BVA9506019 DOCKET NO. 93-11 826 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a right thumb disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca A. Kelly, Associate Counsel INTRODUCTION The appellant served on active duty from September 1952 to August 1954 and from September 1954 to February 1956. This case was previously before the Board of Veterans' Appeals (Board) in August 1985, at which time entitlement to service connection for residuals of right thumb injury was denied, on the basis that the right thumb symptomatology in service was acute, transitory and resolved without residuals by the time of separation from active service, with no residuals demonstrated within one year following his discharge. This appeal arises from an October 1991 rating decision of the New York, New York, Department of Veterans Affairs (VA), Regional Office (RO), which found that no new and material evidence had been submitted to reopen the appellant's claim for entitlement to service connection for residuals of a right thumb injury. The appellant testified at a hearing in April 1992 and the Hearing Officer affirmed the RO's decision in November 1992. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his in-service injury caused ligament damage to his right thumb and that all of his statements of record demonstrate compliance with VA regulations; therefore, he is entitled to reopening of his service-connection claim. He further contends that soon after his discharge, he was treated by VA for pain from his right thumb injury and that all of his residuals, to include limitation of motion, have continued and increased in severity since his discharge. 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 the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim to reopen is well grounded. FINDINGS OF FACT 1. The Board of Veterans' Appeals denied entitlement to service connection for residuals of a right thumb injury in August 1985. 2. Additional evidence submitted since that time fails to show that the appellant's current residuals of a right thumb injury were present in service, that they manifested to a compensable degree within one year of separation, or that they were related to his in-service right thumb injury. CONCLUSION OF LAW The appellant has not submitted evidence of well grounded claim to reopen his previously denied claim for service connection for residuals of a right thumb disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a), 7104 (b) (West 1991); 38 C.F.R. §§ 3.156(a), 3.303(b,d), 3.304, 3.307, 3.309, 20.1105 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claims because such additional development would be futile. 38 U.S.C.A. § 5197(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As will be explained below, it is found that his claim to reopen is not well grounded. Factual Background The evidence which was of record at the time that the Board considered this case in August 1985 will be briefly summarized. It included the service medical records which indicated a normal entrance examination in August 1952. During active duty, the appellant was treated in November 1955 for pain in the right metacarpophalengeal joint of right thumb from an injury he sustained when his right hand was caught in a cable. The anterior-posterior and lateral x-rays of the right thumb and first metacarpal showed no evidence of fracture or bony abnormalities. A splint was applied to his right thumb for several days. Exercise and hot soaks were recommended. The separation examination of February 1956 showed the appellant's health to be normal and negative for any defects or diagnoses. To support his contention that he had residuals from a right thumb injury after his discharge from service, the appellant submitted several physicians' statements. In February 1979, the physician's statement reported the appellant's history of an in- service injury to the right thumb which resulted in a fracture at the base of the proximal phalanx. He was reported to have fullness of the right thumb for the last fifteen years. The appellant's complaint was increased discomfort in his right thumb for several days duration after he injured his right thumb while changing the tire of his car. By September 1979, the appellant presented with complaints of continued soreness; however, no specific treatment was warranted. The second physician's statement submitted was in August 1983, which reported the same history by the appellant and the July 1983 x-rays which suggested degenerative changes of his right thumb. The examination showed the right thumb joint appeared enlarged as compared to the opposite thumb. The evidence submitted after the August 1985 denial included the appellant's testimony from April 1992. He testified that in June 1956, he was treated by VA in Columbia, South Carolina for a swollen right thumb. He stated that he was told to soak his thumb. Although x-rays were taken, he did not recall the findings. In August 1956, he was treated at the VA outpatient clinic in Brooklyn, New York. In 1957, he was treated at the VAMC, New York, New York. In February 1979, he had re-injured his right thumb while changing the tire on his car. He testified that the only time he had fractured his right thumb was during the service. The orthopedist who treated him in September 1991 told him that the x-rays showed a pulled ligament in the right thumb and remarked that it was surprising he had not developed arthritis after the right thumb injury. He was given prescription medication. He stated that he can only bend the top joint and not the bottom joint of his right thumb. He stated that he had been very upset with the VA for telling him they did not have any records of his injury. He testified that he has no other evidence to submit. Requests for additional VA records from VA Outpatient Clinic in Brooklyn, New York showed that the appellant was treated from January 1956 to December 1956; however, all medical records before 1965 had been destroyed. The VAMC, New York, New York stated that they did not have any record of the appellant being treated at their facility. Analysis We note that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran served 90 days or more during a period of war and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). For a showing of a 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 diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 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) (1994). Also, 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)(1994). After a review of the appellant's entire and complete record, it is the opinion of the undersigned that he has not submitted a well grounded claim to reopen his request for service connection for residuals of a right thumb disability. The evidence submitted prior to the August 1985 showed that during active duty, the appellant's treatment for a right thumb injury included a splint for several days, hot soaks and exercise. The objective evidence showed no evidence of a fracture or bony abnormalities. The assessment was a sprained right thumb. The separation examination of February 1956 reflected a normal medical examination. Although the evidence shows that the appellant was treated at the VA OPC in Brooklyn, New York from January 1956 to December 1956, there is no objective evidence that the treatment was for residuals from his right thumb injury. The only treatment record between 1955 and 1983, when he was first diagnosed with degenerative changes at the metacarpophalangeal joint of his right thumb, were his complaints in February 1979, at which time he was treated for pain from an injury to his right thumb while changing the tire on his car. Although the appellant testified that he continued to have symptomatology from his right thumb injury and was treated within months of his discharge for approximately one year, there was no objective evidence submitted after the August 1985 denial to indicate that his residuals of a right thumb injury began in-service or within one year following his separation. In fact, there was no reference to his being treated for any residuals from his right thumb injury. Moreover, no evidence was submitted that would establish a relationship between his post-service diagnosis of degenerative changes of the metacarpophalangeal joint of his right thumb and the acute injury suffered in-service. The United States Court of Veterans Appeals (Court) has stated that, in order for a claim for service connection to be well grounded, there must be competent medical evidence of the existence of a diagnosis of a current disorder that can be linked to the period of service. Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); and Rabideau v. Derwinski, 2 Vet.App. 141 (1992). In the instant case, as noted above, there is no competent new and material medical evidence that the appellant's residuals of a right thumb disability began in service, were manifested to a compensable degree within one year, or resulted in continual symptomatology. Therefore, the undersigned concludes that the veteran's claim to reopen is not well grounded, and finds that this application to reopen the claim must be dismissed. ORDER The appeal to reopen the claim for service connection for residuals of a right thumb disability is dismissed; and the October 1991 rating decision is vacated. C.P. RUSSELL 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.