Citation Nr: 1761187
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 05-16 879 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky

THE ISSUES

1. Entitlement to service connection for residuals of a left hand fracture.

2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

(The issues of entitlement to service connection for sleep apnea, high cholesterol, arthritis, a lumbar spine disorder, a cervical spine disorder, a left knee disorder, vertigo, a skin disorder, a sinus disorder (claimed as sinusitis) and acid reflux, as well as petitions to reopen previously denied claims for service connection for hypertension and diabetes mellitus, type II, are the subject of a separate appellate decision.)

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

S.M. Kreitlow

INTRODUCTION

The Veteran had honorable active military service from September 1972 to July 1976. Thereafter, he served with the Army National Guard from July 1987 to July 2004 during which he was called to and served on active duty from September 2002 to July 2003.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2005 and April 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In October 2009, the Veteran appeared and testified at a Travel Board hearing before Veterans Law Judge MacKenzie on the issues listed on the Title page of this decision in addition to the issues of entitlement to an initial compensable disability rating for bilateral hearing loss and service connection for tinnitus. Thereafter, in a December 2009 decision, the Board (Judge MacKenzie) denied a compensable disability rating for bilateral hearing loss, granted service connection service connection for tinnitus and remanded the two claims addressed herein for additional development. These two claims were again remanded in November 2013 (along with other issues that are being addressed in a separate decision). In May 2017, the Veteran again appeared and testified at a Travel Board hearing, this time before Veterans Law Judge Graham, which hearing was scheduled for other issues on appeal that were perfected after those previously heard by Judge MacKenzie, but the Veteran also discussed these previously heard issues as well.

Since the two Veterans Law Judges who have conducted these hearings are presently sitting on the Board, they must participate in making the final decision on the issues they both heard at their hearings and, therefore, a panel decision by three Veterans Law Judges is required. See 38 C.F.R. § 20.707 (2017). Thus, the Veteran is entitled to a hearing before the third Veterans Law Judge. Arneson v. Shinseki, 24 Vet. App. 379 (2011). However, at the May 2017 hearing, the Veteran stated that he did not wish to appear at a hearing before a third Veterans Law Judge. As the Veteran has declined a third Board hearing in this matter, the Board may proceed to adjudication of his claims without prejudice to him.

The issue of service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran’s favor, the synovitis and degenerative joint disease of the left index finger are residuals of the fractures of the third and fourth metacarpals incurred during his active service in June 1975.

2. The degenerative joint disease of the Veteran’s left hand is related to his in-service fractures of the third and fourth metacarpals in the left hand.

CONCLUSION OF LAW

Service connection for residuals of fractures of the third and fourth metacarpals of the left hand, synovitis and degenerative joint disease, left index finger, and degenerative joint disease, left hand, is warranted. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran seeks service connection for residuals of a fracture he sustained to his left hand and/or wrist during his first period of service. He states that the injury to his left hand/wrist has resulted in pain in the wrist, hand and fingers that causes difficulties in using the hand while working as a heavy equipment mechanic and in using the hand for normal daily activities. He acknowledged at his hearing in October 2009 that, although he was able to perform his duties during the remainder of his active service, as he got older, it started bothering more and more and now he has arthritis in the hand that is very problematic. As to the arthritis in the hand and/or wrist, he argues that the injury made him more susceptible to having arthritis in his hand and fingers as he aged. See March 11, 2009 VA Form 9.

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); Hickson v. West, 12 Vet. App. 247, 253 (1999).

The service treatment records confirm that, in June 1975, the Veteran’s forearm was hit by a full can of beer, which caused a transverse fracture of the third and fourth metacarpals of the left hand as shown by X-ray. A cast was applied. Except for having a hemorrhage under the cast shortly after it was applied, the Veteran’s recovery appears to have been uncomplicated. An August 1975 treatment note indicates the fracture had healed well and he was to have the case removed and start physical therapy. There is no additional record of treatment for this problem during the remainder of this period of active service. The Veteran’s separation examination conducted in June 1976 did not find any abnormality of the left upper extremity and did not comment on the history of the fracture.

