Citation Nr: 1324947 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 07-04 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a chronic left wrist disability. 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to an effective date earlier than April 13, 2009 for the grant of service connection for PTSD. 3. Entitlement to a total rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to December 1984. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in September 2005, May 2010, and July 2012 by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claims of entitlement to a TDIU and service connection for a chronic left wrist disability, and granted service connection for PTSD and assigned a 50 percent rating, effective April 13, 2009. In April 2012, the Veteran, accompanied by his representative, appeared at the VA Central Office (VACO) in Washington, DC., to submit evidence and oral testimony in support of his appeal before the undersigned. A transcript of this hearing is in the Veteran's claims file for the Board's review and consideration. In July 2012, the Board granted service connection for PTSD and remanded the claims for a left wrist disability and TDIU to the RO via the Appeals Management Center (AMC) for further evidentiary development. A review of the record indicates that the Board's remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In particular, the requested VA treatment records and SSA records were obtained and associated with the claims folder, and the VA examination was conducted in August 2012. The issues of entitlement to an earlier effective date and an initial rating in excess of 50 percent for PTSD and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. FINDING OF FACT The Veteran's currently diagnosed left wrist disabilities did not begin in service and there is no probative evidence of a nexus between any currently diagnosed left wrist disability and active service. CONCLUSION OF LAW A chronic left wrist disability was not incurred in active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Duty to Assist VA has a duty to notify and assist claimants in substantiating a claim 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 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the claim for service connection for a left wrist disability, the Veteran was sent a letter in March 2005, before the original adjudication of the claim, which provided information as to what evidence was required to substantiate a claim for service connection and of the division of responsibilities between VA and a claimant in developing an appeal. Although notification of regulations pertinent to the establishment of an effective date and of the disability rating were not provided, the Veteran has not been prejudiced as a result, as the claim is being denied. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Next, VA has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records, all pertinent pre-and post-service treatment records, and by providing an examination, when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All identified and available VA and private treatment records were obtained and associated with the claims file. The Veteran was advised in a June 2005 letter that his original claims file was unavailable, which included his service treatment records. He was informed that his claims file was being rebuilt and was asked to submit any records from his original claims file, to include his service treatment records. In July 2005, VA received correspondence from the Veteran relaying his recall of the circumstances of his in-service injury. An August 2005 letter to the Veteran notes that the Veteran informed VA in May 2005 that he did not have any records that would assist in rebuilding his claims file. The letter further stated that VA has been unable to locate the Veteran's original claims file and service treatment records, and would rate the claim in 10 days unless the Veteran submitted additional documents. An August 2005 Memorandum documented VA's attempts to locate these records. After considering the above, the Board concludes that there is no reasonable possibility that any further development to obtain the Veteran's original claims file or service treatment records would be successful. 38 C.F.R. § 3.159(e); see O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (Recognizing that the Board has a heightened obligation to assist the veteran in the development of his case, and to explain findings and conclusions, as well as carefully consider the benefit-of-the-doubt rule when records in the possession of the government are presumed to have been lost or destroyed.) Additionally, his statements in support of the claim are of record, including testimony provided before the undersigned. In this regard, the U.S. Court of Appeals for Veterans Claims has held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). At the hearing, the Veteran provided testimony regarding the claimed in-service event, his current left wrist disability, and his assertion that the two are related. Any deficiencies in the April 2012 Board hearing under section 3.103(c)(2) were not prejudicial, and no deficiencies have been shown or alleged. Through numerous notice letters and a remand, the Veteran has been advised of what evidence would substantiate his claim, and accorded opportunities to provide substantiating evidence. VA has otherwise developed this claim, including obtaining a VA examination pursuant to the remand, which specifically addresses the outstanding issue in this case, a nexus between an in-service injury and any current left wrist disabilities. Accordingly, the duties under 38 C.F.R. § 3.103(c)(2) have been complied with and any deficiencies were non-prejudicial. As noted above, the Veteran was afforded a VA examination in August 2012 to evaluate his left wrist. The Board finds that the VA examination is adequate to decide the case as it was based upon consideration of the Veteran's pertinent medical history, including his lay assertions and his current complaints, and it sufficiently informs the Board of the examiner's medical judgment on the medical questions and the examiner's essential rationale for the opinion. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-106 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Law and Analysis Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing entitlement to service connection for a disability requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship 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); see 38 C.F.R. § 3.303 (2012); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran seeks service connection for a chronic left wrist disability which he claims he incurred in service. During his April 2012 Board hearing, he testified that he twisted his wrist while driving a truck into a "tank trap" in service. At the outset, the Board notes that although the Veteran reported that he sustained an injury to his left wrist in service, the Veteran's service treatment records are not associated with the claims file, and are not available. As previously noted, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Essentially, service connection may be granted if the evidence establishes that the claimed disorder is related to service. Applying the Hickson analysis, the initial question is whether there is evidence of a current left wrist disorder. There is evidence of a current left wrist disorder of record. There are various findings and diagnoses pertaining to the left wrist in VA and private treatment records dated from 2004 to the present. Most recently, the August 2012 VA examination report shows that the Veteran's current diagnoses involving the left wrist are ganglion cyst and cubital tunnel syndrome. With respect to Hickson element (2), service treatment records are unavailable as explained above. According to the Veteran's personal account of sustaining a left wrist injury in service, the injury did not involve a fracture. He stated that he received therapy on his left wrist while in service and reported on his separation report of medical history that his left wrist bothered him. In addition, the Veteran submitted statements dated in July and August 2010 from J. B. and D. G. who reported that the Veteran told them he injured his left wrist in service. He also submitted statements received July 2006 from H. J. and J. S. who noted that the Veteran underwent physical therapy in service. The Veteran is competent to report the above and the Board has no reason to doubt his credibility based on the evidence of record. Accordingly, the Board finds that the Veteran injured his left wrist during service and it continued to hurt throughout his service. With reference to Hickson element (3), the evidence must show that it is at least as likely as not that the current left wrist disorder is related to a disease or injury that occurred in service. In this case, although the Veteran believes that his current left wrist problems are related to wrist problems he had in service, there is no competent evidence to support that assertion. Although the Veteran is competent to report a history of a left wrist injury in service and his own self-perceived left wrist symptoms since service, as he is not shown to be a trained and accredited medical professional, he is not competent to state that his current clinical diagnoses of ganglion cyst and cubital tunnel syndrome are current manifestations or residuals of, or are otherwise linked to, his history of an alleged left wrist injury. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, his statements alone are insufficient to establish a nexus between his current left wrist diagnoses and his period of active duty and are afforded little probative value. Further, according to the July 2006 report, his private physician noted that the Veteran had related a history of injury to his left wrist during active duty in 1982. However, the physician did not provide a nexus opinion linking the current diagnosis to the Veteran's military service. Therefore, this report is afforded little probative value. In the August 2012 VA examination report, the examiner opined that a left wrist disability is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale provided included that the Veteran was able to perform and maintain his substantial and gainful employment by performing his occupational duties from the time of military discharge until 2009. Further, and most notably, the examiner observed that the Veteran's left elbow surgery in May 2012 resolved almost all of his wrist pain. The examiner described that the cubital tunnel syndrome is caused by a back and forth motion across the outer elbow, prolonged bending of the elbow, and prolonged pressure of the elbow against a hard surface which can cause ulnar nerve irritation which can result in pain, numbness, and/or tingling in the elbow, forearm, hand, and/or fingers. The examiner concluded that there is no lay, medical, or diagnostic finding establishing a nexus of care post military active duty discharge, which allows for a substantial amount of time for injury to the left upper extremity. In determining the probative value to be assigned to a medical opinion, the Board considers whether the medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully-articulated opinion; and whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In this case, the VA examiner in August 2012 reviewed all available medical evidence, including VA and private treatment records, and lay testimony provided by the Veteran, and cited to those documents extensively; and provided a fully-articulated opinion which was supported by a reasoned analysis of several pages. Thus, the Board affords the opinion great probative value. For the reasons stated above, the Board concludes that the probative evidence of record against the claim outweighs any favorable evidence in support of the claim. The Board finds that the preponderance of the evidence is against the claim for service connection for a chronic left wrist disability and there is no reasonable doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, the claim is denied. ORDER Entitlement to service connection for a chronic left wrist disability is denied. REMAND The July 2012 rating decision granted the Veteran's claim for service connection for PTSD and assigned 50 percent rating effective April 13, 2009. Subsequently, the Veteran submitted an August 2012 statement indicating disagreement with the assigned rating and effective date. However, no statement of the case (SOC) has been issued regarding the issues of entitlement to an increased rating or earlier effective date. When no SOC has been provided following a veteran's timely filing of a notice of disagreement (NOD), a remand, as opposed to a referral, is required. Manlincon v. West, 12 Vet. App 238 (1999). Consequently, these issues are remanded for purposes of issuing a SOC. As the increased rating and earlier effective date claims being remanded could affect the claim for a TDIU, the Board finds that the claims are inextricably intertwined and a Board decision on the TDIU claim at this time would be premature. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the Board is deferring a decision on the TDIU claim. Accordingly, the case is REMANDED for the following actions: 1. Issue a SOC with respect to the NOD filed as to entitlement to an initial evaluation greater than 50 percent for PTSD and entitlement to an earlier effective date for the grant of service connection for PTSD. The Veteran should additionally be informed that in order to perfect an appeal of these issues to the Board, he must file a timely and adequate substantive appeal following the issuance of the SOC. If a timely substantive appeal is not filed regarding the issues, the issues should not be certified to the Board. 2. After the necessary procedures have been followed above, readjudicate the claim for TDIU. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs