Citation Nr: 21025342 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-26 533 DATE: April 27, 2021 ORDER Entitlement to service connection for a right hand disorder, claimed as lump, is denied. Entitlement to service connection for a left hand disorder, claimed as lump, is denied. REMANDED Entitlement to service connection for a throat disorder is remanded. FINDING OF FACT 1. A chronic right hand disorder was not manifested in service; degenerative arthritis was not manifested within one year following the Veteran’s separation from service; and no current right hand disorder is shown to be etiologically related to such service/injury therein. 2. A chronic left hand disorder was not manifested in service; degenerative arthritis was not manifested within one year following the Veteran’s separation from service; and no current left hand disorder is shown to be etiologically related to such service/injury therein. CONCLUSION OF LAW 1. The criteria for service connection for a right hand disorder, including right wrist ganglion cyst and degenerative arthritis, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a left hand disorder, including degenerative arthritis, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1976 to July 1980. He served honorably in the U.S. Navy, including foreign and sea service. The Board thanks the Veteran for his service to our country. The Veteran testified at a Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing is of record. The Board remanded these matters in February 2020 and April 2020 for additional development, including obtaining updated clinical records, any outstanding military personnel records and medical nexus opinions. After review of the development accomplished by the AOJ, the Board concludes there has been substantial compliance with the Board remand instructions and no further action is necessary as to the bilateral hand claims. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (“It is substantial compliance, not absolute compliance, that is required” under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1131. 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). Service connection generally requires (1) medical 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 current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). In addition, certain chronic diseases (including arthritis) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for the aforementioned diseases). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of 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 may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for a right hand disorder is denied. 2. Service connection for a left hand disorder is denied. The Veteran claims his bilateral hand disorder is the result of injury sustained in service, when he banged his hands against the metal bed rails while serving aboard ship and developed lumps on his hands. See, e.g., November 2019 Board hearing transcript and June 2016 VA Form 9, Appeal to Board of Veterans Appeals. With regard to the first element of service connection, the November 2020 VA hand and finger conditions examination report notes diagnoses of degenerative arthritis, both hands. Thus, it is not in dispute that the Veteran has a current diagnosis of a right and left hand disorder. Next, the Veteran’s service treatment records (STRs) include a March 1979 treatment report which notes the Veteran sought treatment for a lump on his right radius. He had a history of this lump which “goes away” and “reappeared” after the Veteran bumped his wrist on a pipe. The Board finds this recordation is sufficient to satisfy the second element of service connection for a right hand disorder, in-service incurrence of injury. Regarding the left hand, the STRs are silent as to complaints of or treatment for left hand symptoms, including as a result of banging the hand against the Veteran’s metal bed rails. See, e.g., November 2019 Board hearing transcript. Accordingly, the second (inservice event) element required to establish service connection for a left hand disorder is not met. The STRs show the Veteran’s upper extremities and musculoskeletal structure were clinically normal on June 1980 service separation examination and the initial post-service treatment for hand complaints was not until many years after service. Specifically, September 2004 private treatment records note the Veteran sought treatment for complaints of hand and palm pain, numbness and tingling, right worse than left. He reported his symptoms seemed to correspond with the time that he started playing golf, about two months earlier. He also reported he had “never really experienced all this before.” The assessment was bilateral carpal tunnel syndrome. Accordingly, service connection for a right and/or left hand disorder on the basis that such became manifest in service and persisted is not warranted. As degenerative arthritis of the bilateral hands is not initially shown until many years after service (and it is not claimed that arthritis of the hands was diagnosed within the first post-service year), service connection on a chronic disease presumptive basis (under 38 U.S.C. § 1112; 38 C.F.R. § 3.309(a)) is not warranted. While service connection may be shown by continuity of symptomatology post service, the earliest evidence of complaints referrable to either hand is not until September 2004, decades after service. Thus, the preponderance of the evidence is against a finding of continuity as to a disorder of either hand. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). To the extent that the Veteran attempts to support his claim of service connection for a right and left hand disorder by his more recent accounts of continuity of symptoms since service, the Board finds such accounts to be inconsistent with contemporaneous clinical data, including his service separation examination, as well as his statements made to providers in 2004, and not credible. In this regard, as noted above, the Veteran’s June 1980 service separation examination was silent as to findings of impairment of either hand and, during the September 2004 private treatment for hand complaints, he reported his symptoms had started two months previously after he had started golfing and he had “never really experienced all this before.” Thus, based on his September 2004 report of a two month history of bilateral hand symptoms, his initial post-service hand symptoms started approximately 24 years after his July 1980 separation from service. In weighing the conflicting statements provided by the Veteran, the point in time in which the statements were made is important because a description of an event which is closer to the time that event allegedly occurred is naturally less likely to be affected by errors in memory. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). Thus, the contemporaneous nature of the statements of medical history in connection with post-service treatment is significant. The Veteran’s recent statements were made for the purposes of obtaining VA benefits over 30 years after service (he initially claimed service connection for a disorder of each hand in May 2011). While the Board must consider all competent lay assertions, in determining the credibility of such assertions, the Board may properly consider the personal interest a claimant has in his or her own case as a factor. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). What remains then is the question of whether, in the absence of a showing of onset in service and continuity since, the Veteran’s right and/or left hand disorder may otherwise be related to his service. Whether there is a nexus between this disorder and service or complaints therein, absent evidence of continuity, is a medical question that requires medical expertise, which the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran’s opinion that his current bilateral hand disorder is related to injuries sustained from hitting his hands on his metal bed while serving onboard ship are merely lay speculations and are not competent evidence. They are without probative value in this matter. A December 2011 VA examination report, under a heading “Specific history for ganglion cyst right hand/lump right hand,” notes that the Veteran reported being diagnosed with a right hand ganglion cyst in March 1979. Later, under a heading “Specific history for lump on right hand,” it is noted that he reported that the origin of his left hand condition was unknown. It is then noted that he reported being diagnosed with a left hand ganglion cyst in March 1979. This information is noted again under a heading “Specific history for ganglion cyst right wrist.” The examiner rendered diagnoses of left wrist ganglion cyst and right hand (thumb) arthritis and noted that both had been originally diagnosed in 1979. However, the examiner later stated that the Veteran was treated for a right wrist ganglion cyst in service, not for a left wrist ganglion cyst. The examiner noted the Veteran’s right hand arthritis and opined that it is not service connected without offering a rationale. This examination report is insufficient for rating purposes because, as noted in the February 2020 Board remand, it contains inconsistent (and conflicting) findings and opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding, in the context of weighing one medical opinion with another, that “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion ... that contributes probative value to a medical opinion.”) The only medical opinion which is sufficient for rating purposes as to these claims is the opinion provided in the November 2020 VA examination report and it is against the Veteran’s claims. Specifically, after interview and examination of the Veteran and review of the record, the examiner opined that it is less likely than not that the Veteran’s right or left hand disorder is related to the claimed in-service injury. The examiner explained that the “Veteran has no ganglianic cyst of the right or left hand. There is no evidence of chronicity of care and symptoms are subjective only. A nexus has not been established.” Significant probative value is afforded to the November 2020 opinion, which assesses the character of the Veteran’s in-service injury against the onset and nature of his current right and left hand disorders. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). There is no indication that the examiner was not fully aware of the Veteran’s past medical history or misstated any relevant fact in providing the above nexus opinion. Moreover, the examiner possesses the requisite expertise to render a medical opinion regarding the etiology of the diagnosed disorders and had sufficient facts and data on which to base his conclusions. In summary, the medical evidence shows that the Veteran has right and left hand disorders, diagnosed as arthritis, that became manifest many years after his separation from service. There is no competent evidence that shows or suggests that these disorders may be etiologically related to his service. In light of the foregoing, the Board concludes that the preponderance of the evidence is against these claims; therefore, the benefit of the doubt rule does not apply and the appeal as to these matters must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 3. Service connection for a throat disorder is remanded. The February 2020 and April 2020 Board remands requested the Veteran undergo examination to determine the nature and etiology of his throat disorder. In providing the opinions requested, the examiner was asked to “consider in service notations of treatment for the Veteran’s throat as well as his lay statement of in-service asbestos exposure” and, as to each diagnosed disorder, “provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) related to service, to include reported asbestos exposure.” Although the Veteran underwent VA examination in November 2020, the examination report shows a diagnosis of allergic rhinitis and the opinion provided shows review of the Veteran’s medical history; the examination report and opinion do not reflect consideration of the Veteran’s lay statements of in-service asbestos exposure. Accordingly, remand for a supplemental opinion, in compliance with the Board remand instructions, is necessary. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for his claimed throat disorder. Please ask the Veteran to provide the releases necessary for VA to secure any adequately identified private treatment records. 2. After the development in paragraph 1 has been completed to the extent possible, please arrange for a medical opinion (with examination only if feasible and deemed necessary by the opinion provider) to determine the nature and etiology of his throat disorder. Based on review of the record (and, if necessary and deemed feasible, interview and examination of the Veteran), the examiner should provide an opinion that responds to the following: As to each throat disorder identified during the appeal period since receipt of the Veteran’s May 2011 claim for service connection, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) related to service, to include reported asbestos exposure. The examiner is requested to consider in service notations of treatment for the Veteran’s throat, his lay statement of in-service asbestos exposure and the December 2011 and November 2020 VA examination reports and opinions. A complete rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kshama Hughes 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.