Citation Nr: 21008868 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-42 910 DATE: February 18, 2021 ORDER Entitlement to service connection for a left thumb tendon/punji stick wound residual is denied. REMANDED Entitlement to service connection for vertigo is remanded. Entitlement to a compensable rating for bilateral hearing loss prior to November 7, 2019, and in excess of 40 percent after November 7, 2019, is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability due to left thumb arthrodesis, left carpal tunnel release, hardware removal, interphalangeal fusion with internal fixation, and reexploration and fusion (in flexion) of the left interphalangeal joint is remanded. FINDING OF FACT A left thumb injury, to include a left thumb tendon injury as a residual of a punji stick wound, is not shown to have occurred during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left thumb tendon/punji stick wound residual have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1971 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in February 2013, July 2016, and July 2017 by the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in November 2018. The Board notes that an August 2020 rating decision granted an increased 40 percent rating for the Veteran’s bilateral hearing loss effective from November 7, 2019. The issues remaining on appeal have been accordingly revised. 1. Entitlement to service connection for a left thumb tendon/punji stick wound residual. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Generally, the evidence 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, 1166-67 (Fed. Cir. 2004). The term “disability” for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). A medical opinion based upon an inaccurate factual premise may be discounted entirely. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran contends that he has a left thumb tendon/punji stick wound residual as a result of active service. He reported that he sustained an injury to the left thumb during combat service in Vietnam that resulted in a tendon injury approximately one year after he returned home from service. His initial service connection claim was received by VA in May 2016. Service treatment records in this case are limited to a March 1971 enlistment examination and an associated report of medical history. The examination report noted the Veteran had a scar to the left palm. VA correspondence dated in January 2011 notified the Veteran of the efforts taken to obtain other service treatment records and of his responsibility in submitting additional information. The Veteran’s DD Form 214 shows he served in the Republic of Vietnam from September 1971 to April 1972, that he received training as a light vehicle driver, and that his military duties were related to the civilian occupation of chauffer. No combat-related medals, badges, or awards were listed. Records show he had national guard service from April 1972 to July 1981. VA treatment records include a July 2015 report noting the Veteran reported a two-year history of progressive numbness, pain, and weakness in the left hand. The examiner noted this was complicated by the fact that he had a long-standing history of a war injury that caused hyperextension of his left thumb interphalangeal joint. It was noted he related a story as to having sustained a laceration to the hand when he was in Vietnam and that after he returned from Vietnam felt a popping sensation in the hand with an inability to flex the interphalangeal joint of the left thumb since then. An examination revealed a transverse over the thenar eminence which the Veteran related to action in Vietnam. An August 12, 2015, report noted preoperative diagnoses of left carpal tunnel syndrome and remote history of left flexor pollicis longus (FPL) rupture with resultant hyperextension of the left thumb interphalangeal joint. It was also noted that the Veteran complained of hyperextension of the left thumb which he related to an injury several decades earlier. In his September 2017 VA Form 9 the Veteran reported that in 1971 during service in Vietnam he had been ordered to the base perimeter to prepare for an enemy attack. He described having placed his left hand on a punji stick spike that was approximately four to five inches long that went into his lower inside left thumb. He stated that a medic removed the stick in the field during a fire fight and that it had penetrated his left lower thumb about ¼ inch. He reported that afterward the wound did not seem to be bad and he kept it clean and covered. He reported that about one year after service the tendon in his thumb popped, but that he did not seek any treatment because he was homeless with no insurance. VA treatment records dated in April 2018 noted the Veteran had a combat-related injury when he was stuck with a punji stick in Vietnam. It was noted that this had severed a tendon that was not repaired. VA hand and finger examination in November 2019 included diagnoses of left degenerative arthritis, left osteoporosis with joint manifestations, and puncture wound to the left thumb. It was noted that the Veteran had a history of having a puncture by punji stick in 1971 while under fire in Vietnam. The examiner found it was at least as likely as not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. It was noted that the left palm scar pre-existing service in March 1971 was discounted as in no way connected to the thumb damage incurred during combat in Vietnam. The examiner found that presuming the Veteran had a wooden punji stick pierce his left thumb then his residual loss of function was more likely caused by the in-service trauma during combat. In a July 2020 addendum the examiner noted that his previous examination had revealed a 5 by .1 centimeter palmar scar that was unrelated to the Veteran’s thumb. The examiner summarized the pertinent post-service treatment record and found that it was less likely that a thumb injury was caused or related to service. It was noted that there was no evidence of a thumb injury in service and the examiner, in essence, questioned how the Veteran, who was a driver in service, would have been exposed to a situation where he might sustain a punji stick injury. The examiner further noted that the Veteran was shown to have had mallet finger in 2015 and how his tendon was ruptured was unknown, but explained that mallet injuries that caused FPL rupture injuries were usually caused by blunt trauma and were known as baseball finger from being hit directly on the end of the distal phalanx. Based upon the evidence of record, the Board finds that a left thumb injury, to include a left thumb tendon injury as a residual of a punji stick wound, is not shown to have occurred during active service. The Veteran’s service treatment records are incomplete and include only an induction examination report with an associated report of medical history. Although he is also shown to have had national guard service after his separation from active service, he does not contend, nor does the available record indicate, that he either reported or received treatment for a left-hand disorder during national guard service. In fact, in his September 2017 VA form 9 he stated he had not received any treatment associated with a pop in his left hand approximately a year after service which he believed was associated with the left thumb tendon. Reasonable efforts have been taken to assist him in obtaining evidence, including a retrospective medical opinion, and further VA assistance as to this matter would be futile. His service in the Republic of Vietnam is established and his status as a combat veteran for VA compensation purposes is conceded. The Board finds, however, that his statements as to having had a left thumb injury during service in Vietnam, as described, are found to be not credible due to inconsistency with the overall evidence of record. The medical evidence of record shows that in July 2015 the Veteran reported having sustained a laceration to the hand when he was in Vietnam and that after he returned from Vietnam having felt a popping sensation in the hand with a subsequent inability to flex the interphalangeal joint of the left thumb. An examination at that time was noted to have revealed a transverse over the thenar eminence which the Veteran related to action in Vietnam. In his September 2017 VA Form 9, the Veteran described having placed his left hand on a punji stick spike that penetrated his left lower thumb about ¼ inch. An April 2018 VA treatment report records a similar reported history of the Veteran incurring a puncture wound to the hand that severed a tendon. The overall evidence clearly demonstrates that the Veteran had a transverse palmar scar to the left hand prior to service. Such is clearly noted in the enlistment examination. However, as discussed, he has not only failed to report that injury more recently but he has also provided inconsistent statements as to the nature and extent of the alleged injury during combat service in Vietnam. The Board finds that the credible evidence of record demonstrates that a left thumb tendon/punji stick wound residual is not shown to have been incurred in service and that the preponderance of the evidence fails to establish that it is etiologically related to service. The July 2020 VA medical opinion in this case is persuasive that a left thumb disability was neither caused nor aggravated as a result of service. The opinion shows the Veteran had a left palm scar that pre-existed service and was unrelated to his left thumb disability. Moreover, the examiner explained that the specific type of left thumb injury he sustained was more commonly associated with blunt force trauma rather than the puncture wound injury the Veteran described. The Board recognizes that the examiner improperly dismissed the Veteran’s report as to having sustained a punji stick injury in combat as inconsistent with his duties as a driver without adequate rationale. However, the error was harmless based upon the additional, more persuasive, rationale provided. The examiner’s July 2020 opinion that the specific type of left thumb injury sustained was more commonly associated with blunt force trauma is shown to have been based upon a substantially accurate review of the evidence and to have otherwise adequately considered the credible lay statements and symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board acknowledges that VA medical evidence dated in July 2015, April 2018, and November 2019 related the Veteran’s left thumb disability to a combat injury and described the tendon rupture as longstanding. However, to the extent these medical opinions indicate a chronic left thumb injury was sustained in service or that a tendon injury was sustained during or developed soon after active service they are based upon an inaccurate factual premise and are discounted entirely. See Monzingo, 26 Vet. App. at 107. Consideration has also been given to the personal assertions of the Veteran that he sustained a left thumb tendon injury due to a punji stick wound. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In conclusion, the Board finds service connection for a left thumb tendon/punji stick wound residual is not warranted. When all the evidence is assembled VA is then 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. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. REASONS FOR REMAND 1. Entitlement to service connection for vertigo is remanded. 2. Entitlement to a compensable rating for bilateral hearing loss prior to November 7, 2019, and in excess of 40 percent after November 7, 2019, is remanded. 3. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability due to left thumb arthrodesis, left carpal tunnel release, hardware removal, interphalangeal fusion with internal fixation, and reexploration and fusion (in flexion) of the left interphalangeal joint is remanded. Although these matters were previously remanded, the Board finds that additional development is required for adequate determinations. A remand by the Board confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the November 2018 remand directives instructed the Agency of Original Jurisdiction (AOJ) to request access to records of “quality assurance review” as defined in 38 C.F.R. § 17.500(c) as to treatment and surgery for the left thumb disorder and left carpal tunnel syndrome conducted at the Samuel S. Stratton VA Medical Center or other VA entity from July 2015 to present. It was further noted that if VA authorities conclude that the records are not protected and access is granted the AOJ should associate copies of such records with the record. The available appellate record includes a September 4, 2019, response from the Stratton VA Medical Center stating that a determination had been made to disclose the information requested in full. Although copies of VA treatment records associated with the Veteran’s care were also provided, there is no indication that any “quality assurance review” documents were received. VA regulations under 38 C.F.R. § 17.501(a) provide that there are four classes of health care quality assistance reviews. These include (1) monitoring and evaluation reviews conducted by a facility, (2) focused reviews which address specific issues of incidents, (3) VA Central Office or Regional general oversight reviews to assess facility compliance, and (4) contracted external reviews of care. As to the vertigo issue, the November 2018 remand instructions requested an opinion from a VA physician to address whether the disorder was caused by or aggravated by his service-connected bilateral hearing loss and tinnitus. The physician was also instructed to consider and discuss medical records showing asymmetrical hearing loss and possible Meniere’s disease. Although a March 2020 VA medical opinion was obtained, the physician stated that no diagnosis of vertigo was provided because the Veteran had only two episodes in April 1972 and in 2006. It was noted that his history was consistent with benign positional vertigo without recurrence of symptoms since 2007. The physician did not consider and discuss medical records showing asymmetrical hearing loss and possible Meniere’s disease. Nor is it shown that other pertinent VA treatment records, such as a May 2016 audiologic evaluation noting he had episodes of vertigo for which he took meclizine, were adequately considered. The November 2018 remand also included a directive that the Veteran be provided an examination to fully assess the severity of his bilateral hearing loss and that the examiner comment on his report of intermittent episodes of complete loss of left ear hearing. Although a VA audiology examination was conducted in November 2019, the examiner did not comment on the Veteran’s report of intermittent episodes of complete loss of left ear hearing. The Board finds the failure to address this matter to be particularly significant in light of the degree of decline in the Veteran’s speech discrimination/word discrimination scores in the short period of time between the most recent examination and an April 2019 audiology evaluation. Therefore, additional development as to these matters is required prior to appellate review. The matters are REMANDED for the following action: 1. Appropriate action is required to obtain copies of any “quality assurance review” records, as defined in 38 C.F.R. § 17.500(c), as to treatment and surgery for the left thumb disorder and left carpal tunnel syndrome conducted at the Samuel S. Stratton VA Medical Center or other VA entity from July 2015 to present. If no such records exist or may not be released under applicable regulations, then a specific response must be requested and associated with the appellate record. 2. Obtain an addendum opinion from a VA physician or other appropriate medical specialist to determine the nature and etiology of any vertigo disability, manifest at any time during the appeal. The examiner must address whether the Veteran has, or had manifest during the appeal period, vertigo that at least as likely as not: i. had its initial onset in service or is otherwise etiologically related to the Veteran’s active service? ii. is proximately due to a service-connected disability? iii. underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Provide rationale to support the opinions. In so doing, the examiner must consider and discuss all pertinent medical records, including reports showing asymmetrical hearing loss, possible Meniere’s disease, and episodes of vertigo with meclizine medication treatment. 3. Schedule the Veteran for a VA audiology examination to determine the current severity of his service-connected bilateral hearing loss. A full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria must be provided. The examiner must comment on the Veteran’s report of intermittent episodes of complete loss of left ear hearing. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.