The Veteran’s service treatment records also include a March 2003 treatment note, which was during his period of deployment with the National Guard from September 2002 to July 2003. This treatment note shows the Veteran complained of the joints in his bilateral hands and wrists bothered him. Arthritis was questioned, but the impression given was wrist strain.

In support of his claim, the Veteran submitted records from his private treating physician who provided favorable opinions relating his currently diagnosed left hand and index finger problems with the in-service injury. Significantly, in July 2011, this treating physician diagnosed the Veteran to left index metacarpophalangeal (MCP) joint synovitis and degenerative joint disease and opined that it is “most likely post-traumatic in origin given his history” (physician had noted that Veteran reported a remote history of injury to left hand in which he had multiple metacarpal fractures while in military). Subsequently, in July 2013, the same physician diagnosed the Veteran to also have arthritis in the carpometacarpal (CMC) joints of the left hand, and he also opined that these “changes in the left [hand] are likely related to old MCP fractures [or] are at least contributing to his problem significantly. In reviewing some old records from 1975, the fractures were of the [third and fourth MCP’s and] that would likely explain the deg[enerative] changes in the CMC joints that he has at present.” Finally, in a July 2017 treatment note, this physician stated that the Veteran’s left index MCP synovitis is “more likely than not related to his history related to old injury. In other words, it’s most likely the result of his old metacarpal injuries from June 1975.”

In contrast, the Veteran has undergone multiple VA examinations as a result of which the VA examiners have provided negative opinions against a nexus relationship between the Veteran’s current left hand and index finger disorders and the in-service fractures of the third and fourth metacarpals. On VA examination in January 2009, the VA examiner diagnosed the Veteran to have traumatic arthritis of the base of the left hand and osteoarthritis of the distal interphalangeal (IP) joints of fingers two through five of the left hand. The examiner opined that the osteoarthritis of the distal IP joints of the second through fifth fingers of the left hand were not related to the prior history of fractures of the third and fourth metacarpal bones of the left hand. The examiner, however, did not provide an opinion as to the traumatic arthritis of the base of the hand.

On VA examination in June 2013, the VA examiner only diagnosed the Veteran to have degenerative joint disease of the left pointer finger. The examiner opined that this condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness because the Veteran’s in-service left hand injury was a transverse fracture of the third and fourth metacarpal bones, which healed with no sequela, whereas his current symptoms of degenerative joint disease and pain of the left pointer finger involve the MCP joint, which was not injured during military service and would not be affected by the healing fracture of the left third and fourth metacarpal bones.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Nevertheless, when, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

After considering all the evidence, the Board finds that it is in equipoise as to whether there is a nexus relationship between the Veteran’s current left index finger synovitis and degenerative joint disease and the in-service fractures of the third and fourth metacarpals. The Board does not find that it can give more or less weight to either the VA examiners’ medical opinion or the private physician’s medical opinions as both appear to be based upon a review of the relevant records, the Veteran’s reported history and physical examination. In addition, the rationales provided are equally non-detailed. Essentially the VA examiners say the left index finger conditions are unrelated and not affected by the in-service fractures, while the private physician says they are, without really explaining why such is the case. Therefore, the Board must assign equal weight to all the opinions provided. Consequently such opposing opinions of equal evidentiary weight raise a reasonably doubt as to whether there is a nexus relationship between the Veteran’s in-service injury and his current left index finger synovitis and degenerative joint disease. Resolving reasonable doubt in the Veteran’s favor, service connection must be granted for left index finger synovitis and degenerative joint disease as a residual of the in-service fractures of the third and fourth metacarpals.

As for the degenerative joint disease of the CMC joints of the left hand, the only actual medical opinion of record is that of the private physician as the January 2009 VA examiner who also rendered such a diagnosis (traumatic arthritis of the base of the hand) failed to provide a nexus opinion as to this condition. Consequently, the only medical opinion of record is favorable to the Veteran’s claim and the Board sees no reason to disregard this medical opinion as the private physician clearly based his opinion upon an examination of the Veteran and a review of his in-service treatment records from 1975. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Thus, the Board finds that the preponderance of the evidence is in favor of granting service connection for degenerative joint disease of the left hand as a residual of the in-service fractures of the third and fourth metacarpals.

The Board has considered the doctrine of reasonable doubt. After resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for residuals of left third and fourth metacarpal fracture, synovitis and degenerative joint disease, left index finger, and degenerative joint disease, left hand. The Veteran’s claim is, therefore, granted. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

ORDER

Entitlement to service connection for residuals of fractures of the third and fourth metacarpal of the left hand, synovitis and degenerative joint disease, left index finger, and degenerative joint disease, left hand, is granted.

REMAND

Unfortunately, the Board finds that remand of the Veteran’s claim for service connection for an acquired psychiatric disorder, to include PTSD, is again required for additional development because the evidence is insufficient to issue a decision at this time. Specifically the Board finds that the medical opinion obtained on VA examination in June 2010 fails to address significant favorable evidence of record, to wit, an April 2003 in-service treatment record showing the Veteran complained of insomnia of one month duration and “feels extremely stressed” and he was assessed to have anxiety/depression. This treatment was during his period of active duty from September 2002 to July 2003. From the onset of his claim for service connection, the Veteran has asserted that his current psychiatric problems are related to “stress” he felt during this deployment from doing guard duty that required him to search vehicles for weapons and explosives at installations where dangerous chemicals and weapons were stored and destroyed. He claims that the stress of this changed him and caused him to have insomnia, and that he continues to have nightmares involving bombs exploding and difficulties communicating with and being around others. The Board further notes that this is the first record of mental health treatment in the claims file despite the Veteran’s later report of stressful events that occurred during his first period of active duty and prior to his second period of active duty. Consequently, this treatment records is highly probative when considered with the Veteran’s lay statements and needs to be discussed by the VA examiner in considering whether the Veteran’s current mental health disorder(s) are related to his active military service, especially his second period of active duty.

In addition, subsequent to that VA examination, the Veteran submitted a statement in June 2011 in which he reported an additional “stressor” for his claimed PTSD. He related that, while serving at Kaneohe Marine Air Station in Hawaii, his company was called up to participate in picking up Vietnamese refugees in the off-shore waters of Vietnam in March 1975. He related that the ship he was on was fired upon by the enemy and they had to push helicopters over board to accommodate the refugees. He stated that being away from family and friends and having to endure so much death and trying to stay alive has always given him traumatic memories that he cannot erase. Although the Veteran had mentioned this activity in relation to other claims before, he had not previously argued that this activity in service was a stressful event causing him current mental health issues or had he related the specifics given in this correspondence. Thus, this new stressful event needs to be considered by an examiner in considering whether the Veteran’s current psychiatric disorder is related to his active service.

However, the Board notes that, despite the Veteran’s allegations and persistence in stating that he has PTSD, neither his treating physicians nor the June 2010 VA examiner has diagnosed him to have PTSD. In fact, the June 2010 VA examiner found that the Veteran’s symptoms did not meet the DSM-IV criteria for a diagnosis of PTSD. Rather, the medical evidence shows that he has been diagnosed to have an Anxiety Disorder, Not Otherwise Specified (NOS), and a depressive disorder alternatively diagnosed as Dysthymic Disorder (Dysthymia), Depression and Major Depressive Disorder, recurrent. As PTSD has not been diagnosed, a verified stressor is not a necessary requirement to find that the Veteran’s current acquired psychiatric disorder(s) is related to his active military service. Rather, the claim need only be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a).

With regards to this new “stressor” the Veteran related in his June 2011 correspondence, the Veteran’s service records show that he was sent to Guam for the month of August 1975 and that he stated in April 2011 correspondence relating to a claim of herbicide agent exposure based upon this same activity that, after picking up Vietnamese refugees, he was later at the Marine Barracks in Guam where the refugees were living on a compound. Given this evidence, the Board finds it is likely that he was at least exposed to Vietnamese refugees in Guam at that time. However, as there is nothing in the records to show the Veteran was ever aboard ship or participated in any such exercise or operation relating to rescuing Vietnamese refugees in 1975, the Board finds that further efforts should be undertaken to ensure that this part of his report is consistent with his service, especially about being in the off-shore waters of Vietnam such that his ship received enemy fire or was involved in transporting refugees.

