Citation Nr: 22019932 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 13-21 826A DATE: April 3, 2022 ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a right-hand disability, including as due to a service-connected left forearm disability, is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran reported injuring his neck, left forearm, right long finger, and right hand during active service; although he is competent to report his in-service injuries, he is not competent to relate any of these injuries to any current disabilities. 2. The record evidence shows that the Veteran injured his left forearm, three fingers of the left hand, right long finger, and neck during active service. 3. The Veteran testified before the Board in July 2016 that he injured his right hand during active service and this injury was not documented in his records. 4. The record evidence shows that the Veteran's current neck disability is not related to active service. 5. The record evidence shows that the Veteran's current right hand disability is not related to active service and was not caused or aggravated by his service-connected left forearm disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2020). 2. The criteria for service connection for a right-hand disability, including as due to a service-connected left forearm disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Air Force from August 1955 to December 1975. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A Central Office Board hearing was held in July 2016 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Most recently, in February 2021, the Board denied, in pertinent part, the currently appealed claims. The Veteran, through an attorney, and VA's Office of General Counsel appealed the Board's denial of service connection for neck and right hand disabilities to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Partial Remand (Joint Motion). The Court granted the Joint Motion in December 2021, vacating and remanding only that part of the Board's February 2021 decision which denied the currently appealed claims. The Board is not persuaded that the evidence supports granting the Veteran's claims of service connection for a neck disability and for a right hand disability, including as due to a service-connected left forearm disability. The Veteran essentially contends that he incurred neck and right hand disabilities during active service, specifically as a result of in-service injuries, and experienced continuous post-service disability. He alternatively contends that his service-connected left forearm disability caused or aggravated his current right hand disability. The record evidence does not support his assertions regarding an etiological link between a neck disability or a right hand disability and active service. Contrary to the lay assertions and the Veteran's Board hearing testimony, it shows instead that, although he currently experiences neck and right hand disabilities, neither of these disabilities is related to active service. It also shows that his service-connected left forearm disability did not cause or aggravated his current right hand disability. The available service treatment records show that, at his enlistment physical examination in August 1955, clinical evaluation was within normal limits. He denied all relevant pre-service medical history. The Veteran incurred injuries to the left forearm and several fingers of the left hand when he tripped, fell, and put his left arm through a window in January 1956. He had surgery to repair these injuries. The surgical diagnosis was laceration of muscle bellies of third, fourth, and fifth digits of flexor digitorum sublimis of the left arm. On outpatient treatment in February 1956, it was noted that his left forearm surgical wounds had healed completely. Physical examination showed a full range of flexion and extension in all fingers except he had to bend the second, third, and fourth digits of the left hand to bend the orbital phalanx of the fourth digit, and intact sensation. In November 1965, the Veteran complained of a right long finger abrasion at the proximal interphalangeal (PIP) joint. Physical examination showed a superficial dorsal abrasion and normal range of motion without displacement of the finger. The Veteran's finger was bandaged. In August 1968, the Veteran complained of a stiff neck, neck pain, and difficulty turning his head from side to side. Physical examination showed torticollis. At his separation physical examination in July 1975, prior to his separation from service in December 1975, clinical evaluation was within normal limits and he denied all relevant in-service medical history. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). The post-service evidence also does not support granting the Veteran's service connection claims for a neck disability and for a right hand disability, including as due to a service-connected left forearm disability. Although the record evidence shows that the Veteran complained of and sought treatment for each of these disabilities in the decades since his service separation, it also shows that neither of them is related to service. For example, a private magnetic resonance imaging (MRI) scan of the Veteran's cervical spine taken in February 1997 showed degenerative disc disease with spondylosis and foraminal stenosis at C5-7. In an April 2000 letter, K. A., M.D., stated that the Veteran complained of neck pain, occasional stiffness or discomfort, and occasional left arm pain. "This is mainly in the left side and comes and goes. His symptoms are really non-specific." Physical examination showed a normal range of motion in the neck, muscle strength within normal limits, symmetric reflexes, and essentially normal pinprick sensation. The impressions included degenerative cervical spine with osteophyte formation, degenerative disc disease with disc space narrowing, and chronic neck strain. Dr. K. A. stated, "At this point, I do not really see any significant cervical stenosis requiring any surgical intervention." On private outpatient treatment in May 2005, the Veteran's complaints included cramping in both hands, left hand greater than right hand, and "a longstanding history of neck pain with radiation into the right upper extremity. He states [that] it has been present for the last several years at least." He reported being told he had cervical stenosis. He also reported paresthesias in both hands "and often has to shake his hands to get rid of the numbness." Physical examination showed he was in mild distress due to neck and back pain, weakness on flexion and extension of the right arm at the elbow, and deep tendon reflexes +1 at the right bicep and +2 at the right triceps and brachioradialis. An electromyograph (EMG) was conducted. The impressions included bilateral cervical radiculopathy "more pronounced on the right side affecting the C6-C7 level." A private MRI scan of the Veteran's cervical spine taken in May 2005 showed small transverse herniated nucleus pulposus (HNP) and associated osteophyte formation at C3-C7 with moderate compression of the neural foramina bilaterally and no significant focal spinal stenosis in the cervical region. In a July 2006 letter, Dr. K. A. stated that the Veteran reported "vague symptoms that mainly consist of weakness in the upper extremities." A history of cervical spondylosis was noted. He also reported a history of bilateral hand pain, right hand greater than left hand. Physical examination showed no limitation of motion in the neck on range of motion testing which was "actually normal for his age" and only mild limitation on extension and normal sensation. The impressions included degenerative arthritis of the cervical spine with a small disc herniation and osteophyte formation "which has been chronic in nature at least since 1997. This has not progressed much." In August 2006, the Veteran reported to the emergency room of a private hospital following a recent motor vehicle accident where another car "t-boned" his car on the passenger side. He stated that he did not seek medical treatment immediately after the accident because "he really did not think that he was hurt." At the time of the motor vehicle accident, he did not lose consciousness or hit his head. A history of cervical spine stenosis was noted. He had an unremarkable course in the emergency room and was discharged home. On private outpatient treatment in July 2007, the Veteran complained of continued neck discomfort with pain radiating down the left upper extremity. Physical examination showed he was in mild distress due to neck pain. An EMG was conducted. The impression was electrophysiological evidence of chronic bilateral cervical radiculopathy involving the bilateral C6-7 nerve roots, no definite evidence of cervical myelopathy, and no progression in weakness or any signs of myelopathy. The Veteran testified at his July 2016 Board hearing that he injured his right hand while banding a crypto machine during active service and this injury is not documented in his records. See Board hearing transcript dated July 7, 2016, at pp. 26 27. Because the Board previously found VA examinations and opinions dated in November 2016 and in March 2019 to be inadequate for VA adjudication purposes, this evidence was not reviewed on relied upon in adjudicating these claims. On VA hand and finger conditions Disability Benefits Questionnaire (DBQ) in December 2020, the Veteran's complaints included right first digit pain. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran experienced flare-ups of right hand pain once or twice a week which were moderate to severity in intensity and lasted 1 2 days. He also experienced functional loss or impairment of the right hand which he described as being unable to open jars or bottles and having "no strength [and] much discomfort." Physical examination of the right hand showed pain, weakened movements, and 4/5 muscle strength. X-rays showed degenerative or traumatic arthritis. There was no evidence of pain on passive range of motion testing or non-weight bearing in the right hand. There was pain in the right ring finger and right little finger on flexion and extension. The VA examiner opined that it is less likely than not that the Veteran's right hand disability is related to active service. This examiner also opined that it is less likely than not that the Veteran's service-connected left forearm disability caused his right hand disability. This examiner stated that she could not determine a baseline level of severity for the Veteran's right hand disability. She next opined that, regardless of an established baseline, it is less likely than not that the Veteran's service-connected left forearm disability aggravated the right hand disability beyond its natural progression. The rationale for these opinions was based on a review of the claims file. The rationale also was: The Veteran sustained a laceration to the muscle of the left forearm which was surgically closed. The x-ray performed on 12/8/2020 documents absence or deformity of the trapezium and erosive appearing changes of the base of the first metacarpal. The arthritic changes of the right first metacarpal [are] a separate unrelated condition from a laceration of the muscle of the left forearm. Arthritis can result from overuse, injury, aging or infection. The Veteran is right hand dominant and degenerative changes would be more likely to occur on the right hand versus the left. The diagnoses included right hand arthritis. On VA neck (cervical spine) conditions DBQ in December 2020, the Veteran's complaints included chronic neck pain with radicular symptoms. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. He reported injuring his neck during active service. A post-service diagnosis of degenerative disc disease of the cervical spine and spinal stenosis, status-post cervical spine laminectomy and fusion, was noted. He experienced "random" flare-ups of neck pain which were moderate to severe in intensity, lasted from 1 hour to days, and were alleviated by taking medication and using heat. He experienced functional loss or impairment which he described as "difficulty moving his neck while driving and [using] mirrors in the car." Physical examination showed pain with weight bearing, moderate tenderness to palpation in the left trapezius, 5/5 muscle strength, normal deep tendon reflexes and sensation, and moderate intermittent pain of the left upper extremity. He regularly used a brace and occasionally used a cane. X-rays showed arthritis. He was unable to lift or carry more than a gallon of milk. Passive range of motion testing could not be performed because it was not medically appropriate. There was objective evidence of pain on non-weight bearing testing of the neck. The VA examiner opined that it is less likely than not that the Veteran's neck (or cervical spine) disability is related to active service. The rationale for this opinion was based on a review of the claims file. The rationale also was: His medical records documented one neck complaint in 8/30/1969 where he was diagnosed with torticollis and treated with medication management. In 2000 thirty years post initial documentation of a neck complaint in military service he was diagnosed with degenerative disc disease, spinal stenosis and radiculopathy. Torticollis is a superficial injury resulting in spasming of the muscles of the neck. This does not involve [the] spine. These are separate unrelated conditions. Muscle spasms due not result in the development of degenerative changes, stenosis and radiculopathy 30 plus year later. The diagnoses included cervical strain, degenerative arthritis of the cervical spine, and cervical spinal stenosis. Despite the Veteran's lay assertions and Board hearing testimony to the contrary, the record evidence shows that his neck disability and right hand disability are not related to active service. It also shows that his service-connected left forearm disability did not cause or aggravate his current neck disability. The Board again acknowledges that the Veteran injured his left forearm, three fingers of the left hand, right long finger, and neck during active service. He also testified before the Board in July 2016 that he injured his right hand during service and this injury was not documented in his records. He currently experiences current neck and right hand disability which he attributes to active service. Although he is competent as a lay person to describe what happened to him during active service, his lay statements and hearing testimony alone are not sufficient to establish an etiological link between his in-service injuries and current disability. Both parties to the Joint Motion criticized the Board for relying on the absence of contemporaneous evidence when it analyzed the probative value of the Veteran's lay assertions and hearing testimony in the March 2020 decision. The Board recognizes that it is well-settled that the absence of evidence is not necessarily fatal to a service connection claim. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. The Board also recognizes that it may have been inartful to use the absence of contemporaneous medical evidence in order to discount the lay assertions and hearing testimony in the March 2020 decision. The Board next observes that, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. The Board finds that the Veteran is competent to state that he injured his left forearm, three fingers of the left hand, right long finger, and neck during active service. These assertions are supported by the contemporaneous service treatment records documenting these injuries in January 1956 (left forearm and three fingers of left hand), November 1965 (right long finger), and in August 1968 (neck). The Board also finds that the Veteran is competent to testify that he injured his right hand during active service and this injury is not documented in his records. He has not shown that he has the expertise required to diagnose either a neck disability or a right hand disability, however. More importantly, neither the Veteran nor his wife (who also provided lay statements and hearing testimony on these matters) is competent to offer opinion(s) regarding any causal relationship between a neck disability, a right hand disability, and active service. Nor are the Veteran and his wife competent to offer opinion(s) regarding any causal relationship between a right hand disability and his service-connected left forearm disability. While the lay assertions and Board hearing testimony have been considered carefully, these contentions are outweighed by the medical evidence of record showing no nexus between a neck disability and active service or between a right hand disability and active service, including as due to a service-connected left forearm disability. In other words, the Board finds that the lay assertions and hearing testimony are not probative on the issues of whether a neck disability is related to active service or whether a right hand disability is related to active service, including as due to a service-connected left forearm disability. The remaining medical evidence of record shows that neither the Veteran's current neck disability nor his current right hand disability is related to active service. It also shows that the service-connected left forearm disability did not cause or aggravate the current right hand disability. In multiple opinions dated in December 2020, the VA examiner opined that it is less likely than not that the Veteran's neck disability is related to active service and it is less likely than not that the right hand disability is related to active service, including as due to a service-connected left forearm disability. All of these opinions were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a neck disability and for a right hand disability, including as due to a service-connected left forearm disability. In summary, the Board finds that service connection for a neck disability and for a right hand disability, including as due to a service-connected left forearm disability, is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.