Citation Nr: 21009676 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-22 637 DATE: February 23, 2021 ORDER Service connection for a left hand disability, to include as secondary to service-connected disabilities, is denied. Service connection for a right hand disability, to include as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. A left hand disability was not present im service or for years thereafter, and is not etiologically related to service or a service-connected disability. 2. A right hand disability was not present im service or for years thereafter, and is not etiologically related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hand disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2019). 2. The criteria for service connection for a right hand disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1977. In July 2017, January 2019 and July 2020, the Board remanded the issues on appeal for additional development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2018); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including arthritis, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for a left hand disability, to include as secondary to service-connected disabilities 2. Service connection for a right hand disability, to include as secondary to service-connected disabilities The Veteran contends that his currently diagnosed left and right hand disabilities are directly related to active service, or alternatively, secondary to his service-connected low back disability or service-connected cervical spine disability with bilateral upper extremity radiculopathy. A left or right hand disability was not diagnosed until many years after service, and there is no competent evidence to establish that any current left or right hand disability is due to any event or incident of the Veteran's period of active duty or related to a service-connected disability. The Veteran reported that he has experienced hand pain since 1974 and swelling and locking of the hands since 1979. However, service treatment records do not show evidence of a hand disability during active duty or at discharge. VA treatment records dated many years after discharge show complaints of bilateral hand locking. See August 1986 VA treatment records from the Hampton VA Medical Center. Private treatment records also show X-ray evidence of bilateral hand osteoarthritis in September 2010. October 2017 VA hand examination shows a diagnosis of degenerative arthritis, bilaterally. More recent VA treatment records show complaints of bilateral hand pain. However, the evidence does not indicate that the diagnosed left or right hand arthritis is due to any event or incident of the Veteran's period of active duty or to a service-connected disability, including his low back disability and his cervical spine disability with bilateral upper extremity radiculopathy. In this regard, the October 2017 VA examiner who diagnosed bilateral degenerative arthritis of the hands opined that the bilateral hand disability was less likely than not related to service. The examiner’s rationale was that there was no evidence of a hand condition or arthritis during service and arthritis was diagnosed multiple years post-service. Therefore, the examiner concluded that a nexus was not established. The examiner also opined that the bilateral hand arthritis was not caused by or aggravated by the service-connected low back disability. The rationale was that the two conditions are not medically related, and the claimed bilateral hand disability is a separate entity entirely from the service-connected low back disability and unrelated to it. The examiner also noted that the medical literature does not support a medical relationship between the bilateral hand arthritis and the low back disability. An October 2019 VA examiner opined that the diagnosed bilateral hand arthritis was less likely than not related to service, as there was no evidence of a hand injury in service and 2011 and 2012 hand X-rays were normal. The examiner also opined that the bilateral hand arthritis was not caused or aggravated by the service-connected cervical spine disability with radiculopathy of the upper extremities. The rational was that the two conditions are not medically related; the claimed disorder is a separate entity entirely from the service-connected condition; and the medical literature does not support a medical relationship between the conditions and therefore, a nexus has not been established. The examiner also noted that the Veteran was diagnosed with hand pain, not otherwise specified with normal X-rays in 2012. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. Because the October 2017 and October 2019 examiner’s negative opinions were based in part on a lack of evidence of a hand disability during service, the Board found that portion of the examiners’ opinions inadequate. As such, in November 2020, the Veteran was afforded another VA examination with a medical opinion. The examiner opined that the Veteran’s bilateral hand arthritis was not caused by military service because he did not injure his hands during service and he was never seen for hand pain while he was in the military. The examiner explained that since the Veteran did not injure his hands during military service, his osteoarthritis is not traumatic, and the only other causes of osteoarthritis are genetics and age. The examiner also opined that the bilateral hand arthritis was not caused by upper extremity radiculopathy because radiculopathy is decreased nerve function, secondary to degenerative disc disease, while osteoarthritis is due to degenerative changes and inflammation of the joints, and the two conditions are completely unrelated. The examiner concluded further that the Veteran’s arthritis of the hands is secondary to genetics, age and injury, and is completely unrelated to radiculopathy, which is a condition of the nerves, not the joints. The examiner noted that it is well known that radiculopathy is a neurological condition, which can cause pain, numbness, tingling and weakness. However, this is completely separate from osteoarthritis, which is a degenerative and inflammatory condition of the joints, causing aching joint pain and stiffness. The examiner explained further that the Veteran may have hand pain secondary to radiculopathy, but this would be a symptom of his service-connected condition rather than a separate condition. The Veteran has two diagnoses to explain hand pain, which are completely separate and unrelated diagnoses: service-connected upper extremity radiculopathy and osteoarthritis of the hands, which is age-related and was diagnosed in 2017. There is no conflicting medical opinion of record. There is no other evidence, VA or private, which indicates that the Veteran's right or left hand disability may be related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of a left or right hand disability, the Board notes that this passage of time weighs significantly against a finding of direct service connection for a left or right hand disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that his left and right hand disabilities are due to events during his active service. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed left and right hand disabilities and his active service or events therein, or his left and right hand disabilities and a service-connected disability, as it would require medical expertise to say that the current left or right hand disability, identified after service, is the result of an in-service disease or injury or a service-connected disability. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his left or right hand disability. 38 C.F.R. § 3.159 (a)(1), (2) (2019). There is no competent evidence relating the Veteran's left or right hand disabilities to any event in his active service or to a service-connected disability. Absent such evidence, the Veteran's claims must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.