Citation Nr: 1325193 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 09-02 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a left wrist disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from June to August 1980, from December 2005 to August 2007, and from July 2009 to September 2010. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In April 2009, the Veteran presented testimony at a hearing conducted at the Wichita RO before a Decision Review Officer (DRO). A transcript of the hearing is in the Veteran's claims file. A Travel Board hearing was scheduled in April 2010. The Veteran did not appear for the Travel Board hearing, and neither the Veteran nor his representative has requested that the Veteran's hearing be rescheduled. Thus, the Board will proceed as if the request for a hearing has been withdrawn. See 38 C.F.R. § 20.702(d) (2012). In November 2010, the Board remanded the case to obtain the Veteran's service treatment records, VA treatment records, and afford him a VA examination. In April 2012, the Board again remanded the case to obtain additional service treatment records. The claims have now been returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file indicates that there is relevant information to the Veteran's current claims and such evidence has been considered accordingly. FINDINGS OF FACT The Veteran does not currently have a left wrist disability that is the result of, or is aggravated by, the Veteran's military service or any other service-connected conditions. CONCLUSION OF LAW The Veteran does not have a left wrist disability which is the result of a disease or injury incurred in or aggravated by active duty, nor may such a disorder be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in October 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Given the above, no further development is required with respect to the duty to notify. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). The Board notes that the Veteran's complete service treatment records are not on file. The Board observes that despite VA's efforts, the Veteran's complete service treatment records for his periods of service from December 2005 to August 2007; and from July 2009 to September 2010 have not been associated with the claims file. The Board notes that the Veteran is no longer a member of the National Guard having been retired by a physical evaluation board as a result of a back disorder. The VA has tried to obtain these records. In its November 2010 and April 2012 remands, the Board observed that the repository of the Veteran's records might have changed during the period when he left active duty in August 2007, stayed a member of the National Guard, and then returned to active duty in July 2009. In December 2010 the Kansas Adjutant General's Office responded that the office did not maintain records on soldiers who are still a member of the National Guard and advised the RO to contact the Veteran's unit of assignment. In March 2011, the National Personnel Records Center (NPRC) responded that all VA requests for military personnel and medical information/records should be initiated through PIES. However, it did not appear that a request through PIES was made. In November 2011 the U.S. Army Human Resources Command notified VA that their records indicated that the Veteran was a member of the National Guard and suggested that VA contact the Adjutant General of the state where service was rendered for ADT dates and medical determinations. The DD Form 214 for the period from July 2009 to September 2010 revealed that the Veteran's last duty of assignment and major command was Btry C (-) 2d BN 130th FA FC; his last duty assignment and major command at the time of his prior separation (Btry B (-) 1st BN 161st FA FC) was also contacted. After reviewing the RO's efforts at finding the Veteran's service treatment records, the Board finds that further efforts to obtain those records for the Veteran would be futile. The Board must also point out that the Veteran has offered testimony as well as written statements that he did not report any left wrist injury or receive any treatment for a left wrist condition during service. He only reported a left wrist injury upon separation at the suggestion of an advisor at that time who told him to list any and all conditions and injuries. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Additionally, the Veteran was afforded VA examinations in November 2007 and May 2011. The Board finds the VA examinations to be adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and testimony, and current complaints, and because they describe the claimed left wrist disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the DRO hearing, the DRO identified the issue, sought information as to the onset of the Veteran's symptoms and the treatment he received in order to determine whether all relevant records had been obtained. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c) (2) as interpreted in Bryant. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. II. Legal criteria 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 curium, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements in a claim based on a chronic disease listed in 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2012); overruling in part Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The issue in this case does not involve a listed chronic disease. In relevant part, 38 U.S.C.A.1154 (a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "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 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"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). III. Background The Veteran submitted a claim for service connection for a left wrist condition in October 2007 shortly after his release from active duty. In a November 2007 VA examination the Veteran reported that he injured his left wrist after lifting a .50 caliber gun rack while in Iraq in 2006. He stated that he was not treated at that time or in fact at any time during service for a left wrist condition. The Veteran reported that his left wrist bothers him with certain movements and he has numbness in the tips of his second and fourth fingers intermittently. Examination revealed no swelling, effusion, tenderness, laxity, ankylosis, arthritis, or any abnormality of the left wrist. Range of motion of the left wrist was palmar flexion to 80 degrees with pain; dorsi flexion to 65 degrees with no pain; deviation to 20 degrees with no pain; and, ulnar deviation to 30-35 degrees with pain. There was no additional limitation of motion with repetition. X-rays of the bilateral wrist were normal. There were no fractures or dislocations. The carpal tunnel bones were intact and the soft tissue was unremarkable. The diagnosis was a normal left wrist. At a DRO hearing at the RO in April 2009 the Veteran testified that he had injured his left wrist while, "We were mounting a 50-cal and I held it wrong and it twisted, twisted my, my wrist." He did not seek treatment or report it at the time. He only reported it several months later while processing out of service. He was advised at that time that, "Before leaving that if we had any complaints, anything hurt to at least go make a statement on it." He was not taking any medications, receiving physical therapy, or any treatment for a left wrist condition. By rating action in March 2008 service connection was denied for a left wrist condition. In the Veteran's January 2009 appeal to the Board, referring to the left wrist condition he noted that he, "Put wrist down due to the fact was suggested if you have anything to report do so." In a May 2011 VA examination, the examiner noted that he reviewed the claims file. The STRs were not available. The Veteran's reported history was the same as in the previous November 2007 VA examination. The Veteran reported that the area of concern was always the radial side of his left wrist. He had intermittent symptoms and used an Ace wrap for support. He used his right hand more extensively and also to support his left wrist. Examination revealed no neoplasm, loss of bone, abnormal weight bearing, inflammatory arthritis, deformity, giving way, instability, stiffness, incoordination, swelling, decreased speed, locking, effusion, inflammation, or affect on motion. There was pain and tenderness. Range of motion of the left wrist was palmar flexion to 80 degrees with pain; dorsi flexion to 70 degrees with no pain; deviation to 20 degrees with no pain; and, ulnar deviation to 45 degrees with pain. There was no additional limitation of motion with repetition. X-rays of the bilateral wrist were normal. There were no objective findings of any left wrist disorder; and no effects on occupational and daily activities. The diagnosis was a normal left wrist. The evidence of record does not contain a diagnosis of a left wrist disorder. The Board observes that despite VA's efforts, the Veteran's complete service treatment records for his period of service from December 2005 to August 2007 have not been associated with the claims file. The Board also notes that during the pendency of this appeal, the Veteran went on another period of active duty from July 2009 to September 2010. He is no longer a member of the National Guard having been retired by a physical evaluation board as a result of a back disorder. The Board notes that while the service treatment records are not available, the Veteran denies any complaints, treatment or diagnosis of a left wrist injury, or any injury involving the left wrist during service. Moreover as noted previously, the Veteran's April 2009 DRO testimony noted that he did not seek treatment or report any left wrist injury at the time. He only reported it several months later while processing out of service. He was not currently taking any medications, receiving physical therapy, or any treatment for a left wrist condition. In fact, at both VA examinations during the appeal period his left wrist was determined to be perfectly normal. The post-service treatment records on file contain no evidence of a left wrist condition; none of the medical treatment records note any medications, or any treatment for a left wrist condition. The Board accords great probative value to the November 2007 and May 2011 VA examination reports. The examiner's opinions were based on a review of the entire evidence of record and offered a sound rationale that is consistent with the evidence on file. The examiners in reviewing the file had the benefit of reviewing the post-service records documenting no evidence of any left wrist condition. The Board acknowledges the Veteran's own opinions concerning the origin of his left wrist condition. In some circumstances, a layperson is competent to not only describe the symptoms associated with a disorder throughout the years, but to offer an opinion as to etiology. In this case, the medical history and nature of the disorder is clearly outside the realm of lay expertise to offer any opinion as to etiology. To the extent he offers his lay observations as to continuity of symptoms, the Board finds the probative value of his observations are outweighed by the opinions of the November 2007 and May 2011 VA examiners, who clearly has more education, experience and training in addressing the etiology of medical disorders than the Veteran. The record does not contain a diagnosis of a left wrist condition. Nor does the record include diagnostic studies demonstrating any abnormal left wrist findings. The Veteran has provided information that he has not received any treatment or diagnosis of a left wrist condition during service or post service. Service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of the claim). The record does not contain a diagnosis of any left wrist condition; or any competent evidence of a left wrist condition. Although laypersons are competent to describe their symptoms, and in some circumstances to offer a competent diagnosis of disability, the Veteran has not done so. There simply is no evidence, lay or medical, of any left wrist condition. Therefore, service connection is not warranted for this disability. In sum, the Board finds that the preponderance of the evidence is against service connection for a left wrist condition. ORDER Service connection for a left wrist disorder is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs