Citation Nr: 1320239 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-01 259 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for ganglion cyst of the left wrist. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from July 1970 to June 1972 and from September 1973 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision by the RO which denied the benefits sought on appeal. FINDING OF FACT The Veteran was not shown to have a ganglion cyst of the left wrist in service or at present, and there is no competent evidence that any claimed ganglion cyst of the left wrist is relate to service. CONCLUSION OF LAW The Veteran does not have a ganglion cyst of the left wrist due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326. The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in December 2007. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs), and all VA and private medical records identified by the Veteran have been obtained and associated with the claims file. The Veteran was afforded an opportunity for a personal hearing, but declined. The Veteran was also examined by VA during the pendency of this appeal, but declined to have his left wrist evaluated by the examiner. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Left Wrist Ganglion Cyst The Veteran contends that he developed ganglion cysts simultaneously on both wrists while lifting weights in service, and seeks to establish service connection for the left wrist. (Service connection has been established for a ganglion cyst on the right wrist.) The Veteran's STRs showed no complaints, treatment, abnormalities or diagnosis for a ganglion cyst on the left wrist or for any left wrist problems during service. The STRs showed that the Veteran was treated for ganglion cyst on the right wrist one time in service in December 1979. At that time, he reported swelling in the right wrist for two weeks and increased pain when lifting and extending his arm. The Veteran was referred to the orthopedic clinic for excision of the cyst, but reportedly decided against surgery. The STRs showed no further complaints, treatment or abnormalities for the ganglion cyst on the right side, and were completely silent for any problems or findings involving the left wrist. On a Report of Medical History for service separation in February 1981, the Veteran denied any skin problems, swollen or painful joints, tumors, growths or cysts, bone or joint deformity, or lameness, and no pertinent abnormalities were noted on examination at that time. The Veteran made no mention of any left wrist problems or a ganglion cyst on his original application for VA compensation benefits, received in May 1993, on subsequent claims in November 1993 and December 2001, or when examined by VA March 2002. Similarly, other than an occasion reported history of bilateral ganglion cysts, VA treatment records from 1993 to the present do not show any complaints, treatment or abnormalities referable to any left wrist problems or a ganglion cyst on the left wrist. Examination of the Veteran's upper extremities on a VA outpatient treatment note in May 2007, showed no rashes or lesions, normal sensation and reflexes, and full range of motion in his upper extremities. The evidentiary record also includes numerous medical reports, including duplicate VA records, received from the Social Security Administration showing treatment for various maladies from 1981 to the present. Significantly, other than an occasional reference to a history of ganglion cysts, the reports were completely negative for any findings or abnormalities for a ganglion cyst on the left wrist. Private medical records dated in August 1981, received in connection with an unrelated claim showed that the Veteran reported an eight month history of occasional swelling, erythema and pain in his wrists and ankles. Examination of the extremities showed no clubbing, cyanosis or edema, and no evidence of any joint abnormalities or lymph nodes. In February 2008, the Veteran was examined by VA concerning his claim of service connection for ganglion cysts on both wrists. The examiner indicated that after talking with the Veteran for a few minutes prior to examination, the Veteran stated that he did not want to have his left wrist examined and requested that only his right wrist be evaluated. Parenthetically, the Veteran was noted to have a 1-cm ganglion cyst on the radial portion of the ventral surface of the forearm of the right hand at the wrist area which was exquisitely tender. In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). Concerning the Veteran's contentions, while he is competent to provide evidence regarding his observations and experiences, any such assertions must be weighed against other inconsistent or contradictory evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, the Board finds that the Veteran's assertion that he was treated for ganglion cysts on both wrists in service, when compared with the historical record, raises serious doubts as to his ability to provide accurate and reliable information and reflects negatively on his credibility. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Specifically, that the Veteran would suffer simultaneous ganglion cysts lifting weights in service, but would not mention the alleged cyst on his left wrist or any other problems involving his left wrist when treated for the right wrist in service is not logical. Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). The Board emphasizes that personal interest to receive benefits may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Because the Veteran's contentions are inconsistent with the record, the Board does not find them credible, and accords them no probative value. The Veteran is likewise not shown to have any medical expertise, and therefore any medical conclusions he offers are of no probative value. The decision then must be based on the documented medical record, which as described above, fails to support the conclusion that he has a ganglion cyst on the left wrist that is related to service. As there was no evidence of a ganglion cyst on the left wrist in service or at anytime subsequent thereto, and no competent evidence relating any claimed ganglion cyst on the left wrist to service, the Board finds no basis for a favorable disposition of the Veteran's appeal. Accordingly, the appeal is denied. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a ganglion cyst of the left wrist is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs