Citation Nr: 1321938 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 10-03 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for linear scleroderma of the scalp prior to February 12, 2008, and in excess of 30 percent as of February 12, 2008. 2. Entitlement to service connection for a left wrist disability, claimed as secondary to a service-connected left elbow disability. ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1988 to December 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the issues on appeal for additional development in October 2012. FINDINGS OF FACT 1. In correspondence dated February 12, 2013, the Veteran requested withdrawal of the appeal as to the issue of entitlement to an initial rating in excess of 10 percent for linear scleroderma of the scalp prior to February 12, 2008, and in excess of 30 percent as of February 12, 2008. 2. A left wrist disability was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to an initial rating in excess of 10 percent for linear scleroderma of the scalp prior to February 12, 2008, and in excess of 30 percent as of February 12, 2008, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. A left wrist disability was not incurred in or aggravated by military service nor as a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by the authorized representative. 38 C.F.R. § 20.204 (2012). The appellant has withdrawn the appeal for entitlement to an initial rating in excess of 10 percent for linear scleroderma of the scalp prior to February 12, 2008, and in excess of 30 percent as of February 12, 2008, by correspondence dated February 12, 2013, and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to that matter and it is dismissed. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating 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). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate her service connection claim by correspondence dated in March 2008. The notice requirements have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, and the Veteran's statements in support of her claim. The development requested on remand in October 2012 has been substantially completed. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain chronic diseases, such as arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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 evidence presented by a Veteran concerning continuity of symptoms after service may be considered credible, and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In determining whether evidence submitted by a veteran is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). VA can consider bias in lay evidence and conflicting statements of a veteran in weighing credibility. Buchanan v. Nicholson, 451 F.3d 1331 (2006). VA may favor one medical opinion over another, provided an adequate reason for doing so is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The pertinent evidence of record shows the Veteran's service medical records are negative for any left wrist disability. A September 2001 examination report found a normal clinical evaluation of the upper extremities. On VA examination in September 2002 the Veteran complained of left elbow popping and grinding which she attributed to a fall during physical training. Range of left elbow motion was from 0 to 120 degrees. A diagnosis of left elbow medial epicondylitis was provided. A December 2002 rating decision established service connection for left elbow medial epicondylitis. In correspondence dated in February 2008 the Veteran requested entitlement to service connection for a left wrist disability. She asserted that her difficulty using her left arm and wrist was due to arthritis. In a March 2008 statement she claimed that a lack of mobility in her left elbow had caused over compensation in her left wrist. VA treatment records dated in January 2008 noted the Veteran was working as a gym trainer and that she complained of sharp pain in certain positions of the left wrist with an inability lift weight. An April 2008 report notes that she complained of great pain in her left elbow and wrist. The examiner's assessment was chronic left elbow/wrist pain due to tendonitis versus other cause. On VA examination in October 2008 the Veteran reported that her left wrist pain began in 2005 and that her discomfort did not radiate from the elbow. The examiner noted there were no constitutional symptoms of arthritis, but that there were left wrist joint symptoms including pain, stiffness, and weakness. The diagnoses included left wrist strain which the examiner found was less likely caused by or a result of her left elbow disability. It was noted that the left wrist issue was not related to the left elbow issue because it began many years after that disorder and was more likely due to her occupation as a trainer and history of lifting weights. The diagnoses also included linear scleroderma to the scalp. A November 2008 rating decision established service connection for linear scleroderma. In the April 2009 notice of disagreement, the Veteran asserted that she did not lift weights and that her left wrist problem was due to "hyper use" because of the connective tissues between the elbow and the wrist. She reiterated her claim in a January 2010 substantive appeal. VA treatment records dated in December 2011 noted the Veteran complained of puffiness in the hands over the past seven to eight years which was manifest in the mornings and resolved later in the day. She stated her wrist only bothered her with extreme flexion. An examination revealed a little tenderness at the left wrist. Laboratory testing included a normal rheumatoid factor. The examiner noted there was a history of linear scleroderma, but that there was no indication that had become a generalized process. VA examination in February 2013 included a diagnosis of left wrist strain. An X-ray study noted an ulnar minus variance, but that a previously noted Madelung's deformity on a December 2011 study was not evident on the recent study which was likely related to difference in projection. The examiner found the Veteran's left wrist strain was less likely caused by or a result of active service and less likely caused by or a result of her service-connected left elbow medial epicondylitis. It was noted that her left wrist pain started approximately eight years earlier, after service, and was a separate condition from the left elbow disability with no nexus between the two conditions. It was further noted, in essence, that as the two disorders were found to be unrelated an opinion as to aggravation was unwarranted. Based upon the evidence of record, the Board finds that the Veteran's left wrist disability was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service or a service-connected disability. The February 2013 VA examiner's opinion that there was no nexus or causal relationship between her service-connected left elbow disability is persuasive and based upon adequate rationale. The opinion is shown to have been based upon a thorough examination, a thorough review of the evidence of record, and adequate consideration of the Veteran's statements. The opinion is also consistent with the opinion of the October 2008 VA examiner. The December 2011 VA treatment report further demonstrates there are no left wrist symptoms due to a generalized process associated with her service-connected linear scleroderma, and finds that an opinion as to aggravation by the elbow disability was not needed because they were unrelated, in essence, providing an opinion. While the Veteran is competent to provide evidence as to observations and some medical matters, her statements are, at most, conclusory assertions of a nexus between her post-service manifestations of a left wrist disability and her service-connected left elbow disability. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). As questions of as to the onset or aggravation of an orthopedic disorder and any relationship to an incident during service are complex etiological questions akin to the type of medical matters which courts have found laypersons are not competent to provide, her statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide etiology or nexus evidence). The Veteran is not found to be competent to state that her present left wrist symptoms were caused or aggravated by her service-connected left elbow disability. The Board finds the preponderance of the evidence in this case is against the claim for entitlement to service connection for a left wrist disability. The persuasive medical opinions in this case show that the Veteran's present left wrist disability did not develop as a result of active service or a service-connected disability, and was not aggravated by the service-connected left elbow disability. The evidence does not show that any arthritis of the left wrist manifested to a compensable degree within one year following separation from service. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to an initial rating in excess of 10 percent for linear scleroderma of the scalp prior to February 12, 2008, and in excess of 30 percent as of February 12, 2008, is dismissed. Entitlement to service connection for a left wrist disability, claimed as secondary to a service-connected left elbow disability, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs