Citation Nr: 1754136	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-06 928A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability.  

2. Entitlement to service connection for a left knee disability.  

3. Entitlement to service connection for a left hand disability, to include the residuals of a laceration and arthritis.

4. Entitlement to service connection for a right hand disability.  

5. Entitlement to service connection for headaches.

6. Entitlement to service connection for sinusitis.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans
WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

S. Spitzer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1999 to December 2003.  His awards include the Army Lapel Button, the National Defense Service Medal, and the Army Service Ribbon.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In March 2017 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.  During his Board hearing the Veteran waived Agency of Original Jurisdiction (AOJ) review of all evidence received since the last adjudication of the case by the RO.  The Board has accepted this additional evidence for inclusion into the record on appeal.  See 38 C.F.R. § 20.800 (2017).

The Board notes that in March 2017 the Veteran filed a notice of disagreement (NOD) at the RO concerning entitlement to service connection for bilateral flat foot, as shown in the electronic claims file (VBMS).  Such appeal is contained in the Veterans Appeals Control and Locator System (VACOLS) as an active appeal at the RO.  While the Board is cognizant of the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeal.  Action by the Board at this time may serve to actually delay the RO's action on that appeal.  As such, no action will be taken by the Board at this time, and the issue presently before the RO pertaining to entitlement to service connection for bilateral flat foot will be the subject of a later Board decision, if ultimately necessary.  

The issues of entitlement to service connection for a left hand disability and sinusitis are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. An October 2004 rating decision that denied the claim of entitlement to service connection for a left knee disability was not appealed and no new and material evidence was submitted during the appeal period; the decision is final.

2. Some of the evidence received since that prior denial relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a left knee disability.  

3. The Veteran's left knee disability was incurred in service.

4. The Veteran's headaches were incurred in service.

5. Arthritis of the right hand did not manifest during a period of active duty service or within one year of separation from a period of active duty service, and a current right hand disability is not related to service.  






CONCLUSIONS OF LAW

1. New and material evidence has been submitted, and the claim of entitlement to service connection for a left knee disability is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

2. The criteria for service connection for a left knee disability are met.  38 U.S.C.    §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

3. The criteria for service connection for headaches are met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

4. The criteria for service connection for a right hand disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Left Knee Disability 

The Veteran's claim seeking entitlement to service connection for a left knee disability was previously denied in an October 2004 rating decision.  New and material evidence was not received within a year of notice of the decision.  See 38 C.F.R. § 3.156(b).  The Veteran did not initiate an appeal of this decision and it became final.  38 U.S.C § 7105; 38 C.F.R. §§ 20.302, 20.1103.   

The evidence considered at the time of the October 2004 rating decision consisted of the Veteran's service treatment records, post-service treatment records, and a VA examination report.  The claim was denied because the Veteran was found not to have a current foot disability.  

The evidence received since the October 2004 rating decision includes a VA Knee and Lower Leg Disability Benefits Questionnaire submitted by a private physician in August 2016 and a January 2017 VA examination report; both documents note the Veteran's diagnosis of bilateral patellofemoral pain syndrome.  VA treatment records since that time also note diagnoses of bilateral knee arthralgia and bilateral anterior knee pain.  See VA treatment records dated in May 2013, August 2014, and May 2016.  Since such evidence relates to an unestablished fact necessary to substantiate the claim, namely, a current left knee disability, it is new and material, and the claim of entitlement to service connection for a left knee disability is reopened.  

The Board will now proceed to discuss the merits of the claim of entitlement to service connection for a left knee disability.  This does not prejudice the Veteran as service connection for a left knee disability is being granted in full.  

The Veteran asserts that he received treatment for left knee pain during service and that he has continued to experience left knee pain since that time.  See March 2017 hearing testimony.  In support of his claim of entitlement to service connection, he points to a January 2017 positive opinion rendered by a VA clinician.  

At the outset, a current left knee disability is established; left knee patellofemoral pain syndrome was diagnosed by the August 2016 and January 2017 clinicians, and their diagnoses are supported by the VA treatment records noting knee arthralgia and bilateral anterior knee pain.  

The Veteran's service treatment records note assessments of retropatellar pain syndrome in both knees.  See July 2000, September 2000 service treatment records.  Additionally, an in-service nuclear medicine bone scan conducted in October 2002 revealed moderate focal stress change uptake present at the medial left knee.  The findings were noted to be consisted with severe to moderate stress change.  

Following service, the Veteran reported left knee pain and giving way and was prescribed bilateral knee braces.  See March 2013, February 2015, and September 2015 VA treatment records.

In January 2017, a VA clinician reviewed the claims file and opined that it was more likely than not that the left knee patellofemoral pain syndrome was due to or incurred in military service.  The Board finds his opinion to be highly probative because he cited to specific items in the Veteran's service treatment records, including the in-service diagnoses of retropatellar pain syndrome.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  There is no medical opinion of record to the contrary.

Thus, in light of the January 2017 VA clinician's opinion, service treatment records, and VA treatment records, the Board concludes that the evidence is at least in equipoise regarding whether the Veteran's left knee disability was incurred in service.  38 C.F.R. § 3.303(a).  Accordingly, resolving all doubt in his favor, service connection for a left knee disability is warranted.  38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).  

II. Headaches

The Veteran testified that he fell and experienced disorientation during active service and has experienced headaches since that time.  See March 2017 hearing testimony.

The Veteran's service treatment records contain a November 1999 report of mild frontal headaches.  

The record contains post-service reporting of headaches, including during VA treatment in July 2012 and during a January 2013 VA examination.  

After review of the evidence of record, the Board finds that service connection for headaches is warranted.

The record reflects a current diagnosis of headaches.  Specifically, the Veteran reported that he experiences headaches.  When a condition may be diagnosed by its unique and readily identifiable features, as is the case with headaches, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation.  See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Therefore, the remaining inquiry is whether the current headaches are related to service. 

When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service.  Id. at 310.  If it does, such testimony is sufficient to establish service connection.  Id.  Notably, the Veteran's contention that he has suffered headaches since service is supported by the November 1999 service treatment record and his consistent post-service reports.  Therefore, the Board finds his account of the in-service onset of his headaches and their continuation thereafter both competent and credible.  

In light of the evidence of record, including the Veteran's competent and credible reports of headaches that have continued since service, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current headaches were incurred in service.  Accordingly, resolving all doubt in his favor, service connection for headaches is warranted.  38 U.S.C. § 5107 (2012); 38 C.F.R.           §§ 3.102, 3.303 (2017).

III. Right Hand Disability

Concerning his hand disabilities, the Veteran contends that he lacerated his left hand during service and currently experiences arthritis in that hand, and that he developed right hand arthritis as a result of an in-service injury where the hand was smashed by his weapon.  See July 2013 notice of disagreement (NOD). Additionally, he asserts that his work turning wrenches as a generator mechanic during service led to his current arthritis.  See March 2017 hearing testimony. 

The Board notes that the Veteran testified at his hearing that it was his right hand that was lacerated during service and that his left hand was smashed by the weapon.  However, in light of the Veteran's service treatment records which show the weapon injury to the right hand and the laceration to the left hand, and the Veteran's July 2013 NOD in which he describes those events as consistent with the service treatment records, the Board will address those theories of entitlement.  As the left hand claim is being remanded as discussed below, the Board will only discuss the right hand claim in this analysis. 

The service treatment records reflect that in May 2000 the Veteran complained of trauma to his right hand thumb after striking it with his weapon.  A blood clot on the right hand thumb finger was noted, and the Veteran was assessed with a subungalhematoma to the right hand thumb finger.  The thumb was cauterized and the Veteran was prescribed Tylenol and told to return as needed.  The service treatment records are devoid of additional complaints of or treatment for a right hand condition.  The Veteran's upper extremities were reported as normal on his October 2003 separation examination report.  The Veteran reported conditions including knee swelling, short term memory loss, elbow pain, hemorrhoids, foot growths, and shoulder pain on a September 2003 report of medical history, but not a right hand condition.

Following service, the first medical evidence of a right hand disability comes from a January 2013 VA examination report.  X-rays conducted in conjunction with that examination revealed mild degenerative changes at the right 5th distal interphalangeal and 2nd metacarpophalangeal joints.  In consideration of these findings, the examiner diagnosed arthritis of the 5th distal interphalangeal and 2nd metacarpophalangeal joints of the right hand.  The examiner then opined that the current right hand condition was not related to service.  The examiner explained that while trauma could lead to arthritis of the hand, the service treatment records reflect that the Veteran injured his thumb in May 2000, rather than his other fingers.  Therefore, as the Veteran did not have arthritis of the right thumb, the examiner concluded that current right hand condition is not related to service.  

After review of the record, the Board finds that service connection for a right hand disability is not warranted.   

The evidence of record demonstrates that the Veteran was not shown to have arthritis of the right hand in service, or within one year following service.  To the contrary, the first diagnosis of arthritis of the right hand comes from over 9 years after service.  Thus, service connection based on chronicity or continuity of symptomatology is not applicable and competent evidence of a nexus between the current disability and service is required.  

Addressing the nexus evidence,  the Board finds that the opinion of the January 2013 VA examiner, provided after examining the Veteran and reviewing the claims file, is highly probative, as it reflects consideration of all relevant facts as evidenced by citations to relevant items from the claims file, and is supported by a detailed rationale.  See Nieves-Rodriguez, 22 Vet. App. at 302-04.  The examiner's conclusion is supported by the medical evidence of record, notably, that the Veteran's in-service hand injury was to his thumb and not to his other fingers.  Moreover, the Veteran does not specifically contend that he injured his 2nd and 5th fingers in the May 2000 strike, but rather seeks service connection for the injury as documented in the service treatment records.  See July 2013 NOD.  There is no competent medical opinion of record to the contrary.

The Board acknowledges that in his July 2013 NOD the Veteran included excerpts from the American Society of Surgery which provide a definition of arthritis and explain how arthritis develops in the joints of the hand.  However, these excerpts do not provide a link between a right hand disability and service or an incident of service.  As the excerpts are not specific to the facts of this case, the Board finds them to be significantly outweighed by the January 2013 VA opinion, provided following examination of the Veteran and review of the claims file.  See Sacks v. West, 11 Vet. App. 314, 317 (1998) (finding that treatise evidence alone is usually too general and inconclusive to establish a medical nexus); Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  

The Board also acknowledges the Veteran's belief that his right hand disability is related to service.  However, as a lay person, he has not shown that he has specialized training sufficient to render an opinion as to the cause of his right hand disability.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the diagnosis and etiology of hand disorders are matters not capable of lay observation, and require medical expertise to determine.  Accordingly, his opinions as to the diagnosis and etiology of his right hand disability, to include as the result of operating wrenches during service, are not competent medical evidence.  The Board finds the opinion of the January 2013 VA examiner to be significantly more probative than the Veteran's lay assertions.  

In summary, the preponderance of the probative evidence indicates that arthritis of the right hand was not shown in service or for many years thereafter, and that a current right hand disability is not related to service.  Accordingly, the preponderance of the evidence is against the claim, and service connection is denied.

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

The Board is grateful to the Veteran for his distinguished and honorable service, and regrets that a more favorable outcome could not be reached.  


ORDER

The claim of entitlement to service connection for a left knee disability is reopened.

Service connection for left knee disability is granted.

Service connection for headaches is granted.

Service connection for a right hand disability is denied. 


REMAND

While further delay is regrettable, the Board finds that additional development is necessary prior to adjudication of the remaining claims.

Turning first to the left hand claim, the Veteran contends that he lacerated his left hand during service and currently experiences arthritic pain in that hand.  Additionally, he asserts that his work turning wrenches as a generator mechanic during service led to his current arthritis.  

The service treatment records contain a July 2002 report of a 1 centimeter laceration to the palmar aspect of the left hand.  At that time, the Veteran reported difficulty opposing thumb and little finger due to swelling and discomfort.  Upon examination, it was revealed that the radial median and ulnar nerves were intact.  Given that the Veteran is competent to report left hand scarring and pain, the Board finds that the threshold of the McLendon standard has been met, and that the Veteran should be afforded a VA examination.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  The examiner should address whether the Veteran has residuals of the laceration injury, to include scarring, neurological, and/or musculoskeletal residuals.  

Turning to the sinusitis claim, the Veteran maintains that he experienced sinusitis problems in service and has suffered from sinusitis issues since that time.  The service treatment records note that the Veteran was diagnosed with sinusitis during service following a November 1999 computerized tomography (CT) scan, and that he reported experiencing sinus headaches and periodic nasal discharge following service.  See July 2012, August 2012 VA treatment records.  The Veteran also testified that he was currently experiencing increased sinus pressure.  Although a January 2013 VA examiner noted the Veteran's in-service diagnosis of sinusitis, he stated that the Veteran did not currently have a sinusitis diagnosis.  As the examiner did not explain his conclusion in light of the evidence of continuing sinusitis symptoms, a new VA examination and opinion are required.

Updated VA treatment records should also be requested.  38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following actions:

1. Obtain VA treatment records dating from August 2016 to the present.  If the requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such.

2. Schedule the Veteran for a hand and finger examination. The claims file must be reviewed by the examiner in conjunction with the examination.  All indicated tests should be conducted and the results reported.  After reviewing the claims file and examining the Veteran, the examiner should respond to the following:

a. Based upon the examination results and review of the record, the examiner should identify the presence of any left hand disabilities present during the course of the claim, to include scarring, neurological, and/or musculoskeletal disabilities.  If none are present, the examiner should report whether such have been present during the pendency of the claim (since June 2012).

b. If any left hand conditions are present, is it at least as likely as not (50 percent probability or greater) that the condition is causally related to service?  Please explain why or why not.  In addressing this question, please comment on the significance of the July 2002 report of treatment for a left hand laceration.

A rationale for any opinions expressed should be      set forth.  If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

3. Schedule the Veteran for a sinusitis examination. The claims file must be reviewed by the examiner in conjunction with the examination.  All indicated tests should be conducted and the results reported.  After reviewing the claims file and examining the Veteran, the examiner should respond to the following:

a. Based upon the examination results and review of the record, the examiner should identify the presence of sinusitis during the course of the claim.  If sinusitis is not present, the examiner should report whether such has been present during the pendency of the claim (since June 2012).  In rendering this opinion, the examiner should consider the Veteran's reports of experiencing sinusitis symptoms since service, as well as the June 2012 and August 2012 VA treatment records noting reports of sinus headaches and nasal discharge.  

b. If sinusitis is present, is it at least as likely as not (50 percent probability or greater) that the condition is causally related to service?  Please explain why or why not.  In rendering this opinion, the examiner should consider the November 1999 diagnosis of sinusitis during service, the Veteran's reports of experiencing sinusitis symptoms since service, and the June 2012 and August 2012 VA treatment records noting reports of sinus headaches and nasal discharge.  

A rationale for any opinions expressed should be      set forth.  If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

4. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order.

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).

These claims 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. §§ 5109B, 7112 (2012).




______________________________________________
S. C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s