Citation Nr: 1126902 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 11-03 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a bilateral wrist disorder. REPRESENTATION Appellant represented by: Colleen D. Bratkovich, Attorney at Law ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from April 7, 1969, to April 23, 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania denied service connection for a bilateral wrist disorder. FINDINGS OF FACT 1. Clear and unmistakable evidence shows both that the Veteran's right wrist fracture preexisted service and that this condition did not undergo an increase in severity during service that could be identified as an advancement beyond normal progression. 2. At no time during the appeal period has the Veteran been diagnosed with a left wrist disorder. CONCLUSION OF LAW A bilateral wrist disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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; and (3) that the claimant is expected to provide. VCAA 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). Here, a pre-decisional notice letter in January 2010 complied with VA's duty to notify the Veteran with regards to the service connection claim on appeal. Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. It also in particular notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs) and post-service medical records. VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records, which have not been obtained and associated with the claims folder. The Board finds that a medical opinion on the question of service connection for a bilateral wrist disorder is not required because opinions are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as described in detail below, there is insufficient evidence establishing that the Veteran had an injury in service and that he has a current bilateral wrist disorder that is related to his military service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Consequently, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (1995). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Prior provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence showed that a injury or disease existed prior to service in order to rebut the presumption of soundness. However, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C.A. § 1111. See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261 (2003), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), VAOPGCPREC 3-2003 (July 16, 2003). Pursuant to these developments, it is now clear that in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304 (b) (2010). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). Before these above cited precedent opinions, VAOPGCPREC 3- 2003, and the recent regulatory amendment, VA had the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre-existed service. If VA met this burden, however, it then had the burden to rebut the presumption by a preponderance of the evidence (a lower standard) that the preexisting disorder was not aggravated by service. Now, VA must also show by clear and unmistakable evidence that the preexisting disorder was not aggravated during service (a higher standard). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. 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 (West 2002); 38 C.F.R. § 3.306(b) (2010); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran and his wife contend that a preexisting right wrist injury was aggravated by his basic training. The Board observes that the Veteran has been diagnosed with pre-senile frontal lobe dementia. Consequently, the contentions set forth in this appeal are those reported by his wife. The Veteran's STRs include a pre-induction examination in January 1969. The Board observes that the accompanying report of medical history appears to have been altered to indicate reporting of a fractured right wrist. As discussed herein, the Veteran fractured his right wrist after the pre-induction examination. In April 1969, the Veteran complained of fracturing his right wrist. A Medical Board report in April 1969 reveals that the Veteran reported fracturing his right wrist in a fall in February 1969. He reported having his wrist in a cast until March 1969. X-rays revealed that the fracture was still healing. The Medical Board found that the Veteran's right wrist fracture preexisted service and was not aggravated by his service. The Veteran was subsequently discharged from service. In light of the Veteran's right wrist fracture occurring in February 1969, which followed the pre-induction examination, the Board concludes that the Veteran's pre-induction medical history was modified to reflect the report of a fractured right wrist. According to post-service medical records, the Veteran complained of right wrist pain in February 2010. X-rays revealed an unremarkable left wrist and remote fractures of the right wrist. A letter from the Veteran's VA physician dated in February 2010 shows that the remote fractures of the right wrist were consistent with the reported fractures, which occurred during military training. Based on a review of the evidence, the Board finds that service connection for a bilateral wrist disorder is not warranted. The Board first concludes that clear and unmistakable evidence rebuts the presumption of soundness with regards to the Veteran's right wrist at his entrance to his active duty. Although the pre-induction examination showed clinically normal upper extremities, the evidence indicates that the Veteran's right wrist was fractured after the pre-induction examination. The Veteran's STRs clearly and unmistakably show that he reported fracturing his right wrist prior to his entrance to active duty. Therefore, the remaining question with regards to the right wrist is whether there is clear and unmistakable evidence that the Veteran's preexisting fracture was aggravated beyond its natural progression during service. Based on a review of the evidence, the Board concludes that there was no aggravation of the preexisting fracture. The contemporaneous Medical Board in April 1969 found no aggravation. There is no indication in the Veteran's STRs that his basic training aggravated the preexisting fracture. Thus, the Board finds that the Veteran's preexisting right wrist injury clearly and unmistakably was not aggravated by his military service. Additionally, his STRs do not show any in-service incurrence or aggravation of an injury or disease to his wrists. Therefore, the Board finds that the evidence does not support a finding of an injury or disease to his wrists actually occurred. In reaching this conclusion, the Board acknowledges the February 2010 letter from the Veteran's physician indicating that the Veteran's x-rays showing old fractures are consistent with the fractures reported to have occurred during military training. However, as discussed above, the evidence shows that the right wrist fracture preexisted service and was not incurred in service. Thus, the February 2010 opinion lacks probative value. Moreover, there is no nexus evidence to support a finding of service connection. No medical professional has provided any opinion that the Veteran has a bilateral wrist disorder that is related to his military service or that his preexisting right wrist fracture was aggravated by his service. Furthermore, the evidence does not actually show any left wrist disorder. In this regard, the Board observes that the Veteran's wife has indicated that the left wrist is not an issue. See January 2011 substantive appeal. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In other words, the evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, there is no competent medical evidence reflective of a left wrist disorder at any time during the current appeal. The Board acknowledges the Veteran's and his wife's beliefs that he has a bilateral wrist disorder that is related to his military service. However, there is no evidence of record showing that the Veteran and his wife have the specialized medical education, training, and experience necessary to render competent medical opinion as to diagnosis and etiology of a disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a) (1) (2010). Accordingly, and based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral wrist disorder. There is no indication that the Veteran's preexisting right wrist fracture was aggravated by his service; and, at no time since the Veteran filed his claim for service connection for a bilateral wrist disorder in November 2009 has any chronic left wrist disorder been diagnosed. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in which the Court held that, in the absence of proof of a present disability, there can be no valid claim). See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a bilateral wrist disorder is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2010). ORDER Entitlement to service connection for a bilateral wrist disorder. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs