Citation Nr: 0002396 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 97-06 653A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for right hand injury. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Maureen A. Young, Associate Counsel INTRODUCTION The veteran had active military service from March 1974 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1996 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Oakland, California. FINDING OF FACT The claim of entitlement to service connection for a right hand injury is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for a right hand injury is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Service medical records reveal no abnormalities of the upper extremities, at the time the veteran was examined for the purpose of enlistment in the service. Strength and range of motion of his upper extremities was reported as normal. There was no bone, joint or other deformity noted. The report showed that he is right-handed. A discharge examination was conducted on October 8, 1975. That report also showed normal strength and range of motion of the upper extremities. No scars on the right hand were identified. It was noted that the veteran had no inability to perform certain motions. In October 1995 the veteran filed a claim for service connection for right hand injuries. To support his claim he submitted a detailed statement of an incident when his right hand was injured. He stated that in August or September of 1975 while on duty, as a unit-police officer in Germany, he aided the break up of a fight and sustained lacerations to the extensor surface of his fingers as well as the flexor surface of the first metacarpophalangeal joint. The resulting wounds required approximately thirty stitches. He further stated that a duty officer took him to Karlsrue Infirmary [sic] where he was treated for the hand injury. He stated that he has no feeling around the wound, thumb and palm area. Further, he stated he drops items from his right hand. He stated that sometimes he is awakened by pain of his right hand. He also stated that he is still picking glass out of his thumb and on the top of his hand. He stated that he has a hard time writing with his right hand; and, in the past three years, his right hand has worsened. In July 1996 the veteran underwent a VA compensation examination for his right hand. During the examination, he provided the history of the injury to his right hand as noted above. He also reported that he still has moderately severe pain on any pressure of his metacarpophalangeal joint. He claimed that his hand fatigues and cramps easily and he has numbness over his fingers. Examination revealed a two centimeter scar over the metacarpophalangeal joint. The diagnoses were right hand pain secondary to old injury, etiology undetermined and moderately severe loss of muscle strength of the right thumb, etiology unknown. X-ray revealed no fracture, dislocation or bony abnormality. In February 1997 the veteran filed notice of disagreement with the RO's determination to deny entitlement to service connection for a right hand injury. In March 1997 he appealed to the Board. He contended on appeal that he is slowly losing use of his right hand due to the injury and requested service connection due to the loss of use of his writing hand. A statement dated in April 1997 was submitted by the veteran's parents. In it, they stated that when the veteran was home in July1975 he had no injury to his hand; but, a month or so after his leave the veteran told them about being hit with a bottle that cut his right hand. They further stated that since his discharge, his injury has caused him considerable pain and discomfort. On October 15, 1975 it was recommended that the veteran receive a general discharge from the United States Army. On that same day, he voluntarily accepted the general discharge. A personal hearing was held in June 1998. At the hearing the veteran testified that after his injury he was treated at a medical facility at Kitzingen Harvey Barracks in Tensengen, Germany. Hearing Transcript (Tr.), pp. 3, 8. He also testified that the incident associated with the injury to his right hand occurred sometime around October 21, 1975 which is the reason the separation examination shows no injury to his right hand. Tr., pp. 4-7. He further testified that he was supposed to be discharged in October 1975 but was retained as a material witness in a murder trial. Tr., pp. 2, 7. He stated that after being held over to testify, he was reassigned to unit police duty. Tr., p. 2. A search for clinical records, indicating treatment for a hand injury at Kitzingen, Germany United States Army Hospital for the period between October 1, 1975 to October 31, 1975 was conducted by the National Archives and Records Administration (NARA) in June 1999. No records were found. This search followed a search conducted at the National Personnel Records Center (NPRC) where it was revealed that all service medical records had been furnished to the RO. It was noted in NPRC's response that morning reports were discontinued by the year 1974, therefore, there were no 1975 morning reports to search. Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The United States Court of Appeals for Veterans Claims (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown 5 Vet. App. 19, 21 (1993). Where the issue presented in an application for service- connection disability is factual in nature, that is, whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under 38 U.S.C.A. § 5107(a). See Cartright v. Derwinski, 2 Vet. App. 24 (1991). However, the Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). 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) (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claim of entitlement to service connection for a right hand injury must be denied as not well grounded. The Board reiterates the three requirements for a well grounded claim: (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 injury or disease and a current disability. See Caluza, supra. The threshold question in this case is whether there is sufficient evidence in the record to establish that an injury to the veteran's right hand was incurred while in service or during any applicable presumption period. The evidence shows that there were no abnormalities of the veteran's right hand noted at the separation examination in October 1975. The veteran contends that the incident which resulted in an injury to his right hand occurred subsequent to his separation examination. He also contends that he was treated in-service for a right hand injury. A search for service medical records by the NPRC and NARA revealed no record of any such treatment. There are neither in-service records of an incident involving an injury to the veteran's right hand, nor service medical records of a diagnosis or treatment for a right hand injury. Consequently, there is no evidence of an in-service incurrence of the veteran's claimed right hand injury. The record is completely devoid of medical evidence for any post-service treatment for symptoms associated with a right hand injury. The earliest diagnosis associated with a right hand injury was via VA examination in July 1996, more than twenty years after service. The absence of any medical records of a diagnosis or treatment for a right hand injury for years after service is evidence highly probative against the claim. See Savage v. Gober, 10 Vet. App. 488 (1997) see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Such evidence annuls any consideration of service connection based on continuity of symptomatology. See Savage, supra. Moreover, the presumptive period under 38 C.F.R. § 3.307 is inapplicable in this instance because more that twenty years have passed since the veteran was discharged from service and when he was diagnosed with residuals of a right hand injury. The VA examiner noted that the etiology of the veteran's right hand pain and severe loss of muscle strength of the right thumb is unknown. There is no other competent medical evidence of a diagnosis that suggests the origin of the veteran's right hand injury. This shows a lack of competent medical evidence of a link between the veteran's right hand injury and service. Since the veteran has failed to provide competent medical evidence of a nexus between his claimed in- service right hand injury and his current right hand disability, his claim must be denied as not well grounded. See Caluza, supra. The veteran has asserted that he experiences moderately severe pain, fatigue, and cramps of his right hand and numbness over his fingers as a result of the right hand injury he sustained while in service. Furthermore, he has proffered statements of his parents who stated that the injury has caused the veteran considerable pain and discomfort. The veteran's own opinion and statements and his parents' statement will not suffice to well ground his claim. Case law provides that while a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion, which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). The statements by the veteran and his parents are considered under Espiritu, supra to the extent such statements relate to observable symptoms of the veteran's claimed disability. However, such statements cannot serve to well ground the veteran's claim in the absence of competent medical evidence of a link between the veteran's claimed right hand disability and service. Because the veteran has failed to provide competent evidence of a nexus between a current right hand disability and military service, the Board finds that his claim of entitlement to service connection for a right hand injury must be denied as not well grounded. As the veteran's claim for service connection for a right hand injury is not well grounded, the doctrine of reasonable doubt has no application to his case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the RO has advised the veteran of the evidence necessary to establish a well grounded claim, and the veteran has not indicated the existence of any evidence that has not already been obtained that would well ground his claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). ORDER The veteran not having submitted a well grounded claim of entitlement to service connection for a right hand injury, the appeal is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals