Citation Nr: 21008745 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-55 224 DATE: February 17, 2021 ORDER Service connection for a disability of the left index finger is denied. Service connection for a disability of the right index finger is denied. Service connection for a disability of the left middle finger is denied. Service connection for a disability of the right middle finger is denied. Service connection for a disability of the left ring finger is denied. Service connection for a disability of the right ring finger is denied. Service connection for a disability of the left little finger is denied. Service connection for a disability of the right little finger is denied. Service connection for a low back disability is denied. Service connection for a left ankle disability is denied. REMANDED Entitlement to service connection for a disability of the left thumb. Entitlement to service connection for a disability of the right thumb. FINDINGS OF FACT 1. The Veteran does not exhibit a current disability of the left index finger. 2. The Veteran does not exhibit a current disability of the right index finger. 3. The Veteran does not exhibit a current disability of the left middle finger. 4. The Veteran does not exhibit a current disability of the right middle finger. 5. The Veteran does not exhibit a current disability of the left ring finger. 6. The Veteran does not exhibit a current disability of the right ring finger. 7. The Veteran does not exhibit a current disability of the left little finger. 8. The Veteran does not exhibit a current disability of the right little finger. 9. A low back disability is not related to service. 10. There was no in-service event, disease, or injury involving the left ankle. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability of the left index finger are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for a disability of the right index finger are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for service connection for a disability of the left middle finger are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 4. The criteria for service connection for a disability of the right middle finger are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 5. The criteria for service connection for a disability of the left ring finger are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 6. The criteria for service connection for a disability of the right ring finger are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 7. The criteria for service connection for a disability of the left little finger are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 8. The criteria for service connection for a disability of the right little finger are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 9. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 10. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2007 to July 2011. This appeal is before the Board of Veterans’ Appeals (Board) from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In September 2020, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted 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). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for a disability of the left index finger 2. Entitlement to service connection for a disability of the right index finger 3. Entitlement to service connection for a disability of the left middle finger 4. Entitlement to service connection for a disability of the right middle finger 5. Entitlement to service connection for a disability of the left ring finger 6. Entitlement to service connection for a disability of the right ring finger 7. Entitlement to service connection for a disability of the left little finger 8. Entitlement to service connection for a disability of the right little finger The Veteran claims service connection for disabilities in his fingers. Service treatment records do not reflect any symptoms of or treatment for any disability of the fingers apart from the thumbs. A March 2008 record showed treatment for a laceration of the left thumb and a September 2008 record showed treatment for tenosynovitis of the right thumb. VA treatment records reflect that in March 2016 the Veteran was observed to have limitation of motion in both thumbs but no symptoms in his remaining fingers. At his September 2020 hearing, the Veteran reported that after he had surgery on his thumb in service, he also had to have physical therapy on his fingers. He did not describe any current symptoms. The Board finds that the evidence weighs against a finding of a current disability in the fingers on either of the Veteran’s hands, excepting his thumbs. VA treatment records show current symptoms in his thumbs but not the remaining fingers. He described a history of physical therapy in his fingers, but at no point has he described current symptoms, nor are they evident in any treatment records. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of current disabilities and service connection must therefore be denied. 9. Entitlement to service connection for a low back disability The Veteran claims service connection for a low back disability. Service treatment records do not reflect any symptoms of or treatment for any disability of the low back. VA treatment records reflect that in March 2016 the Veteran was diagnosed with low back pain with left radiculopathy. X-rays were normal. Private treatment records include a February 2017 prescription for an x-ray, which lists as an indication “chronic low back pain due to his time in military.” The phrase “due to his time in military” appears to have been added separately in altered handwriting. At his September 2020 hearing the Veteran stated that he hurt his low back in service from carrying equipment and being jostled in vehicles. He stated that he regularly asked for ibuprofen during deployment but was never treated beyond that. The Board finds that the evidence weighs against a finding that a low back disability is related to service. The Veteran has stated that his back pain arose in service, but there is no evidence of such pain in service treatment records despite ample record of other injuries. He provided an x-ray prescription, altered to add the phrase “due to military service” without any initialing by the signing physician. The evidence thus weighs against a finding that this addition was provided by the physician. As there is no competent indication of a relationship to service, remand for a VA examination is not required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). For these reasons, the Board finds that the evidence weighs against a finding that a low back disability is related to service. Service connection is therefore denied. 10. Entitlement to service connection for a left ankle disability The Veteran claims service connection for a left ankle disability. Service treatment records do not reflect any symptoms of or treatment for any disability of the left ankle. VA treatment records reflect that in March 2016 the Veteran was diagnosed with bilateral ankle stiffness. X-rays were normal. At his September 2020 hearing, the Veteran reported that he injured his left ankle in service when he hurt his left knee. He stated that his ankle hurts when he puts weight on it. The Board finds that the evidence weighs against an in-service event, disease, or injury involving the left ankle. The Veteran has stated that his ankle pain arose concurrent with his knee injury, but there is no evidence of such pain in service treatment records despite ample record of the knee injury. For these reasons, the Board finds that the evidence weighs against an in-service event, disease, or injury involving the left ankle. Service connection is therefore denied. As the evidence weighs against a finding of an in-service event, remand for a VA examination is not required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). REASONS FOR REMAND 1. Entitlement to service connection for a disability of the left thumb is remanded. 2. Entitlement to service connection for a disability of the right thumb is remanded. The Board finds that the Veteran has an unsatisfied notice of disagreement for the issues of service connection for disabilities of the bilateral thumbs. As discussed above, service treatment records include a March 2008 record showing treatment for a laceration of the left thumb and a September 2008 record showing treatment for tenosynovitis of the right thumb. The Veteran’s November 2015 claim was for service connection for “right and left fingers.” In adjudicating the Veteran’s claim, a March 2016 rating decision clearly construed “fingers” to include the thumbs, as it referenced the March 2008 service treatment record showing a left thumb laceration. Service connection was denied based on a finding of no current disability. The claim was construed as two issues: one for fingers of the left hand and one for fingers of the right hand. Two weeks after the March 2016 rating decision, the Veteran presented to a VA medical center and was noted to have limitation of motion in both thumbs. The same day he submitted a statement asking that the March 2016 rating decision be reconsidered. In reconsidering the claim, the August 2016 rating decision took the two issues considered in the prior rating decision and considered them as eight separate issues for each finger, inexplicably omitting any consideration of the thumbs. The Veteran’s August 2016 notice of disagreement – received within the one-year appeal period of both rating decisions – explicitly disagreed with the denial regarding left and right thumbs and fingers. The September 2016 statement of the case did not address the disagreement regarding the Veteran’s thumbs, nor has any other statement of the case. His October 2016 substantive appeal explicitly stated that he wished to perfect his appeal regarding his thumbs. At his September 2020 when asked about his claims regarding his fingers, he began to speak of his thumbs and understandably stated that he believed his thumbs were a part of the issues on appeal. The Board therefore finds that the Veteran’s disagreement has not been satisfied. The receipt of the notice of disagreement vests jurisdiction with the Board for purposes of ensuring that a statement of the case is prepared on this issue. Where a notice of disagreement is filed, but a statement of the case has not been issued, the Board must remand the claim to direct that a statement of the case be issued. See 38 C.F.R. § 20.904(c); Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Provide a statement of the case to the Veteran the issues of entitlement to service connection for disabilities of the right and left thumbs. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.