Citation Nr: 1319350	
Decision Date: 06/14/13    Archive Date: 06/21/13

DOCKET NO.  09-38 830	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for a right foot disability.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for a left shoulder disability.

4.  Entitlement to service connection for a right wrist disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Adams, Counsel

INTRODUCTION

The Veteran had active service from June 1994 to March 1995 and from October 2004 to December 2005, including service in the Southwest Asia theater of operations from December 2004 to November 2005, with additional service in the Army National Guard and Reserves.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Saint Louis, Missouri, that, in pertinent part, denied service connection for low back, neck, right foot, right wrist, left shoulder, and bilateral hearing loss disabilities.  Jurisdiction over the appeal was transferred to the Denver RO during the pendency of the appeal.

A review of the record reveals that service connection for low back and cervical spine disabilities was established in a May 2012 rating decision.  Thus, as the benefits sought have been awarded in full, those issues are no longer before the Board.

The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case.

The issues of entitlement to service connection for left shoulder and right wrist disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  The Veteran currently has metatarsalgia of the right foot that is related to his active military service.

2.  The Veteran's current level of bilateral hearing loss does not meet the criteria to constitute a disability for VA purposes under the provisions of 38 C.F.R. § 3.385.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a right foot disability, diagnosed as metatarsalgia, have been met.  38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).

2.   The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 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 representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Proper notice from VA 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.  38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.

Regarding the Veteran's claim for service connection for a right foot disability, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim.   Wensch v. Principi, 15 Vet. App. 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim").  Indeed, given the favorable disposition of the claim for service connection for a right foot disability, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished.

Regarding the Veteran's claim for service connection for bilateral hearing loss, prior to the initial denial of the present claim, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits in a notice letter sent in September 2008.  The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim.  The RO further described what evidence that the Veteran should provide in support of his claim.  Moreover, the RO explained how VA determines the disability rating and effective date of a disability once service connection has been established, which satisfied Dingess notice requirements. 

Because the Veteran was provided with proper notice with respect to his claim by way of the September 2008 pre-adjudication notice letter, the Board concludes that VA's duty to notify has been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed.  Moreover, the Veteran and his representative were provided with copies of the above rating decision, the SOC, and the SSOC, which include discussion of the facts of the claim, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision.

Regarding VA's statutory duty to assist in claims development, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the hearing claim.  Pertinent medical evidence associated with the claims files consists of service and VA treatment records, and the report of a February 2009 VA audiological examination.  A review of that report of examination reveals that all subjective and objective findings necessary for evaluation of the Veteran's hearing loss claim were observed and recorded.  The examination appears complete and adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Notably, the examination included the necessary testing used to determine that the Veteran does not have hearing loss for VA purposes.  The adequacy of the subsequent nexus opinion is therefore moot.

Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained.  Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein.  Therefore, in view of the foregoing, the Board will proceed with appellate review.

II.  Service Connection

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  The Board has thoroughly reviewed all the evidence in the record.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence).

The analysis below focuses on the most salient and relevant evidence and on what this evidence of record shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.

The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  However, application of 38 C.F.R. § 3.303(b) is only triggered if the disability in question is one that is listed as a chronic disability under 38 C.F.R. §§ 3.307, 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (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).

For Veterans with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  Under this law and regulation, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011.  38 C.F.R. § 3.317(a)(1).  

The Veteran claims that he has right foot and bilateral hearing loss disabilities that are related to his service.  As regards the Veteran's right foot claim, the Veteran has a current right foot disability that is related to his service.  However, notwithstanding the fact that sensorineural hearing loss is considered a diagnosed disability, there is no evidence that the Veteran has been diagnosed with any bilateral hearing loss disability during the pendency of these claims.  The Veteran has also not claimed, nor does the evidence raise the issue of, any other undiagnosed illness that manifested to a degree of 10 percent or more following discharge from service.  Accordingly, this provision is inapplicable to this case.

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Competency of evidence 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 into the record.  See 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 cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006).  Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection.  Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096  (Nov. 9, 2000).

In rendering a decision on appeal, the Board must 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.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).

A.  Right Foot

The Veteran was diagnosed with metatarsalgia of the right foot on VA foot examination in April 2012.  Thus, because a current right foot disability has been established, the Board will next consider whether the evidentiary record supports in-service incurrence.

The STRs are void of any treatment or diagnosis of a right foot disability.  An August 1994 note of acute medical care shows that the medial part of the right great toe was removed.  However, the notation appears to be a clerical error as subsequent STRs show that the Veteran's left great toenail, not his right great toenail, was removed.

The Veteran submitted an October 2008 statement from Sergeant C.C. who served with the Veteran during his second period of active service and stated that beginning around August 2005, the Veteran complained of [right] foot pain and often would not run with his peers due to that pain.

VA treatment records include a January 2009 report which reflects a complaint of right foot pain related to running during service.  The assessment was metatarsalgia, right foot.  A February 2009 report shows a complaint of painful right foot.  The Veteran complained that he was unable to run due to pain.  In May 2009, he was diagnosed with a neuroma on the foot, second interspace.  In November 2009, he was diagnosed with a right foot neuroma.  A December 2009 report reflects a complaint of right foot pain of several months duration.  It was noted that he injured his back during service and had localized shooting pain in the right SI joint.  The assessment was metatarsalgia of the right foot.  In August 2011, the Veteran continued to complain of right foot pain.

On VA DBQ foot examination in April 2012, the examiner diagnosed metatarsalgia of the right foot.  In a May 2012 addendum, the examiner opined that the Veteran's right foot condition is at least as likely as not incurred in or caused by his right foot pain that occurred during service.  The rationale was that the Veteran's right foot metatarsalgia started in service and has continued to the present.  The examiner further opined that the condition is unrelated to his back condition with radiculitis and explained that there is evidence of a persistent problem.

VA must consider all favorable lay evidence of record.  38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA.  In this regard, the Board also accepts that the Veteran is competent to report complaints of right foot pain during and after his service.   Furthermore, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006).

The only competent opinion of record is that of the VA examiner who opined that the Veteran's right foot metatarsalgia is related to his service.  There is no contrary opinion of record.  In addition, the Veteran is competent to observe the presence of right foot pain during and after his service and the Board finds that his credible and consistent account of in-service occurrence of right foot pain, to be probative evidence in support of his claim.

In summary, the Board, in reviewing the record in its entirety, finds that the lay and medical evidence has demonstrated that the Veteran's metatarsalgia of the right foot is to his service.  Service connection for a right foot disability, diagnosed as metatarsalgia, is warranted.  The claim, therefore, is granted.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

B.  Bilateral Hearing Loss

The Veteran claims that he has hearing loss due to acoustic trauma from firearms, extra-large generators, power saws, and other large equipment without the benefit of proper hearing protection.  The Veteran's DD Form-214 from his first period of active service reflects a military occupational specialty (MOS) of medical specialist.  The DD Form-214 from his second period of service reflects a MOS of construction engineer supervisor.  Exposure to loud noise in thereby conceded.

Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran's STRs shows that on audiological evaluation in April 1994, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
05
00
05
LEFT
20
20
00
05
15

On audiological evaluation in December 1998 during service in the Army National Guard, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
00
05
05
LEFT
10
10
05
05
10

On audiological evaluation in October 2004, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
10
10
15
LEFT
15
25
15
15
25

On audiological evaluation in October 2005, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
10
15
15
LEFT
20
25
15
10
20

On audiological evaluation in October 2006, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
10
15
15
LEFT
20
25
15
10
20

On VA audiological examination in February 2009, the Veteran presented with a history of military noise exposure from generators and weapons fire; occupational noise exposure from construction and work as an electrician; and recreational noise exposure from motorcycles and some hunting, though rare.  He alleged that his hearing loss began during his active service.

On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
5
15
LEFT
10
15
10
10
15

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear.  The examiner diagnosed functionally normal hearing (with evidence of early noise exposure).  The examiner opined that the Veteran's hearing loss was not caused by or a result of acoustic trauma based on the rationale that although the early signs of a high frequency noise induced hearing loss were present the overall data revealed functionally normal hearing by the criteria that define organic hearing loss.

There is no evidence of in-service hearing loss of the right or left ear.  Notwithstanding, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

Critically however, the record does not contain post-service evidence of a current bilateral hearing loss disability.  Simply put, there is no evidence that the Veteran has a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385, and neither the Veteran nor his representative has presented or identified existing audiometric testing results that show a bilateral hearing loss disability that meet the requirements of that regulation.

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Indeed, even when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.  Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013).

There is no medical evidence showing that a bilateral hearing loss disability has been present at any time during the pendency of the claim or even contemporaneous to when the Veteran filed his claim.  The report of a current VA examination shows the Veteran does not have bilateral hearing loss; and, as noted above, his service treatment records are negative for any documented hearing loss.  He has accordingly not shown a current disorder for which service connection can be granted, whether on a direct basis or a presumptive basis.

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of hearing loss for VA purposes falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Sensorineural hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that audiometric and word recognition testing is needed to properly assess and diagnose the disorder.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). 

That is, although the Board readily acknowledges that Veteran is competent to report decreased hearing acuity along with exposure to loud noise, there is no indication that the Veteran is competent to render a diagnosis of sensorineural hearing loss for VA purposes.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating hearing disorders.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value.

