when he jumped out of his bunk and someone jumped on his neck and back. The evidence shows that the Veteran was diagnosed with degenerative disc disease of the cervical spine in 1996. Therefore, there is evidence of a current disability. The Veteran asserts his right-hand arthritis is due to service, to include as secondary to his service-connected left forearm injury in service. Imaging studies from February 2019 show degenerative changes in the fifth DIP joint and the first CMC joint of the right hand, thus a current disability is shown. As to an in-service event, injury or disease, the Veteran’s service treatment records show the Veteran complained of stiff neck and pain in the neck with decreased range of motion in August 1969. The Veteran was diagnosed with torticollis. Accordingly, there is evidence of an in-service injury to his neck and the issue remaining for consideration is whether the Veteran’s current neck disability is etiologically related to the in-service injury. Service treatment records are silent for complaints, treatment, or diagnosis for right hand arthritis. The Veteran’s service treatment records show he sustained lacerations to the left forearm and the three fingers of the left hand after falling through a glass window in January 1956. The wounds were sutured and repaired without further documented complaints or residuals during service. The July 1975 separation examination showed that the neck, spine, and upper extremities were clinically evaluated as normal. In his contemporaneous history, the Veteran did not report any problems with the neck or right hand. With respect to a nexus between the current neck disability and in-service event, the only competent medical opinion of record is the December 2020 VA opinion, which weighs against the Veteran’s claim. The December 2020 VA examiner stated the Veteran’s claimed neck disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran’s one documented neck complaint in August 1969 when he was diagnosed with torticollis and treated with medication management. The examiner noted the Veteran was diagnosed with degenerative disc disease, spinal stenosis, and radiculopathy decades after the neck complaint in service. The examiner explained that torticollis is a superficial injury resulting in spasming of the muscles of the neck. This does not involve spine. These are separate unrelated conditions. Muscle spasms due not result in the development of degenerative changes, stenosis and radiculopathy 30 plus years later. Regarding a nexus between the current right-hand arthritis and in-service event and/or secondary service connection, the only competent medical opinions of record are the December 2020 VA opinions, which weigh against the Veteran’s claim. The December 2020 VA examiner stated the Veteran’s claimed right-hand disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The December 2020 VA examiner stated the right-hand arthritis was less likely than not proximately due to or aggravated beyond its natural progression by the left forearm injury. The December 2020 VA examiner noted the Veteran sustained a laceration to the muscle of the left forearm which was surgically closed. The imaging studies performed on December 8, 2020 documents absence or deformity of the trapezium and erosive appearing changes of the base of the first metacarpal. The examiner explained that the arthritic changes of the right first metacarpal are a separate, unrelated condition from the laceration of the muscle of the left forearm. Arthritis can result from overuse, injury, aging or infection. The Veteran is right hand dominant and degenerative changes would be more likely to occur on the right hand versus the left. The Board finds that the December 2020 examiner’s opinions are due significant probative value. The VA examiner provided the opinion based on an understanding of the Veteran’s medical history, on the examiner’s own knowledge and expertise, and on an examination of the Veteran. Furthermore, the VA examiner provided rationale that explains the conclusions and gives insight into the medical aspects of the Veteran’s current neck disability and right-hand arthritis. See Nieves- Rodriguez, 22 Vet. App. at 295. The only evidence indicating an association between the current right-hand arthritis and neck disability and service are the Veteran’s assertions and the assertions of the Veteran’s spouse. The Veteran’s spouse reported the Veteran constantly complained of pain in his neck and hands after his return from his tour of duty in Southeast Asia. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of the Veteran’s neck disability and right hand arthritis are not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay testimony and the statement of the Veteran’s spouse are not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current neck disability and right-hand arthritis had their onset during active duty or are secondary to a service-connected disability, does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran or his spouse are otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of the neck disability and right-hand arthritis. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Further, when considering continuity of symptomatology, the Board finds the Veteran’s and his spouse’s statements of pertinent symptoms since service to not be credible given the combination of the lack of any findings of a chronic neck or right-hand arthritis in service, the Veteran’s denial of any neck or upper extremity symptoms upon retirement from service and the lack of medical evidence for many years after service. Thus, the Veteran’s and his spouse’s assertions are outweighed by the medical evidence of record, including the December 2020 VA opinions. The Board has also considered whether the Veteran is entitled to service connection for his neck disability and right-hand arthritis as a “chronic disease.” See 38 C.F.R. § 3.303 (b). Arthritis is included in the list of “chronic” diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with degenerative disc disease of the neck and right-hand arthritis over 20 years after his separation from service. The Veteran has not argued, and the record does not show, that he was diagnosed with arthritis or any other “chronic” disease listed under 38 C.F.R. § 3.309 (a) during service or within one year of separation from service. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. In light of the above, the preponderance of the evidence is against the claims and the benefit-of-the-doubt doctrine is not for application. The claims therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). REASONS FOR REMAND 1. Bilateral ankle disability 2. Left hand arthritis The Veteran seeks entitlement to service connection for a bilateral ankle disability and left-hand arthritis. Pursuant to the previous Board remand, the Veteran was provided VA examinations as to his bilateral ankle disability and his left-hand arthritis in December 2020. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Regarding the claimed bilateral ankle disability, the December 2020 VA examiner found the Veteran did not have a current diagnosis of bilateral ankle arthritis based upon the December 8, 2020 imaging studies. However, the examiner noted the Veteran’s diagnosis in February 2020 of a bilateral ankle sprain. The December 2020 VA examiner provided negative nexus opinions for entitlement to service connection for the bilateral ankles because the Veteran’s service treatment records do not document an ankle injury or complaint during service. The Board finds the examiner’s rationale is inadequate, as it relies entirely on the absence of contemporaneous medical records indicating an injury in service. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Regarding the claim for service connection for a left-hand disability, the December 2020 VA examiner found the claimed condition was less likely than not incurred in service or caused or aggravated by the left forearm injury. The negative nexus opinions were solely predicated on the fact that the December 2020 imaging studies did not show arthritic changes in the left hand. First the examiner did not reconcile the absence of left-hand degenerative arthritis in the December 2020 imaging studies with the February 2019 imaging studies that showed moderate to severe degenerative changes in the left hand. Second, the Board is cognizant of the recent holding in Saunders v. Wilkie which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The December 2020 VA hand examination showed evidence of left-hand pain causing decreased range of motion and functional impairment. In sum, pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. While the examiner did not provide a left-hand diagnosis, the examiner acknowledged the Veteran’s reports of hand pain. Thus, in light of the holding in Saunders, an addendum VA opinion is warranted to determine whether the Veteran’s left-hand pain which causes functional impairment is related to service or secondary to his service-connected left forearm disability. See 38 C.F.R. § 3.159 (c)(4)(i). The matters are REMANDED for the following action: 1. Arrange to provide an addendum VA opinion (examination if necessary) to address the etiology of his bilateral ankle disability. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (that is, a 50 percent or higher degree of probability) that the bilateral ankle disability is related to the Veteran’s service. 2. Arrange to provide an addendum VA opinion (examination if necessary) to address the etiology of his left-hand disability. Following a review of the record, to include addressing the February 2019 imaging showing left hand degenerative changes, the examiner should offer an opinion as to the following: (a.) Whether it is at least as likely as not (that is, a 50 percent or higher degree of probability) that the left-hand disability is related to Veteran’s service, to include the incident where the Veteran lacerated his left forearm; and (b.) Whether it is at least as likely as not (that is, a 50 percent or higher degree of probability) that the Veteran’s left-hand disability is part and parcel of his service-connected left forearm injury. (c.) If the Veteran’s left hand disability is not part and parcel of such service-connected disability, whether the left hand disability is at least as likely as not (that is, a 50 percent or higher degree of probability) proximately due to or aggravated by the Veteran’s service-connected left forearm injury. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, Associate 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.