Citation Nr: 21011666 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-28 211 DATE: March 2, 2021 ORDER Service connection for a right third finger disability is denied. FINDING OF FACT A right third finger disability did not manifest in active service or within one year of active service and is not otherwise related to the Veteran's active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right third finger disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had service in the United States Army and Army National Guard. The Veteran’s service included a period of active duty training from June 1973 to January 1974, and a period of active duty from July 1975 to February 1995. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision, in which the RO declined to reopen the claim of service connection for a right third finger disability. In August 2016, the Board remanded the claim for further development and adjudicative action; in April 2018, the Board reopened the claim, and again remanded the claim; and in July 2020, the Board again remanded the claim. The Board finds that the RO substantially complied with prior remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). As noted in the August 2016 Board decision, although the Veteran initially requested a board videoconference hearing in his May 2013 VA Form 9, he withdrew this request in an April 2015 statement. As such, there are no outstanding Board hearing requests. 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, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a threshold matter, veteran status must be established as a condition of eligibility for service connection benefits. See Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013). A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. §§ 3.6(a)-(d). The fact that a claimant has established veteran status for other periods of service does not obviate the need to establish veteran status for the period of ACDUTRA or INACDUTRA on which the claim is based. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to veteran's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999), vacated on other grounds sub nom; McManaway v. Principi, 14 Vet. App. 275 (2001) (citing Paulson, 7 Vet. App. at 469-70, for the proposition that if a claim "relates to period of [ACDUTRA], disability must have manifested itself during that period; otherwise, period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. The Board notes that the Veteran's period of initial period of active duty training is a form of ACDUTRA. 1. Entitlement to service connection for a right third finger disability The Veteran contends that he has a right third finger disability that is related to his period of active duty service. Specifically, he asserts that he hurt his right middle finger on March 9, 1977, and that his current disability is related thereto. See October 1998 Application for Compensation Service Treatment Records (STRs) show that the Veteran injured his left finger on March 9, 1977, and a March 1977 radiographic report reveals that the Veteran’s injury resulted in a left finger fracture. After service at an August 2000 VA general medical examination, the Veteran reported that he injured his right third finger and his left third finger during “military exercises” in 1978. VA treatment records show that the Veteran was seen for right hand finger pain in November 2017, and he has since been treated at VA for pain. The Veteran had a VA Hand and Finger Conditions examination in December 2018. The examiner diagnosed right hand long finger pain, and noted that the Veteran reported pain beginning in the late 1980s post injury with sutures and support. There was no post-service continuity of care. The Veteran reported daily constant pain, since the 1980s. The examiner noted no continuity of care, no daily intervention, no emergency room visits, and no hospitalizations. Diagnostic testing revealed hypertrophic degenerative findings of distal phalangeal joints, bilaterally of fifth fingers, as well as mild degenerative arthritis of the remaining fingers (including right middle finger). The metacarpophalangeal joints were maintained. The examiner noted an impression of bilateral degenerative arthritis of distal phalangeal joints, particularly more severe involving the fifth fingers. The examiner opined that the right middle finger pain was less likely than not caused by or incurred in service. The opinion was formed after review of the Veteran’s medical records, STRs, and an in-person interview. The examiner noted no evidence of a chronic right hand finger condition shown in the medical records either in service or post-service. The examiner noted a 1980s acute right-hand condition but no continuity of care, and noted bilateral degenerative joint disease, bilaterally. In October 2020, a clarification opinion was obtained from another VA physician. The examiner specifically reviewed the STRs, noting that there was evidence of swollen left fingers and rule out left finger fracture; and, reviewed the medical records including the November 2017 VA treatment records showing the Veteran was treated for pain in a finger on the right hand. The examiner reviewed the Veteran’s statements concerning a right finger fracture, as well as the December 2018 VA examination report. The examiner noted that the most common forms of arthritis in the hand are osteoarthritis, post-traumatic arthritis (after an injury), and rheumatoid arthritis. The examiner described osteoarthritis as a degenerative joint disease in which the smooth cartilage that covers the bone surfaces at the joints either is injured or wears over time. The examiner noted that the Veteran has degenerative joint disease of both hands. Importantly, the examiner opined that if the degenerative joint disease was limited to just the third finger on the right hand, the disease may be linked