Citation Nr: 0716692 Decision Date: 06/06/07 Archive Date: 06/18/07 DOCKET NO. 04-10 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of fractured second metacarpal of the right wrist. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Kelley, Associate Counsel INTRODUCTION The veteran served on active duty from April 1968 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The veteran's residuals of fractured second metacarpal of the right wrist were not noted on the service entrance examination. 2. Clear and unmistakable evidence demonstrates that the veteran's residuals of fractured second metacarpal of the right wrist existed prior to service. 3. The veteran's pre-existing residuals of fractured second metacarpal of the right wrist permanently increased in severity during service. CONCLUSIONS OF LAW 1. The veteran's residuals of fractured second metacarpal of the right wrist clearly and unmistakably existed prior to his entry into military service, and the presumption of soundness at induction is rebutted. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.306(b) (2006). 2. The veteran's preexisting residuals of fractured second metacarpal of the right wrist were aggravated by active service. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306(b) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify 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) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. The appellant was not provided with notice of the type of evidence necessary to establish an effective date or increased rating if service connection is granted on appeal. However, when implementing the Board's grant of service connection, the RO will address any notice defect with respect to an increased rating and effective date. Significantly, the veteran retains the right to appeal the disability rating and effective date assigned by the RO. VA's notice and duty to assist letter satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, as it informed the appellant of what evidence was needed to establish the benefits sought, of what VA would do or had done, and what evidence the appellant should provide, informed the appellant that it was the appellant's responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claim, and asked the appellant to send in any evidence in the appellant's possession that pertains to the claim. The Board is not aware of the existence of additional relevant evidence in connection with the appellant's claim that VA has not sought. VA medical records, VA treatment reports and medical opinion, and personal statements have been associated with the record. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements, and arguments presented by the representative organization. Because the full benefits sought on appeal are being granted by this Board decision, no further notice or assistance to the appellant is required. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with this issue because of the favorable nature of the Board's decision. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection for Right Wrist Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.1(k), 3.303(a) (2006). Service connection may also 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). Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. § 1111. A preexisting injury or disease will be considered to have been aggravated by active wartime service, where there is an increase in disability during such war service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment will not be considered service connected unless the disease is otherwise aggravated by service. 38 C.F.R. § 3.306(b). In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that the correct standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that (1) the appellant's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there was an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. See also VAOPGCPREC 3-2003. Turning to the merits of the claim, the Board finds that the veteran's residuals of fractured second metacarpal of the right wrist were not "noted" on the service entrance examination. The veteran's entrance examination report of March 1968 was silent for any mention of residuals of fractured second metacarpal of the right wrist. Because residuals of fractured second metacarpal of the right wrist were not "noted" at the time of the 1968 service entrance examination, the veteran is entitled to the presumption of sound condition. 38 U.S.C.A. § 1111. Service medical records of April 1968 reveal that the veteran's right hand was swollen, with tenderness over the second and third metacarpals. The x-ray taken at the time showed a fracture of the appellant's 1st metacarpal, which was displaced, but healing from an injury he had sustained two months prior and before his entry into service. Again in April 1968 the veteran was treated for a painful right hand with swelling and tenderness of the second metacarpal that he had injured six months earlier. Based on this evidence, the Board finds that the presumption of sound condition of the residuals of fractured second metacarpal of the right wrist is rebutted by clear and unmistakable (obvious and manifest) evidence that the veteran's residuals of fractured second metacarpal of the right wrist pre-existed service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.303. The next question is whether clear and unmistakable evidence shows that the pre-existing disability of residuals of fractured second metacarpal of the right wrist was not aggravated during service. The appellant's service medical records of January 1970 show that the appellant, "[y]esterday fell onto flexed wrist and hand reinjuring same area. Tenderness along dorsal index metacarpal and painful." Thus, the record shows that, in January of 1970, the appellant fell and reinjured the right hand, which had been previously fractured just prior to his entry into service. The service medical records also show that the metacarpal phalangeal joint had a mildly depressed knuckle due to an old injury. The examiner doubted that there was a new fracture. In February of 1970 the service medical records reported a two year old fracture of the right hand, second metacarpal with pain and swelling upon cold and minimal trauma since then. The x-ray revealed a deformed second metacarpal with a bone spur. In May of 1970 the service medical records reflected that the second metacarpal of the right hand continued to cause pain after use of even short duration. The veteran's separation examination records of March 1971 also reveal a deformity of the right second metacarpal with occasional aches. Further evidence to support the appellant's reinjury is in the November of 1970 service medical records, which report that the veteran was treated for swelling of the right hand metacarpals and a problem with his right index finger. The x-ray report noted a "refracture" of the second metacarpal of the right hand, although this conflicts with the February 1970 examiner's impression that there was no new fracture. While temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened, in this case the veteran did not have temporary or intermittent flare-ups, but rather an actual reinjury of the second metacarpal of the right hand. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Competent medical evidence shows a current disability of residuals of fractured second metacarpal of the right wrist. VA medical records indicate that although the appellant was given a splint for his right hand, the pain and swelling interfered with his job as a truck driver. X-ray study in September 2002 revealed an old healed fracture at the second metacarpal, tiny calcifications and mild degenerative joint disease. The veteran stated in December of 2003 that he could barely use his right hand and he was in constant pain which got worse in cold weather. Based on this evidence, the Board finds that the veteran's residuals of the second metacarpal of the right hand permanently increased in severity in service; that is, there is no clear and unmistakable evidence that the veteran's preexisting right wrist disability was not aggravated in service. For these reasons, the Board finds that the veteran's preexisting residuals of fractured second metacarpal of the right wrist were aggravated by his fall in January of 1970 while in active service. ORDER Service connection for residuals of the fractured second metacarpal of the right wrist is granted. ____________________________________________ A. BRYANT Veterans' Law Judge, Board of Veterans' Appeals Department of Veterans Affairs