Citation Nr: 21021543 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-12 250 DATE: April 13, 2021 ORDER Entitlement to service connection for a lumbar spine disability, diagnosed as spondylolisthesis and degenerative disc disease (DDD), is dismissed. Entitlement to service connection for a right-hand disability is denied. Entitlement to service connection for a left-hand disability is denied. FINDINGS OF FACT 1. In June 2020 the agency of original jurisdiction (AOJ) granted service connection, for the entirety of the period on appeal, for the Veteran’s lumbar spine disability. 2. There was no in-service injury, accident, incident, or disease affecting the Veteran’s right hand. 3. There was no in-service injury, accident, incident, or disease affecting the Veteran’s left hand. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim for service connection for a lumbar spine disability, diagnosed as spondylolisthesis and DDD, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a right-hand disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right-hand disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from February 1966 to February 1969. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) April 2013 rating decision of the AOJ. In September 2018 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the September 2018 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. Service Connection 1. Entitlement to service connection for a lumbar spine disability, diagnosed as spondylolisthesis and degenerative disc disease The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The Veteran was granted service connection for his lumbar spine disability in a June 2020 rating decision. The grant of service connection encompasses the entire period of appeal. Because this is considered a full grant of the benefits sought, this issue is dismissed as moot. See Grantham v. Brown, 114 F. 3d. 1156 (Fed. Cir. 1997). 2. Entitlement to service connection for a right-hand disability 3. Entitlement to service connection for a left-hand disability The Veteran contends that his bilateral hand disabilities are due to his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). 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. Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has been diagnosed with degenerative arthritis in both his left and right hands. Therefore, the Board finds that the first Shedden requirement necessary to establish service connection has been met. The Veteran’s service treatment records (STRs) show no evidence of an in-service injury to either hand. In February 1966, the Veteran injured his left wrist when a generator fell on him, but medical imaging of his hands showed no damage. Furthermore, at no point during his active duty service did the Veteran complain of any pain, injury, or condition affecting either hand. At his January 1969 separation examination, the Veteran checked the box indicating he had concerns regarding his “upper extremities.” However, the Veteran only noted that his wrist (which was injured in the aforementioned accident) still bothered him. There is no mention of hand pain, injuries, or conditions. The examining physician noted that the Veteran experienced several injuries while in-service, including to his back, wrists, and left knee, but they did not find any issues regarding the Veteran’s hands. There is no evidence of any condition or disease affecting the Veteran’s hands until 2019, about 50 years after the Veteran separated from service, when he was diagnosed with arthritis. Prior to that, all imagining of his hands were “essentially negative.” The Board acknowledges that the Veteran experienced injuries to his left and right wrists in 1966 and 1967, respectively. However, the Veteran denied injuring his hands while in-service, and his STRs show no documentation regarding treatment for any type of hand condition. The Board notes that over the course of the appeal the Veteran has claimed his hands hurt while in-service. However, the Board finds that the Veteran’s contemporaneous statements made to his in-service treatment providers to be more probative than his current statements regarding the onset of his bilateral hand pain. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence); Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran; affirming Board decision that cited from MCCORMICK ON EVIDENCE (3rd ed.1984) for the proposition that “memory hinges on recency” and that earlier statements are generally more trustworthy than later ones). (Continued on the next page) As the preponderance of the evidence is against finding an in-service injury, disease, accident, or condition affecting either of the Veteran’s hands, the Board finds that the second Shedden element necessary to establish service connection has not been met, and the Veteran’s claim must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). SONJA S. AN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.