to post-traumatic (after injury) arthritis. Turning to whether the elements of a service connection claim are met, the Veteran has a current disability. See December 2018 VA examination report Disability Benefits Questionnaire (DBQ) (diagnosing (i) pain in the right hand and (ii) degenerative joint disease). As so, the dispositive issue is whether the Veteran has a right third finger disability that is related to service. In that regard, STRs from March 1977 reflect that the Veteran injured his left hand, not his right hand; and, there is no evidence of a right third finger injury at any time during the Veteran’s active service. Moreover, the October 2020 examiner specifically clarified that the STRs show that the Veteran’s in-service injury was limited to swollen finger in the left hand, and a left hand fracture. The Veteran has not provided any alternative explanation for how any right third finger disability is related to service. Rather, he has consistently asserted that his right middle finger was injured in the March 1977 incident which, as the STRs show, resulted in a fracture of a finger on the other hand. Notably, and as set forth above, the December 2018 VA examiner noted an in-service acute right-hand injury. Based on the STRs, as well as the clarifying October 2020 opinion, the evidence in the record suggests that this finding was a mistake—specifically, the acute in-service injury was the March 1977 injury to the left hand. In this regard, the April 2018 Board remand specifically instructed the December 2018 VA examiner to consider March 1977 STRs showing that the Veteran was treated for a right third finger injury in service. In the July 2020 remand, the Board similarly found that the prior April 2018 Board remand incorrectly attributed the left middle finger injury documented in March 1977 to the right middle finger. The Board remanded the case in part to provide the Veteran with an opportunity to respond and submit any additional evidence in support of his service connection claim for a right middle finger. Furthermore, and with regards to the diagnosis of pain in the right third finger, both the December 2018 examiner and the October 2020 VA examiner appear to attribute the pain to the degenerative joint disease. Specifically, the December 2018 examiner cited that the November 2017 VA treatment records, which show complaints of right third finger pain, were the first records of any complaints, treatment, or diagnosis of a right third finger disability since the Veteran left service; and, noted no continuity of care since service. Then, the October 2020 examiner clarified that the Veteran’s degenerative joint disease affects each of his fingers, and as so, the presence of the disease in the right third finger cannot be singled out as attributable to an acute injury. Each opinion was formed after review of the Veteran’s STRs and medical records, and the December 2018 examiner was further able to conduct an in-person examination with the Veteran. While the December 2018 examiner attributed an in-service injury of the left third finger to the right third finger, the opinion and the rationale upon which it is based are clearly worded and were formed with consideration for (i) the relevant medical evidence; (ii) the Veteran’s lay statements as to his unique right third finger disability picture; and (iii) the nature of degenerative joint disease and right third finger pain. The October 2020 examiner’s opinion was similarly formed with regard for (i) the STRs and medical records; (ii) the Veteran’s lay reports of his right third finger disability history; and (iii) the medical nature of the Veteran’s diagnoses. There is no probative medical evidence in the record to dispute either opinion. For those reasons, each opinion carries significant probative value. On the other hand, the Veteran appears sincere in his belief of a link between the right third finger disability and service. However, the record does not show that the Veteran has the requisite medical expertise to provide such an opinion, because the issue is complex in nature and requires specialized medical expertise, training, and skills. As a result, the Veteran’s lay belief that a link exists which would satisfy the “nexus” requirement of the service connection claim carries no probative value. The Board also notes that arthritis is one of the chronic diseases listed in 38 C.F.R. § 3.309(a). As noted above, evidentiary presumptions such as the chronic disease presumption do not apply to the Veteran's initial period of ACDUTRA service from June 1973 to January 1974. Nevertheless, the Board has considered whether service connection may be granted on a presumptive basis based on the Veteran's period of active duty service from July 1975 to February 1995. However, right third finger arthritis was not documented during the Veteran's active duty service, and there was no in-service manifestation sufficient to identify this disease entity. The pertinent regulations require that manifestations are "noted" in the service records, and that is not the case in this instance. The Board finds that the most probative evidence of record reflects that this disorder did not manifest until many years after the Veteran's active duty service. As a result, the Veteran is not entitled to service connection for right third finger arthritis on a presumptive basis, either as a chronic disease during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); Walker, 708 F.3d 1335-37. Therefore, chronicity is not established in service or within a year of separation. In light of the foregoing, the weight of the probative evidence is against finding that the Veteran has a right third finger disability that is related to service. There is no reasonable doubt to resolve in the Veteran’s favor, and as a result, the claim must be denied. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.