In addition, in May 2017, the Veteran submitted a letter from his VA treating psychologist in support of his claim. The Board does not find this statement sufficiently probative to base a decision on as the statement is merely a recitation of the Veteran’s statements without provision of an independent medical nexus opinion. However, such should be considered by a VA examiner on providing a medical nexus opinion.

Finally, the Board finds that a new VA examination should be provided to the Veteran as there appears to have been a change in the nature of his mental health conditions since he was last examined. On examination in June 2010, he was diagnosed to have an Anxiety Disorder, NOS, and Dysthymic Disorder. These diagnoses were consistent with those seen in his VA mental health treatment records at that time. However, in February 2012, the Veteran began seeing a new provider at VA and his diagnosis was changed to simply Depression. In the May 2017 letter, the Veteran’s VA treating psychologist stated his current diagnoses are Major Depressive Disorder, recurrent, and Anxiety, NOS. Consequently, where initially it appears the Veteran’s Anxiety Disorder was his primary mental health issue, now it appears that his primary problem is depression. Consequently, given the lengthy time since the last examination, the Board believes a contemporaneous examination is warranted to evaluate the current state of the Veteran’s mental health issues and provide any guidance necessary with regards to changes in diagnoses over that period.

Accordingly, the case is REMANDED for the following action:

1. Develop for any new VA and/or non-VA mental health treatment records since the last records in the claims file.

2. Please obtain the Veteran’s full service personnel records.

3. Contact the Veteran and ask him to provide additional details relating to his participation in 1975 with picking up Vietnamese refugees in the off-shore waters of Vietnam to include, but not limited to, the ship he was stationed on, the time period (e.g., days, weeks, months) such operation occurred, when and where his ship took enemy fire, when and where helicopters were dumped overboard, and description of events involving death or serious injury to others, including names of those who were injured or died, if possible.

4. After receiving the Veteran’s response to the above request (or waiting a sufficient time for a response without one), develop for evidence relating to the Veteran’s report that he participated with his company in efforts to evacuate or rescue Vietnamese refugees in the offshore waters of Vietnam in 1975 (he reported this activity was in March 1975, but service records indicate he was assigned to Guam in August 1975). He was assigned to Co. F, 2nd Bn, 3d Mar, 1st Mar Bde, FMF at Kaneohe Marine Air Station in Hawaii in 1975.

5. When all additional development is completed and all obtained evidence is associated with the claims file, schedule the Veteran for a new VA examination to determine the nature and etiology of the Veteran’s claimed psychiatric disorder(s). The Veteran’s claims file should be made available to the examiner for review. All necessary tests and/or studies should be conducted.

After reviewing the claims file and examining the Veteran, the VA examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any acquired psychiatric disorder either diagnosed at the time of this examination, or at the time the Veteran filed his claim in February 2005 or thereafter but having subsequently resolved or gone into remission, to include an anxiety disorder and a depressive disorder, is related to any injury, disease or event incurred during either period of the Veteran’s active military service. [The Veteran served on active duty from September 1972 to July 1976 and from September 2002 to July 2003]. In rendering an opinion, the VA examiner should consider and discuss as necessary the Veteran’s lay assertions of certain stressful events or situations during his periods of active service, as well as non-service stressful events in his life (helpful sources consist of the report of the June 2010 VA examination, correspondence received in February 2005, June 2011 and June 2017, and hearing testimony in October 2009 and May 2017); the in-service treatment record from April 2003 showing complaints of insomnia and stress with an assessment of anxiety/ depression; and private and VA mental health treatment records starting in July 2004.

The examiner should provide a complete explanation for all opinions. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

6. Thereafter, readjudicate the Veteran’s claim. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order.

The Veteran has the right to submit additional evidence and argument on the matter 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 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).

M.C. GRAHAM A.C. MACKENZIE
Veterans Law Judge Veterans Law Judge
Board of Veterans’ Appeals Board of Veterans’ Appeals

__________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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