In summary, even assuming the credibility of the Veteran's account of having been exposed to acoustic trauma in service, the preponderance of the evidence weighs against the claim.  There is no medical evidence of the presence of a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385 during the pendency of this claim. Therefore, because the preponderance of the evidence is against his claim, service connection for bilateral hearing loss is not warranted.

In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for a right foot disability, diagnosed as metatarsalgia, is granted.

Service connection for bilateral hearing loss is denied.


REMAND

After review of the record, it has been determined that further evidentiary development is necessary before the Board can adjudicate the Veteran's claim for service connection for left shoulder and right wrist disabilities.
 
VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate.  38 U.S.C.A. § 5103A (West 2002).  The Board regrets the additional delay that will result from this remand.  Nevertheless, the Board is constrained by the fact that proper adjudication of the claim requires additional development.



I.  Medical Examination and Opinions

The Veteran contends that he has left shoulder and right wrist disabilities that are related to his second period of active service.

As regards the Veteran's left shoulder, the STRs include a December 2004 physical profile which shows that the Veteran sustained a left shoulder sprain.  Additional records dated in December 2004 show that the Veteran sustained a left shoulder injury while bench pressing.  A December 2004 physical therapy consultation continuation sheet reflects a diagnosis of left shoulder bicep tendonitis and complaints of pain and mild numbness in the L4/5 fingers during exercises.  However, an X-ray examination showed a normal left shoulder.  A November 2005 report of medical assessment reflects a complaint of worsening left shoulder pain.

As regards the Veteran's right wrist, the STRs include a June 2005 sick slip and chronological report of medical care which reflects the Veteran's complaint of right wrist pain secondary to a recent injury.  The Veteran stated that while holding a board he felt a pop in his wrist and experienced severe swelling for which he was prescribed Motrin and given a splint.  The assessment was right wrist pain.  A June 2005 X-ray report shows a complaint of persistent right wrist pain secondary to acute trauma, but was negative for any evidence of a fracture.  An October 2005 report of medical examination is negative for any diagnosed right wrist disability.

As regards the Veteran's left shoulder and right wrist disabilities, the Board notes that the Veteran underwent a promotion examination in November 2005 prior to his discharge from his second period of active service in December 2005.  That examination did not include an orthopedic examination that specifically addressed his left shoulder and right wrist complaints.  Post-service, VA treatment records are void of any diagnosed left shoulder or right wrist disabilities.  However, the Veteran has provided competent lay evidence that he continues to experience right wrist and left shoulder symptomatology.

VA is obliged to provide an examination or obtain a medical opinion if the evidence of record: contains competent evidence that the claimant has a current disability, or persistent recurrent symptoms of a disability; and establishes that the Veteran suffered an injury or disease in service; indicates that the claimed disability or symptoms may be associated with the established injury or disease in service or with another service-connected disability, but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4).

The threshold for finding that there "may" be a nexus between current disability or persistent or recurrent symptoms of disability and service is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 at 83 (2006).

Under the circumstances, the Board finds that the duty to assist set forth at 38 C.F.R. § 3.159 requires that the Veteran be scheduled for a VA examination in response to his claim for service connection for a left shoulder and right wrist disability, as it is unclear whether the Veteran has any current disability of his left shoulder or right wrist and the record does not include an opinion as to whether any current left shoulder or right wrist disability is related to the Veteran's service.

II.  Records

Finally, as this matter is being returned for additional development, the Board finds that outstanding VA treatment records should be obtained.  A review of the Veteran's Virtual VA electronic claims file, shows that the most recent records are dated in May 2012.  Thus, the Veteran's outstanding VA treatment records, if extant, must be secured on remand.  See 38 C.F.R. § 3.159(c) (2), (c)(3) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain the Veteran's VA outpatient treatment records for the period since May 2012.  If such records do not exist or are otherwise not available after reasonable efforts, such circumstances shall be fully documented in the claims file.

2.  After obtaining the above records, the Veteran should be scheduled for a VA examination to be conducted by an orthopedist or other appropriate examiner to determine the nature and etiology of any current left shoulder and right wrist disabilities.  All indicated studies should be performed, and the claims folder shall be made available to the examiner for review prior to the examination(s).  The Veteran's lay history of symptomatology should also be recorded and considered.  Based on the examination of the Veteran and a thorough review of the record, the examiner should provide the following information:

(a)  Diagnose any current left shoulder disability.

Is it at least as likely as not (at least a 50 percent probability) that any current left shoulder disability had its onset in or is etiologically-related to either period of the Veteran's active duty service?  Why or why not?

(b)  Diagnose any current right wrist disability.

Is it at least as likely as not (at least a 50 percent probability) that any current right wrist disability had its onset in or is etiologically-related to either period of the Veteran's active duty service?  Why or why not?

A rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 

3.  Thereafter, the issues on appeal should be readjudicated.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the ultimate outcome of the case.

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).

These claims 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. 2012).


______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs