Citation Nr: 1313931 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 10-37 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a right wrist disability, claimed as secondary to a service-connected gunshot wound to the left foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to July 1969. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran testified at May 2011 Travel Board hearing in Des Moines, Iowa. The hearing transcript has been associated with the record. FINDINGS OF FACT 1. The Veteran has currently diagnosed degenerative joint disease in the right wrist. 2. Degenerative joint disease of the right wrist is aggravated by a service-connected gunshot wound to the left foot. CONCLUSION OF LAW The criteria for service connection for right wrist degenerative joint disease, secondary to a service-connected gunshot wound to the left foot, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). In the present case, the Board is granting the claim for service connection for a right wrist disability. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of 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. 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. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b) which is applicable to this appeal, the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis The Veteran contends that he has used a cane since service to help stabilize his service-connected left foot disability, that the use the cane has caused or aggravated a claimed right wrist disability, and that the right wrist disability is, therefore, secondary to the service-connected left foot. Service connection has been in effect for a gunshot wound to the left metatarsal and cuboid with osteomyelitis and limitation of function since the Veteran's separation from service in July 1969. The left foot gunshot wound was initially rated as 30 percent disabling, and the Veteran has been in receipt of a 40 percent rating for the left foot disability since September 1974. The Board finds that the weight of the evidence, lay and medical, shows that currently diagnosed right wrist degenerative joint disease is aggravated by a service-connected gunshot wound to the left foot. The Veteran has degenerative joint disease in the right wrist. For instance, VA treatment records dated in October 2008 reflect a provisional diagnosis of right wrist degenerative joint disease. While a June 2006 VA examiner stated that x-rays of the right wrist were unremarkable; January 2009 private x-ray of the right wrist revealed mild degenerative changes in the distal radioulnar joint bilaterally with ulnar minus variant. Hence, there is evidence of a current disability. During a May 2011 Travel Board hearing, the Veteran and his representative contend that service connection for a right wrist disability is warranted as secondary to a service-connected left foot disability. This is the only theory of entitlement presented by the Veteran and his representative, and the Veteran has testified that the onset of his disability occurred post-service in 1992. Additionally, because the Board is granting the claim for service connection on a secondary basis, the Board finds that consideration of a claim for service connection on a direct basis is not necessary. During the May 2011 Board hearing, the Veteran testified that he has used a cane since service, that he held the cane in the right hand, and that more recently, due to his right wrist disability, he switched to a left-handed cane and began to notice similarly symptoms in the left hand. He testified that he initially sought treatment for the right wrist in 1992. He stated that he went to the doctor due to an unrelated back injury and reported that his ulnar joint was acting up. The Veteran did not describe any traumatic injury to the right wrist during the Board hearing, and he denied having any other history of injury to the right wrist. He noted that his medical records had identified a prior right wrist fracture, but indicated that this was a transcription error, and reported that he had, instead, fractured the left wrist on two occasions. While the Veteran denied a history of right wrist injury, private treatment records show that the Veteran was first seen for right wrist complaints in April 1992 after a fall in which he landed on the wrist. An August 1992 treatment report states that in April 1992, the Veteran's leg gave out on him and reported falling onto outstretched hands. The examining physician stated that he probably fell into hyperextension and deformity of the wrist, and since that time had pain in the distal ulna and the dorsum of the hand. The Veteran's hand was placed in a splint. The examining physician stated that June 1992 x-rays did not demonstrate more than a suggestion of some distal radial ulnar joint changes, but he was suspicious that the Veteran had ruptured his triangular cartilage. In light of the inconsistencies in the Veteran's testimony with findings from an August 1992 private treatment report, contemporaneous with the onset of the Veteran's right wrist disability, the Board finds that the Veteran's more recent lay testimony is not entirely credible, and the Board finds that the Veteran had the onset of right wrist complaints in 1992 due to a post-service injury to that wrist. The Board notes that the August 1992 treatment report shows that the Veteran's fall was due to his leg giving way, that the Veteran has a diagnosed nonservice-connected left knee disability in addition to his service-connected left foot disability, and there is no indication from the record that the April 1992 fall was caused by the left foot disability. A second evaluation of the right wrist completed a few days later in August 1992. X-rays and a CT scan revealed degenerative changes of the distal radial ulnar joint. The Veteran was diagnosed with degenerative arthritis, right distal radial ulnar joint with instability. The examining physician noted a history of previous injury to the wrist, specifically two fractures to the wrist at age 14 and 15. The Board finds, however, that the Veteran was credible in reporting that he did not fracture his right wrist, and that instead, he had two fractures to his left wrist. In that regard, service treatment records noted a pre-service history of fracture to the left wrist, and January 2009 private x-rays show that the Veteran had no evidence