Citation Nr: 1323456 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 06-32 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a left wrist disability. 2. Entitlement to service connection for a right wrist disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The appellant had active service from October 1975 to August 1978; and had a period of active duty for training (ACDUTRA) from July 1972 to April 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. A Travel Board hearing in front of the undersigned Veterans Law Judge was held in July 2007. A transcript of the hearing has been associated with the claim file. The Board previously remanded the claim in November 2008, June 2009, August 2011 and February 2013. The requested development has been substantially complied with and the claim is ready for appellate review. The Board notes that the Veteran submitted a claim for service connection for a bilateral wrist disability. In the decision below, the Board finds that the Veteran has a current left wrist disability related to service. However, a right wrist disability related to service has not been shown. The Board has therefore, recharacterized the issue as noted on the title page in order to properly decide each wrist separately. The Board has reviewed the Veteran's Virtual VA file and finds that there are no additional records contained therein which are relevant to the present claim. FINDINGS OF FACT 1. The most probative (competent and credible) evidence of record, establishes diagnosis of degenerative joint disease of the left wrist that is a result of an injury in service. 2. Bilateral wrist tendinitis and carpal tunnel syndrome, and tenosynovitis of the right wrist were not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that bilateral wrist tendinitis and carpal tunnel syndrome, and tenosynovitis of the right wrist are related to active military service. CONCLUSIONS OF LAW 1. The Veteran's degenerative joint disease of the left wrist was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A right wrist disability was not incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In correspondence dated in March 2004, prior to the August 2004 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. A March 2006 letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The issues were subsequently readjudicated in supplemental statements of the case dated in April 2009 and July 2010. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. The Veteran's service treatment records to the extent available have been obtained. The Board acknowledges that the Veteran's service treatment records appear to be incomplete. The RO was notified by the National Personnel Records Center in July 2006 that all available service treatment records were forwarded for inclusion in the Veteran's claims file. In a September 2006 memorandum, the RO made a formal finding on the unavailability of service records and indicated that all efforts to obtain those records had been exhausted and further attempts would be futile. Moreover, the Board acknowledges that not all of the Shreveport VAMC treatment records have been obtained. In a December 2012 memorandum, the RO made a formal finding on the unavailability of the Shreveport VAMC treatment records and indicated that all efforts to obtain those records had been exhausted and further attempts would be futile. In a case in which a claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). The Board observes that the Veteran was notified of the unavailability of his service treatment records and the Shreveport VAMC records, and was afforded an opportunity to supplement the record with additional evidence. Therefore, the Board finds that additional efforts to obtain these records would be futile, and as such, the Board finds that VA has fulfilled its duty to assist in obtaining such records. All other available records identified by the Veteran have been obtained and associated with the claims folder. Additionally, as the Board will discuss in detail in its analysis below, the Veteran was provided with a VA examination. Furthermore, the Veteran has presented personal testimony before the undersigned. Thus, the duties to notify and assist have been met. Legal Criteria and Analysis Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303(a), 3.306 (2012). Stated somewhat differently, service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship or correlation between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). According to 38 C.F.R. § 3.303(b), if chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. See Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity of disease or injury in service and in turn link current disability to service. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Service connection for certain chronic diseases, including arthritis, will be rebuttably presumed if they manifested to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records. The Veteran's lay testimony also has to be credible, however, to ultimately have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")). 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, (e.g., a broken leg, separated shoulder, tinnitus (ringing in the ears), pes planus (flat feet), varicose veins, etc.), (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 essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97 (1997); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows as to the claims. The Veteran seeks entitlement to service connection for a wrist disability. The Board notes that the record reflects that the Veteran had an injury to the left wrist in service. Available service treatment records are otherwise silent for any additional complaints of or treatment for a disability of the bilateral wrists. VA outpatient treatment records dated in 2002 show a diagnosis of carpal tunnel syndrome of the right wrist. Records of July 2002 show the Veteran complained of a sudden onset of pain on the right wrist. VA outpatient treatment records of August 2002 show a diagnosis of tenosynovitis of the right wrist. September 2002 records show a diagnosis of right flexor tenosynovitis. Records dated later in September 2002 show the Veteran underwent a carpal tunnel release and tenosynovectomy of the right wrist. A September 2002 examination done in conjunction with a worker's compensation claim notes the Veteran reported a sudden onset of severe pain on the right wrist in July 2002. The right wrist was twice as large as the left. He denied any symptoms prior to that. Furthermore, he denied any prior episodes of arthritis in either wrist and any discomfort in either wrist prior to that. It was noted he underwent carpal tunnel release surgery earlier in September. Another worker's compensation claim examination was conducted in July 2003. At the time, it was noted that he had a sudden onset of symptoms related to the right wrist in July 2002. He underwent a carpal tunnel release of the right wrist in September 2002. After an examination of the Veteran, he was diagnosed with wrist pain with history of tenosynovitis and carpal tunnel syndrome. Records from the Social Security Administration show the Veteran was awarded disability benefits due to status post carpal tunnel surgery. Private treatment records of October 205 show x-ray evidence of congenital lunotriquetaral fusion with mild degenerative changes. The Veteran was afforded a VA examination in March 2009. It was noted that he had a navicular chip injury to the left wrist in service. The examiner incorrectly stated that the claim pertained to the right wrist only. It was noted that he underwent carpal tunnel release and tenosynovitis in 2002. A revision was conducted in 2006 due to complications. The Veteran reported some left wrist pain, weakness, stiffness and tingling into the fingers of the left hand. X-rays showed a normal right wrist. After an examination of the Veteran, the examiner opined that the right wrist tenosynovitis and carpal tunnel syndrome of the right wrist is less likely than not due to or the result of active military duty. He noted the lack of any complaints related to the right wrist in service and the fact that complaints had an onset well after one year from service. The Veteran was afforded a second VA examination in March 2013. At the time, after a physical examination of the Veteran, the examiner provided a diagnosis of bilateral wrist tendinitis/previous right wrist tenosynovitis/left wrist carpal tunnel syndrome. A review of the examination shows that no x-rays were conducted in conjunction with this examination, but rather the examiner relied only on the right wrist x-rays previously obtained in 2002 and 2009. The examiner opined that the Veteran had an isolated chip fracture of the navicular bone in the 1970's on the left wrist and there were no other records of this chip fracture and therefore it is less likely that the isolated entry in 1973 caused a current left wrist disability. He noted that these types of chip fractures are usually isolated and minimal and are unlikely to cause long-term disability. As to the right wrist, he noted that the Veteran reported an injury to the right wrist in Korea in the mid 1970's but there is no indication in the record of any such claimed injury. He opined it is unlikely that the right wrist disabilities have anything to do with service. He noted the lack of documentation in service of any injury, and the fact that symptoms did not start until 2002. The Veteran has submitted an April 2013 private orthopedic exam which notes diagnoses of left wrist degenerative joint disease, and status post carpal tunnel syndrome and flexor tendon synovitis. The physician noted the Veteran's had sustained an injury to the left wrist in service which had caused a chip fracture. He stated he had seen him in the past for the right wrist for a flexor tendon tenosynovectomy and carpal tunnel release. He still has this problem on this side. X-rays showed findings of degenerative joint disease of the left wrist. A May 2013 letter from a private orthopedist states that after an examination of the Veteran and a review of his documents, he currently has degenerative joint disease of the left wrist which is directly attributable to the injury in service in the 1970s. The Veteran has been diagnosed with tendinitis, tenosynovitis and carpal tunnel syndrome of the right wrist, and tendinitis, carpal tunnel syndrome and degenerative joint disease of the left wrist. Initially, the Board notes that considering the evidence as delineated above, the evidence supports a finding of service connection for degenerative joint disease of the left wrist. In this regard, the Board notes that the only medical opinion of record regarding the diagnosis of degenerative joint disease of the left wrist is the May 2013 private physician's opinion which supports a nexus to the injury in service. He based his opinion on his review of the records, the x-ray findings of degenerative joint disease of the left wrist, an examination of the Veteran and the confirmed injury in service, the physician opined that the left wrist degenerative joint disease is due to the injury in service. Moreover, the opinion stands uncontradicted by any other competent and reliable evidence of record. Indeed, the 2009 VA examiner did not provide a nexus opinion regarding the left wrist, and the March 2013 VA examiner did not provide an opinion regarding the degenerative joint disease of the left wrist. In fact, he did not even diagnose the disability as he conducted no x-rays at the time of the March 2013 examination but rather relied on previous x-rays for his diagnoses. Considering the above, the Board finds that service connection is warranted for degenerative joint disease of the left wrist. However, regarding the remaining diagnoses of bilateral wrist tendinitis and carpal tunnel syndrome, and tenosynovitis of the right wrist, the Board finds that the evidence is against a finding of service connection. Regarding the left wrist, the Board acknowledges that the records reflect that the Veteran had a left wrist injury in service. However, nothing in the record relates the tendinitis or carpal tunnel syndrome to the injury in service. Indeed, the March 2013 VA examiner opined that the tendinitis or carpal tunnel syndrome of the left wrist is not related to the injury in service. The examiner provided the opinion after a review of the claim file and an examination of the Veteran. This opinion stands uncontradicted by any other competent opinion of record. Regarding the right wrist, the Board notes that there is no evidence of an injury to the right wrist in service. Indeed, the records show that in 2002, when the Veteran first sought treatment for right wrist pain, he denied ever experiencing any symptoms related to the right wrist prior to 2002. The Board acknowledges that the Veteran reported an injury to the right wrist in service during the March 2013 VA examination. To the extent he now may be arguing continuity of symptomatology, the Board finds that the Veteran's allegations are not supported by the record. Significantly, the treatment records consistently show that the Veteran reported being asymptomatic until 2002. In fact, during treatment for right wrist pain and his workers compensation claim in 2002, he denied any problems with his right wrist prior to 2002 and reported a sudden onset of symptoms. The Veteran first reported an injury to the right wrist in service at the March 2013 VA examination. Prior to that, the Veteran had undergone a VA examination in 2009 during which he did not report the injury to the right wrist in service. The Board places greater weight on the assertions made by the Veteran during the course of his seeking treatment in 2002 than on his current assertions in conjunction with the pending claim. The Veteran's allegations of an injury in service were first made at the time of the March 2013 VA examination. Considering the above, the Board finds the Veteran's current assertions of an injury to the right wrist in service not to be reliable and places little probative weight on them. Moreover, nothing in the record relates the currently diagnosed tenosynovitis, carpal tunnel syndrome and tendinitis of the right wrist to service. Quite the contrary, the only competent and reliable medical opinions of record state that the currently diagnosed right wrists disabilities are not related to service. They stand uncontradicted by any other opinion of record. The Board further acknowledges the Veteran's beliefs that his current bilateral tendinitis and carpal tunnel syndrome, and tenosynovitis of the right wrist are related to service. In this regard, the Board notes that the Veteran is competent to report symptomatology as is perceived through the senses. See Jandreau, supra. However, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen, supra. In this case, the Board finds that the etiology of the currently diagnosed bilateral tendinitis and carpal tunnel syndrome, and tenosynovitis of the right wrist requires expertise which is beyond the Veteran's capabilities and therefore the Veteran's opinion as to the etiology of these disabilities is not competent evidence and cannot serve to support a grant of service connection. Finally, the Board notes that the Veteran has been shown to have a congenital lunotriquetral fusion of the bilateral wrists. Congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9 (2012). However, VA's General Counsel has held there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental defect, on the other hand, because of 38 C.F.R. § 3.303(c), is not service connectable in its own right, though service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82-90 (a disease considered by medical authorities to be of familial (or hereditary) origin by its very nature preexist claimants' military service; however, service connection for congenital, developmental or familial diseases could be granted if manifestations of the disease in service constituted aggravation of the condition). The Veteran's entrance examination fails to reflect that the Veteran experienced any symptomatology related to his bilateral wrists that preexisted his active military service. Nevertheless, congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. But service connection is generally precluded by regulation for such "defects", because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Thus, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin, 22 Vet. App. at 397; Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). Service connection is only possible for a congenital defect is there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. In this regard, the Board notes that nothing in the record suggests that the noted congenital lunotriquetral fusion of the bilateral wrists was aggravated beyond its natural progression by service. Indeed, and quite the contrary, the only opinion of record is contained in the March 2013 VA examination and it states that there is no indication the condition was aggravated by service beyond its natural progression. This opinion stands uncontradicted by any other competent medical opinion of record. Accordingly, service connection for congenital lunotriquetral fusion of the bilateral wrists is not warranted. In sum, the evidence is against a finding of service connection for bilateral wrist tendinitis and carpal tunnel syndrome, and tenosynovitis of the right wrist. However, the competent and probative evidence shows that service connection is warranted for degenerative joint disease of the left wrist. To this extent the appeal is granted. ORDER Service connection for degenerative arthritis of the left wrist is granted. Service connection for a disability of the right wrist is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs