Citation Nr: 21023320 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-09 323 DATE: April 20, 2021 ORDER Entitlement to service connection for a right hand disability is denied. REMANDED Entitlement to service connection for an ear drum disability is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a right hand disability that began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to 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 FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to April 1985. In October 2005, the agency of original jurisdiction (AOJ) issued an administrative decision finding that a statutory bar to benefits under 38 C.F.R. § 3.12(c) existed for the Veteran’s period of active service from July 1982 to April 1985 (“second period of service”). In February 2006, the AOJ notified him that his second period of service did not entitle him to VA benefits. However, the notice also stated that eligibility for VA benefits was established for his prior active service from July 1978 to July 1982 (“first period of service”). The Veteran testified before the undersigned Veterans Law Judge at a February 2017 Board Hearing held at the Regional Office (RO). The claims file contains a transcript of the hearing. In a December 2018 Board Decision, the above-referenced claims were reopened, then remanded to the RO for further evidentiary development and initial adjudication. The RO has substantially complied with the Board’s remand instructions with respect to the above-listed claims, so the Board may proceed to their merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). However, because of new medical findings since the prior decision, the right ear drum claim will be remanded for further development. In the December 2018 Board Decision, the Board also remanded claims of entitlement to service connection for a right knee disability, left arm laceration residuals, and a left arm scar for the issuance of a statement of the case. The RO issued a May 2019 SOC addressing those issues. The Veteran did not timely file a VA Form 9 to perfect an appeal of those claims, so they have not returned to the Board. Duties to Notify and Assist The Veteran’s representative argued that, if service connection is not granted for a right hand disability, the Board should “remand this case for further development, particularly as there are no documents available which stated that this veteran injured his right hand as the VA has assumed.” See March 2021 Written Brief Presentation. As also discussed below, VA has determined that the Veteran’s service records are unavailable. See September 2006 Formal Finding of Unavailability of Service Medical Records. Moreover, as set forth in the Formal Finding, the Veteran was notified of this finding and informed of alternate methods of substantiating his claims. Id.; see also August 2006 Notification Letter. The Veteran’s representatives did not specify what further development they believe is necessary or might produce helpful evidence. The Veteran has not identified any additional sources of evidence that VA might help him locate and obtain. The Veteran’s claim is being denied on the basis that the evidence is against finding that he injured his hand during his active service in the early 1980s. VA has attempted to obtain all identified relevant documents that might corroborate the Veteran’s allegations regarding events in 1981 and 1982. Absent identification of additional evidence or sources of evidence that might tend to prove or disprove his contentions, VA has satisfied its obligation to provide assistance in developing the claim. Notwithstanding these boilerplate requests for “further development”, the Veteran has not raised any specific issues with the duty to notify or duty to assist, or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to discuss VA’s compliance with the duties to notify and assist. 1. Entitlement to service connection for a right hand disability The Veteran contends that he injured his hand during his first period of active service while participating in martial arts. See February 2017 Board Hearing Tr. at 13-14 (stating that he “broke” a knuckle while breaking a board during karate); July 2006 VA Progress Note (documenting the Veteran’s report that he fractured his hand in 1981 while in the military and that it was treated with casting); but compare May 2010 VA Form 21-4138 (claiming “Limitation of Motion of my Thumb happened during my good period of service) with February 2013 VA Progress Note (complaining of numbness and tingling in the right 5th digit, the little finger, and reporting “fracturing his 5th metacarpal and having to be casted many years ago while in the military”) and January 2013 VA Progress Note (documenting complaints of right wrist and hand pain while typing and diagnosing carpal tunnel syndrome). 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence is against finding that the Veteran has any right hand disability (to include diagnosed carpal tunnel syndrome and generalized hand pain) that began during active service, or is otherwise related to an in-service injury, event, or disease. The preponderance of the evidence weighs against finding that the claimed in-service fracture occurred during the Veteran’s first period of active service. While the Veteran is competent to report that he fractured a knuckle while practicing martial arts, his reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). As alluded to above, the Veteran has claimed that he has a limitation of motion of the thumb that began during his service and that he fractured his 5th metacarpal in 1981 which resulted in a cast on the hand (described at his Board hearing as a fracture of the knuckle on his little finger). While these two statements are not necessarily contradictory, they do suggest two versions of the same reported event, one affecting the thumb and the other affecting the little finger. The undersigned had the opportunity to observe the Veteran’s demeanor during the hearing and found the Veteran not credible with respect to the claimed in-service injury. See Arneson v. Shinseki, 24 Vet. App. 379, 382-383 (2011) (noting that “the assessment of the credibility of the veteran’s sworn testimony is a function for the [Board]” and citing cases in support of the proposition that deference to the Board regarding the credibility of sworn testimony is due, in part, to the Board’s opportunity to observe demeanor); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting importance of observing demeanor, tone of voice, and consistency with other evidence in assessing credibility of a witness). In addition, the Board notes that the first indication in the record of an injury to the right hand during service is the Veteran’s initial claim. See October 2005 VA 21-526; Caluza, 7 Vet. App. at 511; see also Cartright, 2 Vet. App. at 25 (interest may affect the credibility of testimony). The Veteran claims significant residuals of the fracture (to the hand, thumb, or little finger, depending on the document) that began during service (e.g., difficulty and pain in the hand and wrist while lifting heavy boxes), but the Veteran has not provided any treatment records reflecting complaints of symptoms or treatment related to his hand prior to his claim for benefits. Particularly given the Board’s assessment of the Veteran’s credibility on this topic at his hearing, the Veteran’s self-serving statements to medical providers concurrent with filing a claim for benefits are entitled to very little probative value. The Veteran has also submitted buddy statements from C.D. who stated that he was a member of the United States Marine Corps who was stationed in Okinawa, Japan at the same time as the Veteran. See October 2011 Buddy Statement (“I... was a member of the United States Marine Corp [sic] station [sic] in Okinawa, Japan.”). C.D.’s statement indicated that, in “the spring of 1982,” he saw the Veteran “with his hand in [a] cast” and that he joked with the Veteran “that his wife hit him.” See October 2011 Buddy Statement. At his Board hearing, the Veteran identified C.D. as his cousin who happened to be in Okinawa. See February 2017 Board Hearing Tr. at 11 (“one day I was talk to my cousin about it and, uh, he happen to be in Okinawa with me, he remind me”). According to the Veteran, he was talking with his cousin and his cousin reminded him that he had “talked to [the Veteran] and [the Veteran’s] wife” and the Veteran was holding their baby in his left arm because he had a cast on his right arm. Again, these accounts are not necessarily contradictory. However, the details differ in some respects and neither the Veteran nor his lay witness have provided any corroboration that either of them were in Okinawa in the spring of 1982 or any other time. Moreover, the undersigned had the opportunity to observe the Veteran recount his version of this meeting and his cousin’s recollection of events. The Board finds the buddy statement is entitled to very little probative weight because of the inconsistencies with the Veteran’s own account and the unlikelihood that key details can be accurate in both the Veteran’s report of his injury and recovery and his cousin’s recollection. Most importantly, in addition to the discrepancies in recalled details noted above, the Veteran alleges that he fractured his 5th metacarpal in 1981. The Board notes that it is a matter of common knowledge that patients do not typically remain in casts for broken bones in the hand longer than one or two months. If the Veteran broke his little finger in 1981, it is unlikely that he would still be in a cast on or sometime after March 1982, which is nearly a full three months into the new year. In making this observation, the Board acknowledges that the Veteran’s cousin might not have been referring to technical spring, so could have been referring to a time earlier in the year. However, the Board’s task is to determine what happened to the equipoise standard (“at least as likely as not”), rather than what is possible. Here, the discrepancies in the alleged timing of the injury and the meeting (with a cast), the lack of corroboration that C.D. was in the Marine Corps (at the time or even ever), the lack of corroboration that they had overlapping tours in Okinawa, and the discrepancies in details regarding the meeting all reduce the reliability of the statements. In making this finding, it is important to note that the timing of the injury is crucial. If it occurred in 1981 or early 1982, it would qualify for benefits. If, instead, it occurred after July 10, 1982, then it would not have occurred during a qualifying period of active service. Again, it is not impossible that the years indicated by the Veteran and his lay witness could fit the timeline (a late 1981 injury and a cast remaining on his hand/arm until later February would be reasonably consistent with the two accounts), but this timeline is not the most natural reading of the various statements which appear more likely to be in tension. This raises the possibility that the witnesses’ recollections of the relevant dates are not reliable or, alternatively, the recollections of the facts themselves are not reliable. The Board acknowledges that the record contains, through no fault of the Veteran, only a very limited number of service treatment and military personnel records for the relevant time. See September 2006 Formal Finding of Unavailability of Service Medical Records. When a Veteran’s service records are unavailable through no fault of his own, VA has heightened duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 370-72 (2005). Also, when VA is unable to produce records that were once in its custody an explanation should be given a claimant as to how service treatment records are maintained, why the search that was conducted constitutes a reasonably exhaustive search, and why further efforts are not justified. 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1); Dixon v. Derwinski, 3 Vet. App. 261, 264 (1992). The Veteran was so notified. See, e.g., August 2006 Letter to Veteran. Given this, the Board finds that any further attempts to obtain the missing service records would be futile. The Board also acknowledges its heightened duty to provide reasons and bases for its findings and conclusions. Because there are very limited service records and none which reference a hand injury or document the presence or absence of hand symptoms during the relevant period (to include no discharge examination), the Board has carefully considered the only available evidence (the lay statements) on the issue of an in-service injury to the right hand. For the reasons described above, the Board has found the lay evidence insufficiently reliable to place the issue of an in-service right hand injury in equipoise. The Veteran was informed of the types of evidence that could be used to establish his claim notwithstanding the absence of service records, but has not produced any documentation (e.g., photographs of him in a cast, contemporaneous correspondence, C.D.’s military records). The only evidence he has produced other than his own lay statements are those of his cousin, C.D., which are equally uncorroborated by any documentation and, as noted above, make factual allegations that are relatively implausible in light of the Veteran’s testimony (e.g., an injury in 1981 that was treated with a cast, the Veteran still in a cast in the spring of 1982). The Board briefly notes that the RO referenced an incident of domestic violence as a possible cause of the right hand injury. The record contains documentation of that incident which, in fact, is the reason the Veteran’s service after July 10, 1982 is not qualifying service. See Military Personnel Records (documenting the Veteran’s December 1983 conviction for “striking [his wife] abt the face and body w/ his hands and fist” on or about September 25, 1983). The June 2020 SSOC first incorrectly states, with respect to the evaluating C.D.’s statements, that an injury in the spring of 1982 “would have been during [the Veteran’s] dishonorable period of active duty.” This is not accurate as his dishonorable period of active duty begins in the summer of 1982. However, as noted, the timing related by C.D. raises questions about reliability given the timeline provided by the Veteran. The June 2020 SSOC also weighs against C.D.’s statement “the objective evidence of your military personnel records showing that you hit your wife with your hands.” The RO concluded that an injury to the hand in that situation “would not be considered in the line of duty as it would be due to willful misconduct.” While the statement is true, it fails to account for the claimed timing of the injury and the timing of the Veteran’s willful misconduct in assaulting his wife. As noted above, the crime occurred in 1983, so does not provide an alternate explanation for an alleged hand injury in 1981 (or casting in 1982). However, to the extent there were an undocumented hand injury during the Veteran’s service, this is the only documented incident that might cause a hand injury. The Veteran’s representative argues, accurately, that the charging documents do not identify which fist the Veteran used to hit his wife, see March 2021 Written Brief Presentation, but the charging documents do indicate he used both hands. The Board gives no probative weight to this incident as an alternate source of the claimed hand injury, because the record does not indicate that the Veteran was injured when he struck his wife with his “hands and fist.” The example is useful in illustrating how little reliable evidence there is to reach equipoise on whether there was an injury to the Veteran’s right hand in the early 1980s and, if so, whether the injury was due to the causes the Veteran asserts and at the time he asserts. The preponderance of the evidence weighs against finding that the Veteran experienced an in-service injury, event, or disease, to include the alleged right hand injury in 1981, which may be associated with any current right hand disability or symptoms. Entitlement to service connection for a right hand disability is denied. REASONS FOR REMAND 1. Entitlement to service connection for an ear drum disability is remanded. The Veteran contends that he had a “busted ear drum” (right) in service and that, in addition to his service-connected tinnitus (and separately claimed hearing loss), he also experiences loss of balance and ear pain. See February 2017 Board Hearing Tr. at 6 and 19 (“what problems do you think you’re having no that are because of [the “busted ear drum” in service]? I still be off balance, still be off balance and sometime, even right now, sometime at night-time I be hearing, I be looking around.”); March 2021 Written Brief Presentation. Subsequent to the December 2018 Board Decision which remanded the ear drum disability claim, the Veteran underwent an audiological examination that indicated the Veteran had moderate sensorineural hearing loss (though with low test reliability) in the right ear, but not in the left ear. See February 2019 VA Audiology Note (“Otoscopy completed, cerumen, bilaterally, unable to view TM.”; documenting complaints of hearing loss and ear discomfort, pain, and pressure). This asymmetrical presentation of ear symptoms provides sufficient indication that there might be an association between the conceded perforated right ear drum in 1981 and the current right ear symptoms to warrant a VA examination and opinion. The most recent June 2012 VA audiological examination found no hearing loss disability and the etiological opinion addressed noise exposure, but not the perforated ear drum. In addition, the facts have changed sufficiently since 2012 to warrant an updated examination and an opinion specifically addressing whether the Veteran has any disability associated with the 1981 perforation of the right ear drum. See, e.g., March 2019 VA ENT Consult (documenting the Veteran’s complaints of hearing going in and out, but also that the Veteran had “not been having any significant dizziness and no vertigo.”; also noting that the Veteran “does describe occasional short periods of lightheadedness”; “Physical examination [of] the eardrums and canals are normal. There is no evidence for fluid or infection[,] both tympanic membranes are normal.”; requesting MRI to further evaluate the Veteran’s complaints). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his claimed right ear drum disability (to include both audiological and otoscopic findings as well as any other examination or testing deemed necessary). The examiner must review the claims file. The examiner is asked to provide a response to the following: Is any identified right ear and/or right ear drum disability at least as likely as not related to service, including the conceded right ear drum perforation that occurred in 1981 as described by the Veteran? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Also, the examiner should understand that the only relevant period of active service is from July 1978 to July 10, 1982. The nexus opinion should only address the 1981 right ear drum perforation and any other relevant in-service event, injury, or disease occurring between July 1978 and July 10, 1982, but should not consider any event, injury, or disease (e.g., noise exposure) in the second period of service from July 11, 1982 to April 1982 as the second period of service resulted in a dishonorable discharge. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kerry Hubers 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.