of fracture or dislocation in the right wrist, but noted a history of fracture to the left wrist. While the Veteran has not provided credible evidence as to a history of injury to the right wrist, the Board finds, nonetheless, that the Veteran has provided credible lay evidence showing that he has required the use of a cane for ambulation due to a service-connected gunshot wound to the left foot. In that regard, service treatment records show that the Veteran walked with a limp favoring the left foot, that he could not put full weight on the left foot, and a cane was required for walking. Post-service VA examinations show that the Veteran continued to have difficulty with ambulation due to the service-connected left foot. A December 1969 VA examination noted that the Veteran had poor equilibrium, walked with a limp, and wore a brace on the foot. A January 1971 VA examination noted that the foot was weak and the Veteran had to wear support on the foot, and that he walked with a limp. November 1974 private treatment report and January 1975 VA examination show that the Veteran had difficulty standing on the left foot. Indeed, the Veteran's 40 percent disability rating, effective September 1974, is consistent with a rating for loss of use of the foot. The Board finds that the Veteran's report of using a cane is consistent with findings in service treatment records and post-service treatment records indicating significant history of difficulty with ambulation due to the left foot and is consistent with the severity of the Veteran's left foot disability. The Board finds, therefore, that the Veteran has credibly identified the use of a right-handed cane due to a service-connected gunshot wound to the left foot. The Board further finds that the weight of the evidence demonstrates that currently diagnosed right wrist degenerative joint disease is aggravated by the use of a cane due to a service-connected gunshot wound to the left foot. The Veteran underwent a VA examination in June 2008; however, the VA examiner stated that after taking a history from the Veteran, performing a physical examination, and reviewing the medical records, with consideration of the multiple pain behaviors exhibited by the Veteran during examination, he could not resolve the issue of relationship between the service-connected left foot condition and the right wrist without resorting to mere speculation. As the opinion provided was ultimately speculative, the Board finds that it is of no probative value. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative.). Conversely, the Veteran has provided two private medical opinions which relate the currently diagnosed right wrist disability to a service-connected gunshot wound to the left foot. In a July 2009 statement, Dr. M. reported that he had been treating the Veteran for back, neck, and extremity pain for several years. He noted that while the Veteran had previously fractured the left wrist, most of his pain and dysfunction had been in the right wrist until more recently. He stated that in the past few weeks, the Veteran began to have pain and stiffness in the left wrist, like the right. Dr. M. did not provide an opinion with regard to the etiology of a right wrist disability in the July 2009 statement. In a subsequent April 2010 statement, Dr. M. opined that chronic wrist pain secondary to arthritic change was more likely than not related to a gunshot wound to the left foot, leading to cane use which injured the wrist. He stated that the opinion was based on x-rays of the wrist demonstrating degenerative changes, physical examination demonstrating arthritis changes, as well as frequent subluxation of the carpal bones. He, therefore, concluded that cane use led to injury of the wrist. An April 2010 opinion from the Veteran's chiropractor, Dr. R., shows that disability of the right radioulnar joint is more likely than not related to a gunshot wound to the left foot. She stated that while the initial cause of degeneration in the wrist is uncertain, the Veteran was shot in the foot and was shown how to use a cane several years ago, and he continued to use a cane for a very long time. Dr. R. opined, therefore, that it was likely that this repetitive use and unnatural load on the joint would have contributed to the problem with the wrist. Neither Dr. M. or Dr. R. had the opportunity to review the claims file, nor did they note the occurrence of a prior 1992 traumatic injury to the right wrist; however, the Board finds that, as the Veteran's treating physician, Dr. M is familiar with the Veteran's more recent medical history and current presentation, and a January 2010 evaluation of the wrist, completed by Dr. R. is of record. The Board finds that both Dr. M. and Dr. R. correctly noted the Veteran's history of using a cane for the left foot, and essentially opined, based on the Veteran's current presentation, that his right wrist disability was aggravated by the cane use. Because the Veteran is claiming service connection for a right wrist disability on a secondary basis, the Board finds that the private medical opinions from Dr. M. and Dr. R. were rendered based upon an accurate factual premise with regard to the long history of right-handed cane use, and the Veteran's current presentation as shown by x-rays and examinations of the wrist. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, the Board finds that these opinions are probative. Moreover, Dr. R. noted, in her opinion that while the initial cause of degeneration in the wrist is uncertain, the cane use contributed to the right wrist disability. Because Dr. M. and Dr. R. both agree that at least some degree of disability in the right wrist is related to the use of a cane due to a service-connected gunshot wound to the left foot, the Board finds, resolving the benefit of the doubt in the Veteran's favor, that the April 2010 opinions provide probative evidence which shows that currently diagnosed right wrist degenerative joint disease was aggravated by a service-connected gunshot wound to the left foot. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for right wrist degenerative joint disease is warranted on a secondary basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for right wrist degenerative joint disease, secondary to a service-connected gunshot wound to the left foot, is granted. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs