Citation Nr: 1237463 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-34 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a left wrist condition. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty for training from May 2002 to November 2002, and served on active duty from September 2004 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for a left wrist condition. A Travel Board hearing was held in November 2011 with the Veteran in Lincoln, Nebraska, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND 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. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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) (2012). Active military, naval, or air service includes any period of active duty for training (ADT) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (IADT) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012). ADT includes full-time duty performed for training purposes by members of the Reserves and National Guard of any state. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c)(1), (3) (2009). Presumptive periods do not apply to ADT or IADT. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for a disability resulting from a disease or injury incurred or aggravated while performing ADT, or from an injury incurred or aggravated while performing IADT. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). The Veteran underwent an examination in January 2002. No relevant abnormalities were noted. However, she was seen for left wrist pain in July 2002, during her period of ADT. She was diagnosed with a left wrist ganglion cyst and placed on a limited physical profile. Additional records dated October 2003 show the Veteran complained of left wrist soreness with overuse. She reportedly underwent surgery to remove the cyst in the spring of 2004. The remainder of the Veteran's service treatment records do not reflect any further complaints associated with the left wrist. The Veteran submitted a May 2010 letter from her private physician, which noted the removal of the cyst in 2004. She further indicated that the Veteran continued to have pain and weakness in the wrist. A March 2010 general VA examination had diagnosed left wrist tendonitis. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service connection claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. As discussed below, the evidence does not satisfy the standards of McLendon, as there is no indication of current symptoms or a relationship between a claimed disability and service. Furthermore, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held in Waters v. Shinseki, 601 F.3d 1274 (Fed Cir. 2010), that each element of 38 U.S.C.A. § 5103A(d)(2) establishes a different evidentiary standard. The Federal Circuit stated that the Board's "finding of a lack of 'competent' evidence appears to apply the standard of subsection A which deals with the veteran's current disability, rather than the apparently less-demanding standard in subsection B of 'evidence' that 'indicates' that the veteran's disability 'may be associated' with the veteran's active military service." Id. at 1277. The Federal Circuit maintained this holding in Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010), stating that medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service. In light of the evidence in this case, the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran's current left wrist condition. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an appropriate VA examination for an opinion as to whether there is at least a 50 percent probability or greater that she has a current left wrist condition that is etiologically related to service. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Following a review of the claims file and an examination of the Veteran, the examiner should answer the following questions: a) What are the currently diagnosed left wrist conditions? b) For all diagnosed left wrist conditions, are they at least as likely as not etiologically related to service, to include the Veteran's diagnosed ganglion cyst and subsequent removal? Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2011). 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2011).