Citation Nr: 1313648 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-47 145A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right wrist disability claimed as residuals of right wrist fracture. 2. Entitlement to service connection for a left wrist disability claimed as residuals of left wrist fracture. ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from August 2002 through August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for bilateral wrist disabilities. A timely Notice of Disagreement (NOD) was received from the Veteran in August 2010. After a Statement of the Case (SOC) was issued in November 2010, the Veteran perfected his appeal in December 2010, via VA Form 9 substantive appeal. The substantive appeal reflects that the Veteran requested a video conference hearing in this matter. Such a hearing was scheduled to take place in October 2010 and arrangements were made for the Veteran to provide his testimony from the Muskogee RO. Notices to that effect were mailed to the Veteran's known address in September and October of 2012. The Veteran did not appear at the scheduled hearing. He has not provided any cause for his failure to appear or requested that the hearing be rescheduled. FINDING OF FACT The Veteran's current right and left wrist disorders have not been shown to have been sustained during, or otherwise related to, his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a right wrist fracture have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. The criteria for service connection for residuals of a left wrist fracture have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a pre-rating May 2009 letter notified the Veteran of the information and evidence needed to substantiate his claims for service connection for right and left wrist disabilities. Consistent with Dingess, this letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's January 2010 rating decision. Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, claims submissions, identified and relevant private treatment records, and VA treatment records have been associated with the record. The Veteran was afforded a VA examination of his wrists in July 2009. Subsequently, he was arranged to undergo further VA examination of his wrists in October 2010. The Veteran notified VA that he was unable to report to that examination and asked that it be rescheduled. In accordance with his wish, the examination was rescheduled to take place in February 2012; however, the Veteran did not report to the scheduled examination and has not reported any cause for his failure to appear. In the absence of any cause for the Veteran's failure to report, VA will not reschedule the examination again and the Board will simply proceed with its de novo consideration of this matter based upon the evidence that is currently of record. 38 C.F.R. § 3.655. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Service Connection In his May 2009 claim, the Veteran alleges generally that he is entitled to service connection for residuals of bilateral wrist fractures sustained during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). Here, the preponderance of the evidence does not show that the Veteran's current wrist disorders are related to his active duty service. Accordingly, the Veteran is not entitled to service connection for right or left wrist disabilities. The service treatment records show that the Veteran was treated for right wrist pain, weakness, stiffness, and swelling on one occasion in May 2006. An examination performed at that time revealed tenderness on palpation of the right wrist, full but painful motion, and decreased motor strength. Joint pain was diagnosed. However, the subsequent service treatment records do not reflect further complaints of right wrist symptoms. On the contrary, Post-Deployment Health Assessments completed by the Veteran in July 2006 and May 2007, a Patient History and Review of Symptoms completed in May 2008, and a Report of Medical Assessment completed in July 2008 show that he denied having any swollen, stiff, or painful joints. Further, there is no evidence of any in-service injury to the Veteran's left wrist or evidence in the service records that the Veteran sustained a fracture to either wrist, as suggested by him in his claim. Post-service treatment records do not reflect any treatment for wrist complaints prior to the Veteran's July 2009 VA examination. During the examination, the Veteran reported a history of bilateral wrist fracture that began four years ago. He reported residual symptoms which included weakness, stiffness, swelling, lack of endurance, fatigability, tenderness, and pain. He denied feeling any heat, redness, locking, fatigability, deformity, drainage, subluxation, and dislocation. He stated that he experienced two flare-ups per day in his wrists and that these flare-ups were precipitated by physical activity and alleviated by rest. Functionally, he reported that he had difficulty performing his work as a mechanic and that he experienced problems with turning a wrench or writing for long periods of time. He did not indicate any active in- or out-patient treatment for his wrists and stated that he was treating them with Motrin. During the examination, the Veteran demonstrated weakness and guarding of movement. Nonetheless, there was no sign of edema, instability, abnormal movement, effusion, tenderness, redness, heat, deformity, malalignment, drainage, or subluxation in either wrist. The Veteran was able to produce bilateral wrist motion which included dorsiflexion to 60 degrees, palmar flexion to 80 degrees, radial deviation to 15 degrees, and ulnar deviation to 30 degrees. Pain was reported at the endpoint of all motion in both wrists. Although repetitive motion of both wrists was productive of pain, repetition did not result in any further loss of motion or function. X-rays of both wrists were within normal limits. The examiner diagnosed status post bilateral fractured wrist; however, an opinion as to whether the condition in either wrist was incurred during or related to the Veteran's active duty service was not provided. Subsequent treatment records show that the Veteran received treatment for his left wrist for the first time in June 2011. Significantly, during VA treatment on that time he reported that he had fallen the previous Friday, struck his left wrist, and felt an ensuing pop in the wrist. He complained of subsequent pain and weakened grip. X-rays of the left wrist did not reveal any evidence of fracture, dislocation, or lesions. Also, no significant degenerative changes were seen. The Veteran was privately followed for his left wrist by Dr. M.D. During his initial July 2011 visit, the Veteran reported again that, the previous month, he slipped and impacted his left wrist and that he experienced marked pain since that event. An examination at that time revealed swelling and diffuse tenderness over the left wrist. X-rays indicated some cystic changes. An MRI confirmed the presence of a ganglion cyst. During an August 2011 follow-up visit with Dr. M.D., the Veteran queried whether the cyst in his left wrist "could have been there a long time." Dr. M.D. conjectured that it could very well have been the source of symptoms from his reported in-service injury, but ultimately expressed that the answer to that question is "indeterminate." As noted above, VA has sought to arrange the Veteran to undergo a new VA examination of his wrists to determine the etiology of any diagnosed disorders. Although, at the Veteran's request, VA arranged for him to undergo a VA examination in February 2012, the Veteran did not appear for the examination. To date, he has not provided any cause for his failure to appear or asked that the examination be rescheduled again. Under 38 C.F.R. § 3.655, the Board will consider the Veteran's appeal based upon the evidence currently of record. Overall, the weight of the evidence does not show a relationship between a current right wrist disability and his active duty service. In that regard, the service treatment records do not indicate any ongoing complaints, treatment, or diagnosis related to the right wrist after his one-time in-service treatment in May 2006. Notably, the remainder of the Veteran's service treatment records shows that he denied any further right wrist complaints. Although the Veteran endorsed pain and demonstrated decreased motion in his right wrist during his July 2009 VA examination, X-ray examination at that time was normal. Further, post-service treatment records do not indicate any treatment related specifically to the right wrist. Regarding the Veteran's left wrist, the Board notes that there is no indication in the service treatment records of any in-service injuries, treatment, or diagnoses related to the left wrist. While the Veteran's reports that he fractured his wrist during service, such history is not supported by contemporaneous service records which do not show any treatment for a fracture of either wrist or complaints pertaining to the left wrist. As shown above, the Veteran did not report left wrist complaints when asked about any joint complaints in July 2006, May 2007, May 2008, and July 2008. Similar to his right wrist, the July 2009 VA examination contained normal radiological findings. Although the subsequent treatment records show that the Veteran sustained a ganglion cyst in his left wrist, the evidence indicates that symptoms associated with the cyst did not occur until after the Veteran's reported June 2011 non-service-related fall. In that vein, there is no opinion in the record that the Veteran's cyst was either sustained during, or is otherwise related to, his active duty service. As noted above, the Veteran apparently solicited an opinion from Dr. M.D. as to whether his left wrist ganglion cyst was related to his active duty service. In assessing the probative worth of Dr. M.D.'s August 2011 opinion, the Board points out that a medical opinion that is based on speculation, without supporting clinical evidence, does not provide the required degree of medical certainty and is of no probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1993); Reonal v. Brown, 5 Vet. App. 458, 460 (1993). In that vein, medical opinions that are equivocal in nature, such as those expressed in speculative language (i.e., "could have caused", etc.) do not provide the degree of certainty required for medical nexus evidence. Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Here, where Dr. M.D. acknowledges that a determination as to the Veteran's question is "indeterminate", his August 2011 opinion falls well short of the medical certainty necessary to be afforded any probative weight. Even if the Board were inclined to find that Dr. M.D.'s August 2011 opinion was definitive enough, it would still find that the opinion is not entitled to probative weight because it is based upon an incomplete and inaccurate understanding of the Veteran's medical history. The Board points out again that the service treatment records do not show any in-service complaints, treatment, or diagnoses relevant to the left wrist. Thus, to the extent that Dr. M.D. was asked to opine as to the origin of the cyst in the Veteran's left wrist, any conclusion by him that it was "the source of symptoms from [the Veteran's] in-service injury" is not based upon an accurate factual foundation; namely, that the Veteran had a left wrist injury during service. Also for these reasons, Dr. M.D.'s August 2011 opinion would not be entitled to probative weight. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that he probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches; as true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators); see also, Robinette v. Brown, 8 Vet. App. 69 (1995) (stating that a layman's account of what a physician purportedly said, filtered through the layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence), Warren v. Brown, 6 Vet. App. 4 (1993) (holding that hearsay medical evidence does not constitute competent medical evidence). The only other evidence in the record concerning the etiology of the Veteran's wrist disorders are the Veteran's own general statements that they are related in some way to his active duty service. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In that regard, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder). In view of the foregoing law, the Veteran would be competent to provide probative statements as to when symptoms in his wrists began and how long they have continued. Nonetheless, the presence of pain and decreased motion in the Veteran's wrists and a ganglion cyst in the left wrist may be explained by any one of numerous potential causes. This fact would appear to be complicated further by the fact that the Veteran injured his left wrist after a non-service-related fall in June 2011. In view of these complicating factors, and as the Veteran is not competent to render an opinion as to the complex question of the cause of his wrist disorders, the Board finds that the Veteran's general assertions that his wrist problems are related to his active duty service are entitled to very little probative value. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. To the extent that the Veteran may be contending that his current right and left wrist conditions were initially manifested during service and have continued since service, the Board does not find his contentions credible. In this regard, there is only one treatment record showing right wrist complaints. In contrast, the Veteran denied any joint related complaints following his right wrist complaints. Moreover, no disability of the wrists was noted upon service discharge. Accordingly, the Board finds that any assertion that his wrist symptoms began during service and have continued since service is not credible and therefore lacks probative value. Overall, the preponderance of the evidence is against the Veteran's claim of service connection for residuals of right wrist fracture and residuals of left wrist fracture, to include cyst. Accordingly, these claims must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for residuals of right wrist fracture is denied. Entitlement to service connection for residuals of left wrist fracture, to include cyst, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs