Citation Nr: 1317195 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 06-18 040A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for the claimed residuals of a right wrist/hand injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to September 1991. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the RO in St. Louis, Missouri. The control of the case now resides with the RO in Chicago, Illinois. The Board remanded the case to the RO for additional development in November 2012, and as the requested development has been accomplished, it is returned for the purpose of appellate disposition. FINDINGS OF FACT 1. The Veteran is not shown to have any current residuals of a right wrist injury that was sustained during his period of active service. 2. The currently demonstrated old fracture deformity of the right fifth metacarpal is shown as likely as not to be due to an injury that the Veteran reports sustaining while on active duty CONCLUSIONS OF LAW 1. The Veteran does not have a residual right wrist disability due to an injury or disease that was incurred in or aggravated by his period of active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by an old fracture deformity of the right fifth metacarpal is due to an injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in June 2004, prior to the rating decision at issue, which explained how VA could help him obtain evidence in support of his claim. The June 2004 letter also explained what the evidence needed to show in order to establish service connection for a claimed disability. A March 2006 letter explained how VA assigns ratings and effective dates for service connected disabilities. The Veteran's claim was thereafter readjudicated, most recently in March 2013. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, paper and electronic VA treatment records, and the written contentions of the Veteran. The Veteran was afforded a VA examination in connection with his claim. The VA examiner reviewed the claims file and formulated a reasoned opinion as to the etiology of the Veteran's claimed right wrist/hand disorder. This examination took place in substantial compliance with the Board's November 2012 remand. Also in compliance with the remand, more recent VA treatment records were obtained, the Veteran was sent a letter in November 2012 requesting any additional information about treatment for the right wrist condition, and the claim was readjudicated subsequent to the above development having been performed. The Board finds that VA satisfied its obligations pursuant to the VCAA in this case and, additionally, that there was substantial compliance with the November 2012 remand. Service connection The Veteran contends that he injured his right wrist in service and has residual right wrist pain, stiffness, and giving way as a result. Specifically, he claims that he was in a motor vehicle accident in 1990 while deployed to the Persian Gulf region in which he injured his right wrist. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, such as arthritis, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The service treatment records do not show complaints or findings referable to a right wrist disorder. There is documentation showing a May 1988 vehicle accident when the Veteran fell on his right shoulder. There is also documentation of a May 1989 accident when the Veteran injured his neck. There is no mention of a right wrist injury associated with either of these accidents. There also is no documentation of a motor vehicle accident in 1990. At the time of his separation examination in July 1991, the Veteran's upper extremities were assessed as being normal with no scars of the right wrist being documented. At that time, the Veteran reported fracturing his shoulder in 1988 and having back pain since being pushed down some stairs in boot camp. He made no mention of any injury to his right wrist. The Veteran was afforded a VA joints examination in December 2004. At that time, the Veteran reported the history of having been in a motor vehicle accident during the Gulf War when he jammed his fifth metacarpal and injured his right wrist. On examination, the right wrist was noted to be negative. The history and findings were noted to be consistent with entrapment mononeuropathy of the ulnar nerve at the right elbow. The examiner did not have the service treatment records to review at the time of the examination. He opined that, while a right hand fracture was consistent with having a motor vehicle accident, entrapment mononeuropathy would be less likely than not a complication of his military experiences. The VA treatment records show some complaints of right wrist pain, particularly after repetitive use, but do not identify any right wrist condition. In an August 2011 written statement, the Veteran asserted that the vehicle accident when he hurt his wrist occurred "during a combat situation." However, the Veteran's DD Form 214 does not show that he received any combat-related awards or decorations. The Veteran was reexamined by VA in January 2013. At that time, the Veteran reported hurting his wrist in a motorcycle accident in North Carolina around 1989 after being hit by a military vehicle and knocked to the ground. Because his right side hit the ground, the Veteran noted that he might have put out his right hand to break his fall. He was not sure of the specifics since the accident occurred so long ago. His wrist hurt somewhat diffusely after that. He reported being seen and treated for a wrist injury and being given some sort of brace to wear. The Veteran also reported reinjuring his wrist in the Persian Gulf when, after an RPG went off, he was thrown from a truck and hit the ground and hurt his wrist somehow. He was unable to be any more specific. He claimed he did not seek care for his right wrist injury because there was no available medical facility, but used a first aid kit to wrap his wrist in gauze and continued his regular duties, although his wrist hurt constantly after that. He did not recall if he ever sought medical care for his right wrist in service, since he was discharged from service shortly after returning from his deployment. After reviewing the claims file and examining the right wrist, the examiner opined that it was less likely than not that the Veteran's claimed right wrist disorder was due to a disease or injury in service. She noted that the service treatment records did not document any injury to the right wrist including a laceration resulting in a scar. The Veteran was noted to have been seen for multiple other problems even after his deployment, but there was no mention of any issues or injuries to the right wrist or hand. The only fracture mentioned at his exit examination was noted to be that involving the right shoulder. That examination made no mention of a right wrist scar. When the Veteran was seen for the motorcycle accident, there was no mention of any wrist or hand injury even on follow up. The preponderance of the evidence does not show that the Veteran has a current right wrist disorder that is related to an injury or other event of the his period of active service. To the extent that the Veteran now asserts having been injured in a motor vehicle accident during a combat situation in the Persian Gulf, the medical evidence outweighs these lay statements about having an injury to the right wrist or hand during service. Specifically, as noted, there is a no documentation of any right wrist problems during service, despite the Veteran's visits to health care providers for other complaints. Moreover, there was not mention of a right wrist injury or scar on the wrist at the time of the Veteran's separation examination from service when his upper extremities were reported to be normal. While the Veteran now reports having constant pain in the right wrist since the accident during his deployment, these lay assertions are not found to be credible for the purpose of establishing the presence of continuous manifestations referable to the right wrist since service. At time of his separation examination, the only injuries mentioned were a fall in boot camp and a right shoulder fracture from a motor vehicle accident that occurred prior to his deployment. Similarly, the evidence including the Veteran's own statements recorded in connection with medical attention rendered in service shows that the Veteran did not reported that he injured his right wrist in either of the other vehicle accidents during service prior to his deployment. There also was no mention of right wrist pain or findings in any of the treatment records related to either of these incidents. Thus, the Board finds that the Veteran's account of the onset of his claimed right wrist disorder during service is found to be of limited probative value. Moreover, two VA examiners opined that the Veteran's right wrist problems were less likely than not related to service. At the December 2004 examination the examiner noted that there were no x-ray abnormalities of the right wrist and the Veteran's symptoms were more consistent with an entrapment neuropathy of the right elbow, which would less likely than not have been related to any occurrence during service. Since this examiner did not review the claims file, at a second VA examination in January 2013 when the examiner reviewed the claims file and examined the Veteran, she too opined that it was less likely than not that the Veteran had a right wrist disorder was due to his military service, largely due to the lack of in service complaints regarding the right wrist, as addressed hereinabove. The Veteran has not provided any medical evidence of a nexus between any right current wrist disorder and a disease or injury in service. He has offered only his own opinion, which is outweighed by the reasoned opinion of the VA examiner who performed the January 2013 evaluation. Additionally, there is no indication that the Veteran had arthritis of the right wrist within one year of service, and the documentation did not show arthritis of the right wrist even after service including at the December 2004 VA examination which showed a normal right wrist. No right wrist condition was diagnosed at the January 2013 VA examination other than limited motion, which was noted to be an effort dependent parameter. The Board 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 is inapplicable in this matter because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal to this extent is denied. Significantly, the Veteran was noted to have x-ray evidence of an old fracture deformity of the right fifth metacarpal that was noted by the VA examiner in 2004 as being consistent with the Veteran's history of an injury in a motor vehicle accident. To the extent that the Veteran now reports being put in a brace for an injury involving the area of the right fifth metacarpal area during service, the Board finds the evidence to be in relative equipoise in showing that the current old fracture deformity of the right fifth metacarpal is due to an injury that as likely as not was sustained during his period of active service. In resolving all reasonable doubt in the Veteran's favor in this regard, service connection for the residuals of a fracture of the right fifth metacarpal is warranted. ORDER Service connection for the claimed residuals of a right wrist injury is denied. Service connection for the residuals of a fracture of the right fifth metacarpal is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs