Citation Nr: 21040455 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 13-14 740 DATE: July 3, 2021 ORDER Service connection for a right hand disorder, to include healed third metacarpal fracture and degenerative joint disease is denied. FINDING OF FACT The Veteran did not undergo an in-service event, injury, or disease as to his right hand. CONCLUSION OF LAW The criteria to establish service connection for a right hand disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from September 1989 to July 1993. The Veteran had service in the Louisiana Army National Guard from August 1997 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the San Diego, California Regional Office (RO). In March 2020, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In June 2020, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Right Hand Disorder Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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 an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that his right hand disorder resulted from an in-service motor vehicle accident in 1990 or 1991. The claim will be denied because the Veteran's account of an in-service event, injury, or disease is not credible. An early August 1992 military personnel record (MPR) titled "Administrative Remarks" reflects the Veteran's ineligibility for promotion due to a pending administrative action concerning a driving under the influence (DUI) related incident. In a late August 1992 MPR titled "Administrative Remarks," the Veteran was counseled concerning his "alcohol related incident, specifically operating a motor vehicle while under the influence of alcohol ... with a blood alcohol level (BAC) of 0.07 percent." A September 1992 MPR titled "Offenses and Punishments" reflects the Veteran's violation of the Uniform Code of Military Justice (UCMJ) due to a DUI in early August 1992. Significantly, the noted MPRs reflect that the Veteran was not involved in a motor vehicle accident while DUI, rather, he was screened at the "main gate Marine Corps Air Station (MCAS) Futenma" as to his BAC while operating a motor vehicle in August 1992. The MPRs are silent as to a right hand injury resulting from the August 1992 DUI related incident. Service treatment records (STRs) from the Veteran's service in the Marine Corps are silent for complaints or contemporaneous reports concerning the Veteran's right hand. In the Veteran's April 1996 pre-entrance medical examination report for the Louisiana Army National Guard, the examiner noted no upper extremity abnormalities. In his April 1996 pre-entrance medical history report, the Veteran answered "no" to the question of whether he then had, or once had swollen or painful joints; broken bones; and bone, joint, or other deformity. STRs from the Veteran's service in the Louisiana Army National Guard are silent for complaints or contemporaneous report concerning the Veteran's right hand. In his July 1998 pre-separation annual medical certificate, the Veteran answered "no" to the question of whether he then-currently had any medical problems. The STRs and MPRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). A January 2003 VA right hand radiograph revealed degenerative joint disease and no obvious fracture. In a March 2003 VA treatment record, the Veteran reported experiencing right hand trauma resulting in a fracture approximately ten years prior and that he underwent surgery in North Carolina. The Veteran reported experiencing "activity-related" right hand pain. A right hand radiograph revealed a healed third metacarpal fracture. The Veteran was diagnosed with a healed third metacarpal fracture and activity-related pain/stiffness. In an April 2003 VA treatment record, it was noted that the Veteran's right hand third metacarpal was fractured from a motor vehicle accident in 1991. The Veteran reported an initial onset of right hand pain during barber school in 1996. A right hand radiograph revealed midshaft callous formation. The notation of the Veteran having been involved in a motor vehicle accident in 1991 is of low probative value because it is based on the Veteran's report of an unsubstantiated account of an in-service event, injury, or disease and does not serve to verify the occurrence described. Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A July 2003 VA treatment record reflects the Veteran's report of experiencing a right hand injury in 1991 and surgical debridement in 1993. He was diagnosed with right hand pain. An August 2003 VA treatment record reflects the Veteran's report of experiencing right hand pain since 1991. The VA physician noted that the Veteran may have undergone a surgical resection in 1993 because there was no evidence of an acute right hand injury as the pain was likely a residual from an old injury and resultant surgery. An October 2003 VA treatment record reflects the Veteran's report of experiencing right hand pain since 1991 and having undergone debridement in 1993. The VA physician noted a well-healed incision dorsum and tender tiny nodule at the proximal incision. A February 2008 VA treatment reflects the Veteran's report of experiencing a right hand injury from an in-service motor vehicle accident. A July 2009 VA treatment record reflects the Veteran's report of experiencing right hand pain. In a January 2013 letter, a VA psychiatrist noted that the Veteran underwent a DUI incident during service in 1992. In a January 2013 VA treatment record, the Veteran reported experiencing right hand pain since 1991 as a result of an in-service motor vehicle accident. A February 2017 VA treatment record noted a right hand debridement due to calcium buildup in 1993. An August 2019 VA treatment record reflects the Veteran's diagnosis of right hand pain. In his March 2020 Board hearing, the Veteran testified to having undergone an in-service motor vehicle accident in 1990 resulting in a fractured right hand. The Veteran indicated undergoing surgery at a naval hospital in Balboa. The Veteran's account of having undergone an in-service motor vehicle accident in 1990 or 1991 resulting in a right hand disorder is not credible. AZ v. Shinseki, 731 F. 3d 1303, 1315 (Fed. Cir. 2013) (finding that the absence of an entry in a record may be considered evidence that a fact did not occur if the fact would have been recorded if present); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in the STRs can constitute "contradictory" evidence weighing against the credibility of a claimant's testimony if the STRs are complete "in relevant part," and there is competent evidence that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred"). As noted, STRs are silent for complaints or contemporaneous reports pertaining to a motor vehicle accident or a right hand injury. The highly probative MPRs show that in August 1992, the Veteran was screened at the main gate MCAS Futenma and was found operating a motor vehicle while under the influence of alcohol. Significantly, there is no indication that the Veteran was involved in a motor vehicle accident in August 1992. In the Veteran's April 1996 pre-entrance medical examination and history report for the Louisiana Army National Guard, the examiner noted no upper extremity abnormalities and the Veteran did not report experiencing any right hand trouble, respectively. In his July 1998 pre-separation annual medical certificate, the Veteran answered "no" to the question of whether he then-currently had any medical problems. Contrary to the Veteran's assertion of having undergone treatment at the Balboa naval hospital, in a June 2004 response, Balboa naval hospital indicated having no inpatient or outpatient treatment records concerning the Veteran. The Veteran indicated experiencing right hand pain while in barber training school in 1996. In July 2020 and February 2021, VA notified the Veteran to submit a release form in order for VA to obtain the Veteran's records from his barber training school. The Veteran did not submit the release form. Woods v. Gober, 14 Vet. App. 214 (2000) (holding that while VA has a duty to assist the veteran in substantiating his claim, that duty is not a one-way street). A preponderance of the evidence is against a finding that the Veteran underwent an in-service event, injury, or disease as to his right hand disorder. The Veteran is not credible as to his account of having been involved in a motor vehicle accident during his service in the Marine Corps. STRs are silent for complaints or contemporaneous reports pertaining to a motor vehicle accident or a right hand injury. MPRs show that in August 1992, the Veteran was screened at the main gate MCAS Futenma while operating a motor vehicle and found to be under the influence of alcohol with no indication that the Veteran was involved in a motor vehicle accident. In the Veteran's April 1996 pre-entrance medical examination and history report for the Louisiana Army National Guard, the examiner noted no upper extremity abnormalities and the Veteran did not report experiencing any right hand trouble, respectively. In his July 1998 pre-separation annual medical certificate, the Veteran answered "no" to the question of whether he then-currently had any medical problems. Therefore, service connection is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, 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.