Citation Nr: 1319007 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-01 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left wrist disorder. 2. Entitlement to service connection for a right wrist disorder. 3. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1992 to September 2007. These matters come before the Board of Veterans' Appeals (the Board) on appeal of an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in part, denied the Veteran's service-connection claims for allergic rhinitis, a right wrist disorder, a left wrist disorder, and hypertension. In September 2012, the Board remanded the matters on appeal to the RO (via the Appeals Management Center (AMC)) for additional development. The Board instructed that the Veteran be provided with new VA examinations to determine the nature and etiology of his claimed disorders. Based on the findings from a January 2013 VA respiratory examination, in an April 2013 rating decision the RO granted service connection for allergic rhinitis and assigned a noncompensable evaluation from December 2007 to January 17, 2013, and a 10 percent evaluation thereafter. As this grant of service connection represents a full grant of benefits on appeal with respect to that issue and the Veteran has not disagreed with the effective date or disability evaluation assigned, it is no longer in appellate status or before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The evidence of record does not demonstrate that a relationship exists between the Veteran's current right wrist disorder and his period of active duty service. 2. The evidence of record does not demonstrate that a relationship exists between the Veteran's current left wrist disorder and his period of active duty service. 3. The weight of the evidence shows that the Veteran's current diagnosis of hypertension is related to the elevated blood pressure readings first recorded during his period of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right wrist disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(2012). 2. The criteria for entitlement to service connection for a left wrist disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303 (2012). 3. The criteria for service connection for hypertension have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Stegall Concern's As was alluded to in the Introduction, the Board remanded the Veteran's service connection claims for hypertension, right wrist disorder and left wrist disorder in September 2012 for additional evidentiary development. In particular, the Board instructed the RO (via the AMC) to schedule the Veteran for a VA examination to determine the nature and etiology of his claimed hypertension and bilateral wrist disorder. Thereafter, the AMC was instructed to readjudicate the Veteran's claims in a supplemental statement of the case (SSOC). Notably, the Veteran was provided with VA hypertension and joint examinations in January 2013. In those examination reports, the examiners recorded the Veteran's reported history as well as summarized the pertinent findings in the service treatment records, and recorded the findings from clinical evaluation. The examiners provided medical opinions regarding the etiology of the diagnosed disorders. The AMC then readjudicated the Veteran's claims in an April 2013 SSOC. Thus, the Board's prior remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). 2. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Given the favorable action taken with respect to the issue that is decided herein, the Board finds that no further notice or assistance is warranted with regard to the Veteran's claim for service connection for hypertension. As to the remaining claims, the RO provided the Veteran with adequate notice under the VCAA and Dingess specific to his service-connection claims in a letter dated in December 2007. Subsequently, in April 2008, the RO adjudicated the Veteran's claims in the first instance, and the Veteran filed a timely appeal as to the RO's determination. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his right wrist disorder and left wrist disorder service connection claims. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, his relevant post-service VA and private treatment records, and his lay statements of observation and argument have been obtained. The Veteran has not identified any outstanding evidence, to include any other medical records that are available and could be obtained to substantiate his claims. The Veteran was previously provided with VA joints examination in June 2009 and February 2011. At the time of the June 2009 VA examination, the Veteran's claims folder was unavailable. The examiner recorded the findings from clinical evaluation but the examiner did not provide a medical nexus opinion. The Veteran underwent another examination of his wrists in February 2011, and the examiner offered a supplemental opinion in March 2011 after a review of the record. However, the Board previously found that the 2011 examination report with addendum was inadequate because the results of any clinical or radiological examination were not associated with the examination report or addendum. Pursuant to the Board's September 2012 remand directive, the Veteran was afforded another VA wrist examination in January 2013. That examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate examination, and rendered appropriate diagnoses consistent with the other probative evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claims has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issues on appeal were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103 (2012). He has retained the services of a representative, and he declined an opportunity to testify at a personal hearing before a Veterans Law Judge. Therefore, the duties to notify and assist have been met. 3. Service Connection 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 may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including hypertension), although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Right and Left Wrist Disorders The Veteran claims entitlement to service connection for right and left wrist disorders. He contends that his current right and left wrist disorders are related to his period of service. The Veteran reports that he injured his left wrist when he fell on his wrist while playing sports and he was treated for a wrist sprain. He further reports that he injured his right wrist when he fell and landed with his right arm extended while playing basketball, and he was treated for a fracture with a cast for eight weeks followed by a brace. The Veteran asserts that he has continued to experience pain and weakness in both of his wrists since his period of service. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden v. Principi, 381 F.3d at 1167. With respect to element (1), it is unclear from the current medical evidence whether the Veteran has current disabilities involving his right and left wrists. A June 2009 VA examination report showed that the Veteran complained of pain and weakness in his right wrist, and clinical evaluation revealed a slight decrease in range of motion but no other abnormalities. The June 2009 VA examiner diagnosed a healed right wrist fracture. A January 2013 VA examination report showed that the Veteran complained of pain and weakness in both wrists, and clinical evaluation revealed decreased range of motion with pain and swelling in both wrists. X-ray film revealed no abnormalities in either wrist. The January 2013 VA examiner noted the previous diagnoses of right wrist fracture in 1998 to 1999 (despite the lack of clinical diagnosis in the service treatment records) and left wrist sprain in 1992 to 1994. Although the examiner did not specifically identify the nature of the Veteran's current wrist disorder, the examiner provided medical nexus opinions on the etiology of the Veteran's right and left wrist conditions manifested by his subjective complaints of pain and objective findings of reduced range of motion. Given the findings of decreased range of motion as well as the January 2013 VA examiner's nexus opinions on right and left wrist conditions based on those subjective and objective findings, the Board resolves any doubt in the Veteran's favor and finds that element (1), current disability, is satisfied for both the right and left wrist claims. With respect to element (2), in-service disease or injury, the Veteran's service treatment records do showed that he sought treatment for left wrist sprain in March 1999. The treatment records show that the Veteran complained of pain in the ulnar styloid area after he fell on an outstretched left hand. X-ray film was negative for abnormalities. The Veteran was treated with a wrist splint. None of the subsequent service treatment record show that the Veteran complained of, sought treatment for, or was diagnosed with any left wrist problems. Later service treatment records showed that the Veteran complained of right wrist pain. A July 2000 medical history note showed that the Veteran complained of right wrist pain since March 1999. He was treated with a splint for two weeks followed by flexion and extension exercises when the splint was removal. A September 2007 treatment note shows that the Veteran complained of recurrent right wrist pain and he wanted to ensure that there was a record of his complaints for VA benefit purpose. The report of a September 2007 examination report at separation showed a normal musculoskeletal evaluation. The Veteran's service treatment records reflected that he injured both of his wrists during his period of service, despite the lack of specific treatment for right wrist injury. Accordingly, the Board finds that element (2), in-service injury, is satisfied for both claims. With respect to element (3), nexus or relationship, there is only one adequate medical opinion of record addressing the etiology of the Veteran's current right and left wrist disorders. After review of the entire record, and upon examination of the Veteran, the January 2013 VA examiner determined that it was "less likely as not" that the Veteran's current right and left wrist disorders were incurred in or otherwise related to service in the military. By way of a rationale, with respect to the Veteran's right wrist, the VA examiner noted that the Veteran complained of right wrist sprain since March 1999, but there was no progress note detailing an injury, diagnosis or treatment, and there was no complaint of right wrist problems on the Veteran's separation examination. Moreover, the examiner noted that the current x-ray film was negative for abnormalities and there was no medical evidence after the Veteran's separation from service in 2007. Regarding the Veteran's left wrist, the VA examiner noted that although there was in-service treatment for injury from falling on an outstretched left hand, the x-ray evidence was negative for abnormalities and no subsequent complaints for left wrist problems during his period of service or at the time of his separation from service. See the January 2013 VA examiner's report, pages 8 and 9. The Board finds the January 2013 report to be probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). No medical opinion of record is contrary to the findings of the January 2013 VA examiner. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his service-connection claims, and against the reasoned conclusions of the VA examiner; he has not done so. See 38 U.S.C.A. § 5107(a) (it is a claimant's responsibility to support a claim for VA benefits). As noted above in the legal criteria above, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third service-connection element for certain chronic diseases, such as arthritis, is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013);see also Savage, 10 Vet. App. at 495-97. However, here there is no evidence of arthritis or any other chronic disease listed under 38 C.F.R. § 3.309(a). The Board acknowledges the Veteran's statements that he has experienced right and left wrist pain since his period of service. He complained of pain and weakness in both wrists as a result of the injuries he sustained in service. Indeed, the Veteran is competent to describe his in-service experiences and observations of pain symptomatology, and his service treatment records confirm that he sought treatment for right and left wrist pain, albeit none of the subsequent records document any left wrist complaints after March 1999 until the February 2011 VA examination. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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) (citing that "although interest may affect the credibility of testimony, it does not affect competency to testify"). The Court of Appeals for Veterans Claims has made clear that the Board cannot determine that competent lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). With respect to his left wrist, the Veteran has been inconsistent with his reports of symptoms. At time of his separation, he indicated that he had or currently experienced left wrist problems as reflected in his September 2007 examination. However, there are no subsequent post-service treatment records for his alleged left wrist problems, despite the Veteran's claimed ongoing problems. The Veteran has only reported right wrist problems when he attended his VA examinations in June 2009, and he only later complained of left wrist problems at the February 2011 and January 2013 VA examinations. The Veteran's reports of the continuity of his left wrist problems have not always been consistent, especially at the time of his separation from service. The Board does not find the Veteran's assertions of continuity carry probative value given the inconsistency of his statement at the time of his separation from service in September 2007. Regarding his right wrist, the Board notes that the Veteran has also inconsistently reported his symptoms. At the time of his separation, he indicated that he had or currently experienced right wrist problems as reflected in his September 2007 examination. However, he sought to ensure that there was a medical record of his right wrist problems shortly after his separation examination in a later September 2007 service treatment. At that time, the clinical evaluation did not reveal abnormal findings involving the Veteran's right wrist. Moreover, the Veteran denied seeking any medical treatment in the year following his separation from service and prior to the June 2009 VA examination, despite the Veteran's claimed ongoing right wrist problems. In light of the Veteran's inconsistent reports of medical history and potential bias, the Board finds the Veteran's competent assertions of continuity of right and left wrist pain symptoms from service to the present day not credible. See Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Accordingly, element (3), a nexus or relationship between the current diagnosed disorder and injury in service, has not been satisfied, and the Veteran's service-connection claims both fail on that basis. The benefit of the doubt rule is not for application because the evidence is not in relative equipoise. Hypertension The Veteran seeks entitlement to service connection for hypertension. He asserts that his current diagnosis of hypertension first manifested during his period of service. Again, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden v. Principi, 381 F.3d at 1167. For VA purposes, "hypertension" means diastolic blood pressure that is predominantly 90 millimeters (mm) or greater, and isolated systolic hypertension means systolic blood pressure that is predominantly 160 mm or greater with a diastolic blood pressure of fewer than 90 mm. To support a diagnosis of hypertension, the blood pressure readings must be taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101(Note 1); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In this case, both the June 2009 and February 2011 VA examination reports reflect a current diagnosis of hypertension. The June 2009 VA examiner noted the Veteran's blood pressure readings (BPR) on three consecutive days were as follows: 144/90; 152/92; and 140/89. The June 2009 VA examiner diagnosed the Veteran with hypertension based on those clinical findings, despite not technically meeting VA requirements for hypertension. The February 2011 VA examination report showed that the examiner confirmed a diagnosis of hypertension based on the previous June 2009 findings as well as current BPRs of 150/94, 152/90, and160/92. The Board acknowledges that the examiner from a January 2013 VA examination only diagnosed the Veteran with elevated blood pressure, despite the BPR of 152/102 on exam and the previous diagnosis of hypertension shown in the earlier VA examination reports. It does not appear that the January 2013 VA examiner reviewed the findings from the previous VA examinations in conjunction with the 2013 VA examination, and as such, the Board finds that report is inadequate for VA adjudication purposes of the Veteran's hypertension claim. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Based on the findings contained in both the June 2009 and February 2011 VA examination reports, there is clear evidence of a current diagnosis of hypertension, and element (1) has been satisfied. With respect to element (2), the in-service injury or disease, the service treatment records reflect several incidents of elevated BPRs during the Veteran's period of service. See service treatment notes dated in May 1998 (BPRs 126/98 and 124/90), and July 2007 (BPR 120/90), as well as numerous records of reported medical history of elevated blood pressure. However, there is no diagnosis of hypertension in service. The Board acknowledges that a March 2003 dental history note shows that the Veteran reported a history of elevated blood pressure and the examining dentist commented that the Veteran had hypertension that was not treated with medication. Regardless, none of the prior or subsequent service treatment records reflects a diagnosis of hypertension or demonstrates that the Veteran had clinical findings of hypertension taken at least two or three times on three separate days as required by VA. See 38 C.F.R. § 4.104, Diagnostic Code 7101(Note 1). Rather, service treatment records show that a five day blood pressure check in October 2003 did not demonstrate that the Veteran had hypertension. The medical evidence of record does not reflect a diagnosis of hypertension for VA purposes during the Veteran's period of service or prior to June 2009, more than a year after the Veteran's separation from service. Moreover, the Veteran has denied receiving any treatment for his current hypertension, and the medical evidence fails to demonstrate clinical findings of hypertension manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792-67793 (Nov. 7, 2002); see also 38 C.F.R. § 4.104, Diagnostic Code 7101. With respect to element (3), a nexus or relationship between the Veteran's current hypertension and his elevated BPRs in service, the record lacks any adequate medical opinion on that question. Both the June 2009 and February 2011 VA examiners failed to provide medical opinions regarding the etiology of the Veteran's hypertension, and as demonstrated above, the opinion contained in the January 2013 VA examination report is not adequate. There is no medical in support of the Veteran's claim. As noted above in the legal criteria above, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third service-connection element for certain chronic diseases is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013);see also Savage, 10 Vet. App. at 495-97. Hypertension is one of the chronic diseases listed under 38 C.F.R. § 3.309. Although the medical evidence fails to demonstrate that the Veteran's hypertension manifested to a compensable degree with in the first year after separation, that evidence does support a continuity of the Veteran's symptoms (elevated blood pressure) that eventually led to his diagnosis of hypertension in June 2009, only 18 months after the Veteran's separation from service. In this regard, the Board observes that the Veteran's service treatment records clearly demonstrate findings of elevated BPRs from 1998 through the remaining nine years of his service, despite the lack of diagnostic evidence of hypertension. Moreover, it appears that the Veteran was located overseas for work during his first year after his separation from service and he was unavailable to undergo a VA examination prior to June 2009 in support of his claim. See a February 2008 correspondence from the Veteran. Based on the foregoing evidence, and resolving any doubt in the Veteran's favor, the Board finds that medical evidence establishes a continuity of elevated blood pressure symptoms which resulted in a diagnosis of hypertension after service and supports an award of service connection. See 38 C.F.R. § 3.303(b). The Board finds that the evidence of record is at least in approximate balance on whether the Veteran's currently diagnosed hypertension is related to elevated blood pressure first experienced in service and that he has continued to experience since then. Here, there is medical evidence of elevated blood pressure readings shown in service and there is a subsequent diagnosis of hypertension. In addition, it was only 18 months between the Veteran's separation from service and his formal diagnosis of hypertension. Therefore, the Board concludes that the evidence is at least in equipoise on the question of whether the Veteran's hypertension is related to his period of service. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 495-96; see also Hickson, 12 Vet. App. at 253. ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for a right wrist disorder is denied. Entitlement to service connection for a left wrist disorder is denied. ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs