Citation Nr: 1736642	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-05 200	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for lumbar spinal stenosis and spondylolisthesis, post lumbar laminectomy and fusion.

2.  Entitlement to service connection for Depuytren's contracture of the right hand.

3.  Entitlement to service connection for a right hand disorder, to include carpal tunnel syndrome (CTS) and peripheral neuropathy. 

4.  Entitlement to an increased rating in excess of 20 percent for a left little finger disability with soft tissue flexion contractures of the left hand (left hand disability). 

5.  Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU).

6.  Entitlement to specially adaptive housing or a special home adaption grant.



REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Casadei, Counsel 


INTRODUCTION

The Veteran had active service from August 1955 to August 1959. 

This matter came before the Board of Veterans' Appeal (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  

The Veteran testified before the undersigned in a July 2014 Travel Board hearing, the transcript of which is included in the record.

The issues on appeal were previously remanded by the Board in January 2016.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. 
§ 20.900 (c) (2016).  38 U.S.C.A. § 7107 (a)(2) (West 2014).

The issue for entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder has been raised by the record in an August 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016). 

Additional private and VA treatment record have been added to the record since the December 2016 Supplemental statement of the case.  This evidence is not pertinent to the issues of service connection for right hand conditions and remand of the issues for initial RO consideration is not required. See 38 C.F.R. § 20.1304 (2016).

In a July 2016 rating decision, the RO denied entitlement to specially adaptive housing or a special home adaption grant.  In August 2017, the Veteran filed a notice of disagreement (NOD) with the July 2016 rating decision.  The record indicated that the RO processing this matter.  Thus, as the RO has acknowledged receipt of the NOD, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized.  As the RO is properly addressing the NOD, no action is warranted by the Board.

The issues of (1) service connection for lumbar spinal stenosis and spondylolisthesis, post lumbar laminectomy and fusion; (2) an increased rating in excess of 20 percent for a left little finger disability with soft tissue flexion contractures of the left hand; and (3) entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's right hand disorders, to include Depuytren's contracture, CTS, and peripheral neuropathy were not incurred in service and are not otherwise related to service.  


	(CONTINUED ON NEXT PAGE)




CONCLUSIONS OF LAW

1.  The criteria for service connection for Depuytren's contracture of the right hand have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. 
§§ 3.102, 3.303, 3.304 (2016).

2.  The criteria for service connection for a right hand disorder, to include CTS and peripheral neuropathy, have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  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).

    Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). 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).  Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2016) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b).  Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013).

Establishing 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 present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 .
    
Service Connection Analysis for Right Hand Disorders, to include Depuytren's Contracture, CTS, and Peripheral Neuropathy

The Veteran maintains that he injured his right hand in service.  During the July 2014 Travel Board hearing, the Veteran reported that he injured both hands, not just the left (which is already service connected), during service while being caught in a net for approximately 20 minutes.  See July 2014 Board Hearing Transcript at pg. 10-11.

The Board finds that the Veteran has been diagnosed with Depuytren's contracture of the right hand and CTS, for which he has undergone surgery, and peripheral neuropathy of the right hand/wrist. 

Further, the record indicates that the Veteran was awarded the Combat Action Ribbon.  As such, the Veteran's statements are accorded significant probative value, and when considered with the record evidence (Form DD-214), are credible supporting evidence of his claimed in-service injury.

Service treatment records include an August 1959 Report of Medical Examination, conducted at service separation.  At that time, the Veteran was noted to have incurred a left wrist injury in service, but nothing was noted regarding the right hand or wrist.  The remaining service records are absent for any complaints, diagnoses, or treatment for a right hand or wrist disorder.  

The evidence also includes April 2010 and March 2013 VA hand and finger examinations.  The examiners diagnosed the Veteran with bilateral peripheral neuropathy, CTS, and Dupuytren's contractures.  During the evaluations, the Veteran reported injuring his left hand in service after being caught in a net.  He did not indicate that he injured his right hand in service or that he experienced in-service right hand symptoms.  

Pursuant to the Board's January 2016 remand, a VA medical opinion was obtained in May 2016 regarding the likely etiology of the Veteran's right hand disorders.  The examiner indicated that the claims file had been reviewed.  The examiner then stated that there was no mention of right hand involvement with the reported net incident in service.  Instead, the first mention that the right hand or wrist was claimed as related to service was in 1965, approximately 6 years following service separation.  See April 1965 rating decision.  The examiner explained that, between service separation and 1965, there was no objective evidence that the Veteran had reported, or complained about any right hand or wrist complaints.  In 1968, he had surgical release of De Quervain's tendinitis.  This, according to the examiner, was 
like any other tendonitis and was not caused by an injury 11 years earlier.  In 1997, the Veteran underwent release of his right index and long trigger fingers and steroid injection right ring trigger finger.  There was no indication that he had symptoms related to this condition dating back to 1957, or even to the time of the 1968 surgery.  In 2001, he had surgical carpal tunnel syndrome release and right ring finger trigger release.  Again, there was no indication that he had symptoms related to these conditions dating back to 1957, or 1968, or 1997, although he clearly had triggering of the right ring finger at the time of his 1997 surgery.  The examiner also stated that the Veteran was first denied service connection for Dupuytren's contractures of the right hand in 1965, although it was unclear when this first developed.  The operative notes from 1968, 1997 and 2001 made no mention of flexion contractures of the right hand, despite the fact that the right hand was operated on in each of those years.  The first clinical mention of this disorder was in 2010.  

In sum, and based on the length of time that elapsed between the 1957 incident and the documentation of onset of each of the right hand conditions identified 
above, (to include neuropathy since there is no indication when this began but was 
not mentioned in any of the surgical notes), the May 2016 VA examiner opined that it was less likely as not that any of these conditions were the result of the Veteran injuring his right hand or wrist while "hung up" in a net getting off a ship in 1957.  Further, these disorders were also not related to any other injury or event that occurred during his military service from 1955-1959, nor were any of these conditions secondary to the 1957 injury to his left hand or wrist.  None of these conditions were noted to be related to a single injury over a decade prior to them becoming clinically significant.

The Board finds the May 2016 VA medical opinion to be probative as to whether the Veteran's right hand disorders are etiologically related to service.  The examiner reviewed the claims file, discussed the medical evidence of record, and provided an opinion support by a well-reasoned rationale.  See Bloom, 12 Vet. App. at 187; Hernandez-Toyens, 11 Vet. App. at 382; see also Claiborne, 19 Vet. App. at 186.

The Board has also considered the Veteran's statements asserting a nexus between his right hand disorders and service.  As a lay person, however, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorders of Depuytren's contracture, CTS, and peripheral neuropathy.  See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service).  His right hand disorders are medically complex disease processes because of their multiple possible etiologies, require specialized testing to diagnose, and manifest symptomatology that may overlap with other disorders.  Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis).  The etiology of the Veteran's right hand disorders are also complex medical etiological questions involving internal and unseen system processes unobservable by the Veteran.

For the reasons discussed above, the Board finds based on the competent, credible, and probative evidence of record, that the Veteran's right hand disorders were not incurred in service and were not otherwise etiologically related to service.  A preponderance of the evidence is against the claims and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for Depuytren's contracture of the right hand is denied.

Service connection for a right hand disorder, to include carpal tunnel syndrome and peripheral neuropathy is denied. 


REMAND

Lumbar Spine

The Veteran contends that he has a lumbar spine disorder that is related to service.  Specifically, the Veteran has indicated that he injured his back during service while diving to avoid sniper fire.

The evidence demonstrates that the Veteran has been diagnosed with lumbar spinal stenosis and spondylolisthesis, post lumbar laminectomy and fusion.  See e. g., March 2016 VA spine examination report. 

Further, the Veteran testified that he hurt his back during combat and has experienced back pain since service separation.  The record indicates that the Veteran was awarded the Combat Action Ribbon.  As such, the Veteran's statements are accorded significant probative value, and when considered with the record evidence (Form DD-214), is credible supporting evidence of his claimed in-service injury.

Pursuant to the Board's January 2016 remand, the Veteran was afforded a VA examination in March 2016.  During the evaluation, the Veteran reported low back pain since service.  He reported having had a spinal fusions in 2005, 2008, and 2009 due to multiple compression fractures and kyphosis.  The examiner diagnosed the Veteran with spinal fusion, spinal stenosis, and spondylolisthesis.  The examiner then opined that the Veteran's lumbar spine disorder was less likely than not related to service.  In support of this opinion, the examiner noted that, although the Veteran may have had a back injury in service, (i. e., a simple strain/sprain), his current back conditions were due to his many back surgeries, which happened many years post discharge.

The Board finds the March 2016 VA examiner's rationale to be inadequate.  Although it is reasonable that the Veteran's current lumbar spine disorders are a result of prior spine surgeries, the examiner did not discuss the Veteran's lumbar spine disorders (and their causes) prior to the need for surgical treatment.  In other words, the evidence demonstrates that the Veteran clearly must have had lumbar spine issues prior to his surgeries, thus requiring the need for surgical treatment.  As such, the Board finds that a new medical opinion is required.   

Increased Rating for Left Finger/Hand Disability

Pursuant to the Board's January 2016 remand, the AOJ was asked to readjudicate the claim for an increased rating in excess of 20 percent for a left little finger disability with soft tissue flexion contractures of the left hand and issue a supplemental statement of the case (SSOC) which specifically discusses all evidence received since the February 2013 statement of the case, "specifically the March 2013 VA hand and finger examination."  

A SSOC was issued in December 2016; however, the AOJ did not discuss the March 2013 VA examination report.  It was also not listed in the SSOC as part of the evidence reviewed by the AOJ.  As such, the Board finds that the AOJ did not comply with the Board's remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

Moreover, although the AOJ afforded the Veteran a new VA hand examination in October 2016 (presumably to obtain evidence regarding the current severity of the Veteran's left hand disorder), the Board finds the examination to be inadequate for rating purposes.  The Board notes that the Veteran's currently assigned 20 percent rating for his left hand disability is based on "moderate" incomplete paralysis of the ulnar nerve affecting his finger and wrist movements of the minor extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8516.  See August 2010 rating decision.  Notably, however, the most recent October 2016 VA examination does not address the criteria under Diagnostic Code 8516.  As such, a new VA examination is warranted.  

TDIU

As any decision with respect to the claims noted above may affect the claim for a TDIU, the claim for a TDIU is inextricably intertwined and therefore adjudication is deferred until adjudication of these claims.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 
38 C.F.R. § 20.900 (c).  Expedited handling is requested.)

1.  Obtain a medical opinion from an appropriate examiner for the Veteran's lumbar spine disorders.  The Veteran is not required to undergo a physical examination unless deemed necessary.  The claims file must be provided to the examiner.  The examiner is asked to address the following:

***In providing the opinion, the examiner is asked to assume that the Veteran sustained a back injury in service while diving to avoid sniper fire. 

(a)  The examiner should state whether it is at least as likely as not (i.e., probability of 50 % or greater) that the Veteran's lumbar spine disorders (prior to and subsequent to his spine surgeries in 2005, 2008, and 2009), had its onset during service or is otherwise related to any in-service injury. 

(b)  The examiner must provide a complete rationale for his or her opinion with reference to the evidence of record.  If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then he/she should indicate this and explain the reason why an opinion would be speculative.

2.  Schedule the Veteran for an appropriate VA examination to determine the nature, extent and severity of his left hand disability.  Copies of all pertinent records from the Veteran's claims file should be made available to the examiner.  All indicated tests should be performed. 

The examiner should express an opinion as to the severity of the Veteran's left hand disability in terms of resulting in complete paralysis, or mild, moderate, or severe incomplete paralysis.  See Diagnostic Code 8516.

3.  After completion of the foregoing and all other necessary development, the AOJ should re-adjudicate the issues on appeal.  

Specifically regarding the claim for an increased rating in excess of 20 percent for a left little finger disability with soft tissue flexion contractures of the left hand and issue a supplemental statement of the case which specifically discusses all evidence received since the February 2013 statement of the case, specifically the March 2013 VA hand and finger examination. 

If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 

action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
K. J. Alibrando
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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