Citation Nr: 21024931 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-15 990 DATE: April 26, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a fracture of the right little finger, to include post-traumatic arthritis, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s low back disability began during active service or is otherwise related to an in-service event or injury. 2. The Veteran’s fracture of the right little finger, to include post-traumatic arthritis, was not manifest in service, within one year of separation from service, and is not otherwise caused by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a fracture of the right little finger, to include post-traumatic arthritis, have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1973 to December 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office. In November 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the evidentiary claims file. In May 2020, the Board remanded this matter to the agency of original jurisdiction for additional development. Now the matters are returned to the Board. 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. §§ 1131; 38 C.F.R. § 3.303(a). To establish an entitlement to service connection for a disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Determinations regarding service connection are based on a review of all of the evidence in the record, including all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a) (2019). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2007) Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App., at 54. Low Back Disability The Veteran contends that his current low back disability is due to in-service injury. He testified that between May and June of 1973, he was pinned by an ambulance while on garbage detail, causing injury to his back. He stated that since the accident, he suffered from intermittent back problems, where his back gave out. The Veteran further testified he has self-treated with ice, heat, and rest. See November 2019 Board Hearing Transcript, at 15-16. The record shows the Veteran's low back pain was diagnosed as lumbosacral strain in February 2021. See February 2021 Back Compensation and Pension Examination. Thus, the Board finds that the first Shedden element for service connection is met. As to the in-service injury of the Veteran's low back disability, the Board notes that his service treatment record (STR) does not reflect any injuries or complaints related to low back. However, STRs document you were pinned between two vehicles and documents treatment for the left arm and elbow as a result. See STR, dated June 8, 1975. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that the second Shedden element for service connection is also met. In February 2021, a VA examiner opined that the Veteran’s diagnosed back conditions were less likely than not incurred in or caused by military service. The examiner noted that there is no mention of a back injury or back pain in the Veteran’s STR. Further, the October 1975 separation examination did not reflect any back issues and in December 1975, the Veteran affirmed there were not any changes between his separation health examination and discharge. The examiner also noted that, post-military, the Veteran denied back problems as recently as 2014. Although, the in-service injury was noted as believable, the examiner determined that the Veteran’s back pain was less likely than not related to the in-service injury, whether it was documented or not. The Board finds the February 2021 VA medical opinion to be competent and credible evidence and assigns high probative weight, as the examiner rendered the opinion after reviewing the Veteran's records and contentions in conjunction with an in-person examination. The Board acknowledges the Veteran's contention that his low back disability is related to his in-service injury because it gave out on active duty when walking around a desk, suddenly bringing him to his knees, and it has continued to give out intermittently since that time. See November 2019 Board Hearing Transcript, at 15. Also, the Veteran testified that he did not have any other injuries to his back after separation. See id., at 20. However, he is not competent to provide a nexus opinion in this case. The issue is medically complex, involving the interaction of organ systems in the body, and falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Veteran’s lay opinions are outweighed by the VA examiner's findings. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran's low back disability began during active service, or is otherwise related to an in-service event or injury. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that the Veteran's entitlement to service connection for a low back disability is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. Right Little Finger The Veteran contends that his current right little finger disability is due to an in-service injury. He testified that it appeared broken during basic training, but he did not seek treatment out of fear that he would be recycled and undergo another eight weeks of training. He also stated that it was bent a little. See November 2019 Board Hearing Transcript, at 20. The record shows the Veteran's right little finger disability was diagnosed as post-traumatic arthritis in February 2021. See February 2021 Hand and Fingers Compensation and Pension Examination. Thus, the Board finds that the first Shedden element for service connection is met. The Veteran’s STRs do not indicate any injuries or complaints related to the right hand or fingers. However, the Veteran is competent to describe symptoms observable to his senses, and there is no reason to doubt the credibility of his testimony regarding the in-service injury to his right little finger. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds the second Shedden element for service connection is also met. However, the February 2021 VA examiner opined that the Veteran's bilateral hand disability was less likely than not caused by in-service injury, event, or illness. The examiner noted that the Veteran’s reported history of jamming his finger without reporting the injury was believable but noted the failure to report rendered a finding that his injury was related to service unprovable. As rationale, the examiner cited that there was no evidence describing finger injuries in the STR. Further, upon examination, the VA examiner found deformity of the right little finger and loss of grip strength. The disability was noted to bother him before he retired, as he worked on computers. Moreover, the examiner cites in the opinion that there was no evidence of continual treatment for a hand or finger condition after separation from service. The Board finds the February 2021 examiner competent and credible and assigns the opinion high probative weight, as it was provided after the examiner's review of the Veteran's records in conjunction with an in-person examination of the Veteran's hands. Based on the evidence of record, the Board finds that service connection for the Veteran’s right little finger disability, to include post-traumatic arthritis, is not warranted on a direct basis. The STRs do not document complaints or treatment for a right finger disability, and none were noted at the Separation Examination. See STR, dated October 9, 1975. Moreover, as previously noted, the VA examiner opined it was less likely than not that the right little finger disability was incurred in or caused by an in-service injury, event, or illness. Therefore, the Board finds the third Shedden element is not met. Further, although post-traumatic arthritis of the right little finger is a chronic disease under 38 C.F.R. § 3.309(a), an arthritis diagnosis is not supported by any of the Veteran's service treatment records or any medical evidence within the year following the Veteran's discharge, and continuity of symptomology is not established. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In fact, the medical evidence of record shows arthritis in the right little finger was not diagnosed until the radiographic imaging performed in February 2021, which was decades after separation from service. In this case, the absence of medical evidence weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection cannot be applied. While the Veteran believes his current right little finger disability, to include post-traumatic arthritis, was incurred or caused by service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, involving the interaction of organ systems in the body, and falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Veteran’s lay opinions are outweighed by the VA examiner's findings. In summary, the Board concludes that the most credible and probative evidence weighs against finding that the Veteran’s current right little finger disability is related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that entitlement to service connection for a right little finger disability, to include post-traumatic arthritis, is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Gipson, 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.