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04-21-2013, 03:11 AM #1
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- Apr 2013
Entitlement to service connection for a left hand disorder.
Citation Nr: 1237080
Decision Date: 10/25/12 Archive Date: 11/09/12
DOCKET NO. 08-36 882 ) DATE )
On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama
1. Entitlement to service connection for a left hand disorder.
2. Entitlement to an evaluation in excess of 10 percent for a left elbow disorder prior to June 3, 2009.
3. Entitlement to an increased evaluation for osteoarthritis of the left elbow, currently rated as 20 percent disabling.
4. Entitlement to an initial evaluation in excess of 10 percent for ulnar neuropathy of the left arm.
5. Entitlement to an initial disability evaluation in excess of 10 percent for scars of the face and scalp.
Appellant represented by:
The American Legion WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
The Veteran had active service from August 1953 to September 1957.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating determinations of several Department of Veterans Affairs (VA) Regional Offices (ROs).
In a November 2007 rating determination, the Cleveland, Ohio, RO granted service connection for a left elbow condition and assigned a 10 percent disability evaluation. The RO also granted service connection for scars of the face and scalp and assigned a noncompensable disability evaluation.
In a March 2009 rating determination, the Montgomery, Alabama, RO, which has now assumed jurisdiction of the claim, increased the Veteran's disability for scars of the face and neck from noncompensable to 10 percent disabling, effective the date of the initial grant of service connection.
In a September 2009 rating determination, the RO denied service connection for a left hand disorder.
In a January 2010 rating determination, the RO increased the Veteran's evaluation for his left elbow disorder from 10 to 20 percent, reclassified it as osteoarthritis of the left elbow, and assigned an effective date of June 3, 2009. The RO also granted service connection for ulnar neuropathy of the left arm and assigned a 10 percent disability evaluation effective July 25, 2009.
Based upon the RO's actions, the Board has listed the issues as such on the title page of this decision.
The Veteran appeared at a Travel Board hearing at the RO before the undersigned Veterans Law Judge in June 2012. A transcript of the hearing is of record.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. Ã‚ Section. 20.900(c) (2011). 38 U.S.C.A. Ã‚ Section. 7107(a)(2) (West 2002).
The issues of increased evaluations for left elbow osteoarthritis; ulnar neuropathy of the left arm; and scars of the face and scalp are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part.
FINDING OF FACT
Residuals of a left hand injury are etiologically related to the Veteran's service-connected left elbow disorder.
CONCLUSION OF LAW
Resolving reasonable doubt in favor of the Veteran, residuals of a left hand injury were caused/aggravated by his service-connected left elbow disability. 38 U.S.C.A. Ã‚ Section.Ã‚ Section. 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. Ã‚ Section.Ã‚ Section. 3.102, 3.310 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. Ã‚ Section.Ã‚ Section. 1110, 1131; 38 C.F.R. Ã‚ Section. 3.303.
Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).
Disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. Ã‚ Section. 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. Ã‚ Section. 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).
Lay persons are not competent to opine as to medical etiology or render medical opinions. See Grover v. West, 12 Vet. App. 109, 112 (1999).
The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).
"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").
It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. Ã‚ Section. 3.102.
The Veteran maintains that he sustained an injury to his left hand as a result of his service-connected left elbow disorder. In support of his claim, the Veteran submitted numerous letters indicating that he had limited use of his left hand.
In his September 2009 notice of disagreement, the Veteran indicated that he had had troubles with his left hand prior to having had a stroke in 1995. He stated that his stroke had no effect on his left hand.
In an August 2009 addendum report following a July 2009 VA examination, a VA examiner indicated that it was his belief that the Veteran's left hand weakness was due to residuals from his cerebrovascular accident (CVA).
In his January 2010 substantive appeal, the Veteran reported experiencing loss of strength in his left hand as early as 1990. He noted that he had had two mini strokes many years after his hand had started bothering him. He stated that he was now unable to use his left hand to button his clothes, tie his shoes, or put on his socks. The Veteran indicated that he had reduced strength and use of his left hand due to his service-connected left arm condition.
At his June 2012 hearing, the Veteran testified that the results of his stroke were minimal. The Veteran indicated that there was no last lasting paralysis after either stroke. He noted that both mini-strokes had occurred in 1995. The Veteran stated that he maintained the use of his hand after both strokes. He noted that the hand problems had become worse over the past five to six years.
The Veteran testified that he hit his left hand on objects all the time as result of the arm just hanging there. He indicated that he would hit and bruise his hand on objects on an almost daily basis as a result of the left elbow problems. He also testified as to the problems that he had with his left hand, including a weakened left grip and an inability to grasp objects. He noted that the left hand was not worse following the stroke and that it had gradually worsened over time.
For a Veteran to prevail in his claim it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). While the evidence does not overwhelmingly support the grant of service connection for a left hand disorder, it cannot be stated that the preponderance of the evidence is against the claim.
The Board notes that the Veteran has been found to have left hand problems, to include loss of grip strength, and problems with extension and flexion of the fingers. The Board further observes that the Veteran has testified that he hits his left hand on an almost daily basis due to problems with his left elbow/arm. These are facts that the Veteran can testify to without medical expertise. The Board finds the statements credible. While the VA examiner attributed the Veteran's left hand problems to his CVA, the Board finds credible the testimony of both the Veteran and his spouse that he had no problems with his left hand following the mini-strokes in 1995 and that his left hand problems have gradually developed.
Based upon the current facts of record and resolving reasonable doubt in favor of the Veteran, the Board finds that a left hand disorder, as secondary to the service-connected left elbow residuals, is warranted. Duty to Assist and Notify
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. Ã‚ Section.Ã‚ Section. 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R Ã‚ Section.Ã‚ Section. 3.102, 3.156(a), 3.159, 3.326(a) (2011).
Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. Ã‚ Section. 5103(a); 38 C.F.R. Ã‚ Section. 3.159(b)(1).
For claims pending before VA on or after May 30, 2008, 38 C.F.R. Ã‚ Section. 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008).
The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. Ã‚ Section. 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this claim, further assistance is not required to substantiate that element of the claim.
Service connection for a left hand disorder is granted. REMAND
As it relates to the claim for an increased evaluation for the left elbow disorder, to include neurological impairment resulting from the elbow disorder, the Board notes that the Veteran, at the time of his June 2012 hearing, indicated that the symptomatology associated with the left elbow disorder had markedly increased. He also noted having constant pain in the elbow area. The Veteran stated that the range of motion was becoming worse and worse.
As it relates to the claim for an increased evaluation for scars of the scalp and face, the Board notes that at the time of his June 2012 hearing, the Veteran testified that some of the scars continued to grow and were protruding. He noted that the scar on his chin had gotten considerably larger. He also reported having pain and sensitivity for each of his facial scars.
VA is obligated to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). The Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Based upon the above additional VA examinations are warranted.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. Ã‚ Section. 20.900(c) (2011). Expedited handling is requested.)
1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected left elbow osteoarthritis. All indicated tests and studies must be performed and all findings must be reported in detail. The claims folder should be made available to the examiner and the examiner should note such review in his/her report. Ranges of motion should be reported in degrees. The examiner should determine whether the service-connected left elbow osteoarthritis is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups.
2. The Veteran should be scheduled for a VA neurological examination, preferably by a neurologist (if possible but not required), to determine the severity of his service-connected ulnar neuropathy of the left upper extremity, if any. All indicated tests and studies must be performed and all findings must be reported in detail. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must comment on the absence or presence of the following (again, if possible, but not required): complete paralysis, to include griffin claw deformity, due to flexor contraction of the ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences, loss of extension of ring and little fingers, cannot spread fingers (or reverse), cannot adduct thumb, flexion of wrist weakened; incomplete paralysis, if paralysis is incomplete, please indicate whether the paralysis is mild, moderate, or severe. Complete detailed rationale should be provided for all requested opinions.
3. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected facial scars (if any). All indicated tests and studies must be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum.
The examiner should report the severity of all of the Veteran's facial scars, to include scar size (length and width), whether surface contour is elevated or depressed on palpation, and whether they are adherent to underlying tissue.
The examiner should also report (if possible, but not required) the size of any hypopigmentation, hyperpigmentation, abnormal skin texture, and any area where underlying soft tissue is missing or skin is indurated and inflexible.
The examiner should also report whether there is any gross distortion or asymmetry of any features or paired sets of features (including nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, and lips).
4. To help avoid future remand, VA must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, undertake corrective action before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998).
5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the remaining claims on appeal. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for future review.
The appellant 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. Ã‚ Section.Ã‚ Section. 5109B, 7112 (West Supp. 2011).
JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs