BVA9503195 DOCKET NO. 91-18 430 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a disorder of the hands and feet. 2. Entitlement to service connection for arthritis. 3. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from January 1971 to March 1972. The issues on appeal arise from a January 1990 decision originating from the Atlanta, Georgia regional office. During the pendency of the appeal, the veteran moved into the geographic area served by the Nashville, Tennessee VA regional office (RO) and it was from there that the matter was last certified on appeal to the Board. In addition, the record shows that this appeal was previously before the Board and in December 1991 and October 1993, the case was Remanded for further development. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the disability affecting his hands and feet was aggravated by service. He has contended that this disability is arthritis and that it is related to the arthritis he subsequently developed. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection for a disorder of the hands and feet is warranted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim concerning service connection for a disorder of the hands and feet has been obtained by the RO. 2. A disorder of the hands and feet was not noted during the examination conducted in connection with the veteran's enlistment into military service. 3. Service medical records show the veteran complained of increasing pain in the hands and feet that was attributed to multiple congenital anomalies of connective tissue, manifested by lax, deformed joints of the extremities. 4. The veteran was discharged from service due to the congenital disorder affecting his hands and feet. 5. In May 1994, a VA examiner concluded that the increased demands from the physical activity the veteran underwent in service resulted in aggravation of the congenital disorder affecting the veteran's hands and feet. CONCLUSION OF LAW The disorder of the veteran's hands and feet was aggravated by service. 38 U.S.C.A. § § 1110, 1111, 5107; (West 1991); 38 C.F.R. § 3.304, 3.306 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for service connection for a disorder of the hands and feet is well grounded in that it is plausible. Moreover, the Board is satisfied that all relevant evidence necessary for an equitable disposition of this claim has been obtained. The record contains the veteran's service medical records and numerous post service medical records, including the report of an examination conducted in May 1994 in connection with this claim. The matter has also been Remanded twice in order to obtain additional evidence. In this regard, the evidence shows that the veteran was requested to identify all the health care providers from whom he received relevant treatment and his response indicated that all such records have been obtained. Accordingly, no further development is necessary to comply with the provisions of 38 U.S.C.A. § 5107. Under applicable criteria, service connection may be granted for disability incurred in or aggravated by service. 38 U.S.C.A. § 1110. In addition, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § § 1111; 38 C.F.R. § 3.304. A pre-existing disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is clear and unmistakable error that the increase in disability is due to the natural progress of the disease. 38 C.F.R.§ 3.306. Pursuant to 38 C.F.R. § 3.303(c), congenital defects are not diseases or injuries within the meaning of applicable legislation, although service connection may be granted for diseases (but not defects) of congenital , developmental or familial origin. VA O.G.C. Prec. 82-90 (July 18, 1990). The record shows that no abnormalities of the veteran's feet or hands were noted at the time of his enlistment examination conducted in January 1971. The feet and upper extremities were noted to be normal upon clinical evaluation. Beginning in February 1971, the record shows that the veteran complained of pain in his hands and feet. At that time, it was recorded on a rheumatology consultation report that the veteran stated he was born with a deformity of the fingers and toes which essentially consisted of the hyperextension of the proximal interphalangeal joints and flexion of the distal interphalangeal joints. The medical examiner confirmed the presence of these deformities and indicated they would "otherwise be asymptomatic except now aggravated by running and pushups." Subsequent records show complaints of increasing pain of the hands and feet and in October 1971 the veteran was hospitalized. The narrative summary report of this hospitalization revealed that data relating to rheumatoid disease and connective tissue disease were interpreted as normal, and it was determined that the veteran had multiple congenital anomalies which produced arthralgia. It was specifically noted that this disease existed prior to service but that aggravation occurred while in service. It was further recommended that the veteran meet a medical board. The medical evaluation board examination report dated in November 1971 revealed what was described as swan neck deformities of the fingers bilaterally and short, "caves" feet with tight heel cords and hammertoes bilaterally. The medical board report dated in December 1971 revealed that the veteran was diagnosed to have multiple congenital anomalies of connective tissue, manifested by lax joints and arthralgias and it was recommended he be discharged from the service. A physical evaluation board report dated in January 1972, again showed that the veteran was diagnosed to have multiple congenital anomalies of connective tissue, manifested by lax, deformed joints of the extremities, with complaints of arthralgias interfering with performance of duty. It was also concluded that this existed prior to service, but that there was no permanent service aggravation beyond the natural progress of the disease. The rationale for the conclusion that the condition was not aggravated beyond the natural progress of the disease was not set forth. The veteran was discharged from the service because of this disability in March 1972. In May 1994, the veteran underwent a VA examination. At that time, he was diagnosed to have hyperextension deformities of the metacarpophalangeal joints and flexion deformities of the proximal interphalangeal joints both feet (claw toes) second, third, fourth and fifth toes of both feet; swan neck deformities of the index, long, ring and fifth fingers, both hands and flexion deformities of the thumbs of both hands. The examiner went on to opine that the veteran likely had a pre-existing congenital problem with the joints of both hands and both feet, that resulted in swan neck deformities in the hands and claw toes of both feet. He stated that the veteran's history indicated that he had no clinical problems, with his hands or feet, prior to service, but that it was "likely that the increased demands of his physical activities in basic training resulted in aggravation of the pre-existing conditions." In view of the normal findings regarding the veteran's hands and feet at the time of his enlistment examination, the Board concludes that the presumption of soundness attaches in this case. Accordingly, in order to rebut this presumption, the burden of proof is on the VA to produce clear and unmistakable evidence that the veteran's hand and foot disorder existed prior to service and if this is accomplished, to show that the condition was not aggravated by service. In determining whether there is clear and unmistakable evidence that the injury or disease existed prior to service, the Board considers the history recorded at the time of the examination together with all other material evidence. See 38 C.F.R. § 3.304(b)(1). In determining the inception of the veteran's bilateral foot and hand disorder, the applicable regulation requires that the following is to be considered: medical judgment, accepted medical principles, history with regard to clinical factors pertinent to the basic character, origin and development of such injury or disease, and a thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. See 38 C.F.R. § 3.304(b)(1). In Doran v. Brown, 6 Vet.App. 283 (1994), the United States Court of Veterans Appeals held that the presumption of soundness may be rebutted by clear and unmistakable evidence consisting of the veteran's own admissions during in-service clinical evaluations of a pre-service history of the disability for which service connection is claimed. In this case, the evidence shows that the veteran made such an admission during service when he advised an examiner in February 1971 of his pre-existing hand and foot disorder. The record also shows that the in-service treating physicians reached the same conclusion regarding the onset of the disorder and the 1994 VA examiner also stated that the disorder pre-existed service. In view of these medical opinions and the veteran's own statement, the Board finds that the veteran's disorder of the hands and feet clearly and unmistakably existed prior to service and the presumption of soundness has been rebutted. However, the Board also concludes that the evidence in this case demonstrates that the veteran's bilateral hand and foot disorder was aggravated by service. The Board notes that service records dated as early as February 1971, show that an examining physician concluded that the condition would have been asymptomatic but for aggravation caused by the veteran's running and pushups. The October 1971 hospital narrative summary report reveals that aggravation was considered to have occurred in service and in the January 1972 physical evaluation board report, it was also concluded that the disorder had been aggravated. Moreover, the VA physician who examined the veteran in 1994, and who had the benefit of reviewing the veteran's entire medical history since his time in service, found that it was the increased demands of the veteran's physical activities in service which resulted in the aggravation of his pre-existing foot and hand disorders. Although it was indicated on the 1972 service physical evaluation board report that the aggravation the disability underwent in service was not beyond the natural progress of the disease, no rationale for this conclusion was set forth. In view of the contrary conclusions set out in both other service medical records and in the report of the VA examination conducted in connection with this claim, the preponderance of the evidence on this question supports the conclusion that the disability was aggravated by service. Accordingly, service connection for a disorder of the veteran's hands and feet is warranted. ORDER Service connection for a disorder of the hands and feet is granted. REMAND With respect to the claim regarding service connection for arthritis, the veteran has contended that this disability is secondary to the disorder of his hands and feet. Given that prior to the preceding decision, the latter disorder has not been service connected, the RO has not had an opportunity to adjudicate the question the veteran has raised. In order to accomplish that, the claim must be Remanded. In addition, the Board observes that with respect to the claim regarding service connection for hearing loss, the veteran has contended that this disability is the result of his exposure to excessive noise while in service. In an audio examination conducted for VA purposes in May 1994, it was determined that the veteran had a bilateral conductive hearing loss. The examiner also remarked that the veteran's history was positive for military noise exposure. However, no opinion was entered regarding whether the military noise exposure resulted in the current hearing loss. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107 (West 1991). This duty includes conducting examinations with respect to the claimed condition and if the resulting examination report does not provide sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (1994), Littke v. Derwinski, 1 Vet.App. 90 (1991). As set forth above, the May 1994 audio examiner noted a history of military noise exposure, found a current hearing loss, but failed to indicate whether the two were related. Therefore, the examination was inadequate and further examination to address this matter is necessary. While further delay is regrettable, under these circumstances, additional development is necessary in this case in order to ensure an equitable disposition is obtained. Therefore, this case is Remanded to the RO for the following: 1. The veteran should be scheduled for a special audiometric examination, the purpose of which is to determine the nature and extent of the veteran's bilateral hearing loss as well as to determine the etiology of this disability. All indicated tests and studies should be performed and the examination should be conducted in accordance with the pertinent provisions of the VA Physician's Guide for Disability Evaluation Examinations. The claims folder must be made available to the examiner in order for him or her to be familiar with the veteran's pertinent history. The examination report should specifically set forth and fully describe any noise exposure the veteran experienced in service and it should be stated whether the current hearing loss is the result of in-service noise trauma. 2. Upon completion of the above, the RO should review the evidence and enter its determination with respect to the issues of service connection for hearing loss and service connection for arthritis secondary to a service connected disorder. If any decision remains adverse to the veteran, he and his representative should be provided with a supplemental statement of the case, which should include citation to appropriate law and regulation, and be given an opportunity to respond to it before the case is returned to the Board for further review. No action is required of the veteran until he is further informed. C. W. SYMANSKI Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).