Citation Nr: 1328964 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 06-03 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right wrist musculoskeletal disability. 2. Entitlement to an effective date earlier than May 31, 2011, for the grant of a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Shannon L. Brewer, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2010, the Veteran testified before the undersigned Acting Veterans Law Judge at a travel board hearing. A copy of that transcript has been associated with the claims file. A December 2010 Board decision denied the Veteran's claim for service connection for a right wrist disability. The Veteran appealed the December 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2011, pursuant to a September 2011 Joint Motion for Partial Remand, the Court issued an Order that vacated the portion of the Board's decision that denied service connection for a right wrist disability and remanded the claim to the Board for further proceedings. The Board subsequently remanded the Veteran's claim in July 2012 for additional development. In July 2012, the Board found that the record had raised a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded this claim for additional development. In an April 2013 rating decision, the RO granted the claim for a TDIU. Therefore, the Board finds that this issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). On the other hand, the Board finds that while a February 2013 rating decision granted service connection for a right wrist scar, this decision does not constitutes a full award of benefit sought on the appeal because it does not encompass the Veteran's contentions that he has a musculoskeletal right wrist disability. Therefore, the Board has recharacterized this issue as reflected on the title page. Next, the Board notes that in May 2013 the RO issued a statement of the case as to the Veteran's claim for a higher evaluation for his psychiatric disorder and his claim that the RO did not correctly calculate the combined evaluation assigned his service connected disabilities in the December 2011 rating decision. No further action as to this claim was taken by the Veteran or his representative. Therefore, the Board does not have jurisdiction over these issues and the below decision need not discuss them. See 38 C.F.R. §§ 20.200, 20.302(c) (2012) (an appeal requires a notice of disagreement and a timely filed substantive appeal after issuance of a statement of the case). Since the February 2013 supplemental statement of the case, the Veteran and his representative have submitted additional information and evidence pertaining to his claim. However, in a June 2013 written statement, the Veteran's representative waived RO consideration of this evidence. See 38 C.F.R. §§ 19.37, 20.1304 (2012). Therefore, the Board finds no prejudice to the Veteran in proceeding to adjudicate this appeal and taking into account this new evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that certain documents, including VA medical records dated in February 2012, have been added to the claims file since the February 2013 supplemental statement of the case and are potentially relevant to the issues on appeal. However, the relevant evidence merely reflects that the Veteran had continued treatment for a right wrist disability and does not pertain to the issue on which the matter turns (i.e. whether the Veteran's right wrist musculoskeletal disability is due to his period of service). Therefore, the Board finds no prejudice to the Veteran in proceeding to adjudicate this appeal without first remanding it for a supplemental statement of the case. See 38 C.F.R. § 19.31 (2012) (a supplemental statement of the case will be furnished to the Veteran when additional pertinent evidence is received after a statement of the case has been issued). In January 2012, the Veteran raised a claim of service connection for sleep apnea. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The claim for an earlier effective date for the grant of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The evidence is at least in relative equipoise on the question of whether the Veteran's current right wrist musculoskeletal disability is related to his period of active service. CONCLUSION OF LAW The criteria for establishing service connection for a right wrist musculoskeletal disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As the decision to grant the Veteran's claim of entitlement to service connection for a right wrist musculoskeletal disability is completely favorable, the Board finds that discussion of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), notice provided to the Veteran is unnecessary, since any deficiency in the timing or content of such notice would constitute harmless error. To whatever extent the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as a disability rating and effective date, the Board finds that the RO will address any applicable downstream issues when effectuating the award and therefore any failure to provide this notice at this junction cannot prejudice the claimant because he will be free to appeal any unfavorable finding by the RO regarding the disability rating and effective date. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). The Veteran contends that he has musculoskeletal residuals of a right wrist injury that is related to a laceration injury to his right wrist that occurred during his period of service in 1968. He contends that while working on an ammunition container that was mounted on the floor in an aircraft, the container fell on his right arm and caused a laceration to his wrist. The Veteran submitted lay statements dated in July 2004, March 2005, and December 2008 from former service members who corroborated his story as they had witnessed the accident. The Veteran also submitted a copy of a May 1968 letter that he had written to his parents in which he reported suffering a right wrist laceration injury. Service treatment records confirm that in May 1968 the Veteran was treated for a laceration on the inside of his right wrist. He received 13 sutures. Subsequently in May 1968, the Veteran had follow-up treatment sessions where he had his hand bandage checked and then had his sutures removed. However, on separation examination in February 1969, the Veteran made no complaints of his wrist, and his upper extremities were found to have no abnormalities. Post-service VA and private treatment records dated from March 1986 to March 2012 show that the Veteran received treatment for right median neuropathy at the wrist (carpal tunnel syndrome), right wrist pain, and degenerative arthritis of the right wrist. On VA examination in April 2008, the examiner noted that in May 1968 a heavy piece of equipment had fallen hard on the Veteran's right wrist resulting in a laceration to the wrist which required stitches. He also noted the Veteran's letter to his family in which the claimant reported significant pain and decreased motion of the wrist after his injury. The examiner found that the Veteran had apparently continued on duty for a short period after his wrist injury. Upon examination, the Veteran was diagnosed with degenerative joint disease of the right wrist as well as residuals of carpal tunnel syndrome status post carpal tunnel release. The April 2008 VA examiner opined that he could not resolve the issue of a possible connection between the degenerative joint disease of the wrist and service without speculation. He noted that the initial trauma was documented as a laceration and no other joint injury was documented. The examiner also stated that treatment records from 2002 had documented that the Veteran's wrist had only been bothering him for one month. The examiner further observed that the Veteran had had apparent trauma to the wrist after discharge from the military. He concluded that it was possible that the original trauma had caused the Veteran's degenerative joint disease, but he could not resolve this without mere speculation. Regarding the Veteran's carpal tunnel syndrome, the examiner found that it appeared to have resolved, as the Veteran had experienced good result of carpal tunnel surgery in the 1980s. The examiner opined that he could not resolve the issue of a possible connection between the carpal tunnel syndrome and service without resorting to mere speculation. He indicated that the Veteran's carpal tunnel release had occurred many years later and it was not exactly clear that this had been related to service. In September 2010 and March 2012 opinions, the Veteran's private physician reported that she had examined the Veteran for progressively worsening right wrist pain that occasionally radiated up his arm. She noted the Veteran's history of an injury during his service in the military in 1968 where an "ammo container" fell onto and lacerated his right wrist. The Veteran indicated that at the time of the injury, his laceration had been sutured and no x-rays had been taken. Fluoroscopy examination revealed a widening of the scapholunate interval/scapholunate advanced collapse, as well as cystic changes within the scaphoid. The physician opined that these findings were consistent with probable calcium pyrophosphate dihydrate (CPPD) combined with the Veteran's above mentioned previous traumatic wrist injury. She treated the Veteran with a cortisone injection into the scapholunate interval and indicated that if his symptoms persisted or worsened he might eventually require a four corner right wrist fusion versus excision of the scaphoid with capitolunate fusion. At a May 2012 VA examination, the Veteran reported that while he was in service, he lacerated and fell on his right wrist. Upon examination, the Veteran was diagnosed with degenerative joint disease of the right wrist. The VA examiner opined that the Veteran's degenerative joint disease of the right wrist was not caused by, a result of, or aggravated by the claimant's laceration of the right wrist during his period of service. He based his opinion on a review of the service treatment records and medical literature review. He explained that service treatment records revealed that the Veteran had suffered a laceration of his right wrist while in service in 1969 and that he had received 13 sutures. However, per the examiner's review of the claims file, there had been no mention of right wrist joint pain as a result of that laceration. He also noted that the Veteran's February 1969 separation examination was also completely silent for any mention of a right wrist condition. The examiner reported that lacerations themselves did not cause degenerative joint disease and that no nexus had been established. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). With the above criteria in mind, the Board assigns no probative weight to the April 2008 VA opinion. The examiner opined that he could not resolve the issue of whether the Veteran's right wrist disabilities were related to his period of service without resorting to speculation. The Board acknowledges that it is permitted to rely upon a medical examiner's conclusion that an etiology opinion would be speculative as long as "the inability to render a requested opinion is adequately explained" and the examiner has "done all that reasonably should be done to become informed about a case." See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). However, as noted in the September 2011 Joint Motion for Partial Remand, the April 2008 VA examiner did not adequately explain his speculative conclusion, given his statement that it was possible that the original wrist trauma had continued to the Veteran's current degenerative joint disease, but that he could not resolve this without mere speculation. Regarding the issue of whether the Veteran's right wrist musculoskeletal disability was due to his period of active service, the Board acknowledges the May 2012 VA examiner's opinion that his degenerative joint disease of the right wrist was not caused by, a result of, or aggravated by his laceration of the right wrist during his period of service because although service treatment records revealed that the appellant had suffered a laceration of his right wrist during service for which he had received 13 sutures, per the examiner's review of the claims file, there had been no mention of right wrist joint pain as a result of that laceration. The Veteran's February 1969 separation examination was also completely silent for any mention of a right wrist condition. The examiner also reported that lacerations themselves did not cause degenerative joint disease. However, the September 2010 and March 2012 private physician opined that the Veteran's fluoroscopy examination findings of a widening of the scapholunate interval/scapholunate advanced collapse and cystic changes within the scaphoid were consistent with probable CPPD combined with the Veteran's previous traumatic in-service wrist injury. The Board notes that in the September 2010, March 2012, and May 2012 opinions, the physician and examiner both performed physical examinations and provided detailed and adequate rationale for the differing conclusions of whether the Veteran's right wrist musculoskeletal disability was due to his in-service right wrist laceration injury. The Board notes that the September 2010 and March 2012 private physician did not review the Veteran's claims file. However, a medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, while the private physician did not review the claims file, she considered the Veteran's factually accurate lay statements regarding onset and symptomatology of his disorder. The Board also notes that the May 2012 VA examiner found no mention of right wrist joint pain as a result of the Veteran's in-service laceration. However, it does not appear that the May 2012 examiner considered the Veteran's lay statements regarding symptomatology of his disorder. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). The Board points out that consideration of the Veteran's lay statements is a crucial matter, given that the September 2011 Joint Motion for Partial Remand determined that there had been an inadequate basis for not finding the Veteran's lay statements to be credible. For these reasons, the Board cannot find the negative May 2012 VA opinion to be more probative than that of the positive September 2010 and March 2012 private opinions. Similarly, the Board cannot find that the positive September 2010 and March 2012 private opinions are more probative than the negative May 2012 VA opinion. Thus, the overall record is in relative equipoise as to whether the Veteran's right wrist musculoskeletal disability diagnosed by the private doctor as CPPD and VA doctors as degenerative joint disease was due to his period of active service. Where the evidence supports the claim or is in relative equipoise, the appellant prevails. Thus, the criteria for service connection for a right wrist musculoskeletal disability have been met. Reasonable doubt is resolved in favor of the Veteran, and the Board finds that service connection for a right wrist musculoskeletal disability is warranted. 38 U.S.C.A. 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right wrist musculoskeletal disability is granted. REMAND As to the claim for an earlier effective date for a TDIU, in a June 2012 statement the Veteran's representative expressed disagreement with the May 31, 2011, effective date assigned by the April 2013 rating decision. No further action has been taken as to this notice of disagreement. Therefore, the Board finds that a remand for a statement of the case (SOC) is required. See Manlincon v. West, 12 Vet. App. 238 (1999). Also as to the earlier effective date claim, the Board notes that while the December 2012 VA examiner provided an opinion as to whether the Veteran's left knee disability, adjustment disorder with PTSD, left plantar fasciitis, bilateral hearing loss, and left hip disability individually prevented him from sustaining gainful employment, the examiner did not provide an opinion as to whether the service-connected disabilities, taken together, prevented the Veteran from sustaining gainful employment. Moreover, the December 2012 VA examiner did not take into account the Veteran's newly service connected right wrist musculoskeletal disability in providing his opinion. Therefore, while the appeal is in remand status the Board finds that the claims file should be forwarded to the VA examiner who conducted the December 2012 TDIU examinations to obtain an addendum opinion regarding whether the claimants newly service connected right wrist musculoskeletal disability prevented him from sustaining gainful employment prior to May 31, 2011, as well as whether the appellant's service-connected disabilities, taken together, prevented him from sustaining gainful employment prior to May 31, 2011. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The record shows that the Veteran receives ongoing treatment from, among other places, the North Florida/South Georgia VA Healthcare System. Therefore, while the appeal is in remand status his contemporaries treatment records from these locations should be obtained and associated with the record. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the veteran to attempt to obtain them). Accordingly, this issue is REMANDED to the RO for the following actions: 1. The RO should enact the Board's decision herein and assign an effective date and disability rating for the right wrist musculoskeletal disability. 2. The RO should obtain and associate with the claims file, physically or electronically, any of the Veteran's outstanding treatment records from the North Florida/South Georgia VA Healthcare System. All actions to obtain the requested records should be documented fully in the claims file. 3. The RO should contact the Veteran and ask that he provide VA with authorizations to obtain any outstanding private treatment records. All actions to obtain the requested records should be documented fully in the claims file. 4. After the above has been completed, the claims file should be returned to the examiner who conducted the December 2012 VA examinations, if available, and another examiner if he is not. The examiner should review the claims file and electronic VA treatment records and provide an addendum opinion as to whether it is as likely as not (50 percent or more probability) that the Veteran's service-connected right wrist musculoskeletal disability rendered him unable to secure or follow a substantially gainful occupation prior to May 31, 2011. The examiner should also provide an addendum opinion as to whether it is as likely as not (50 percent or more probability) that the Veteran's service connected disabilities (left knee disability, adjustment disorder with PTSD, left plantar fasciitis, bilateral hearing loss, left hip disability, right wrist musculoskeletal disability, and right wrist scar), taken together, without consideration of his non-service-connected disabilities, rendered him unable to secure or follow a substantially gainful occupation at any time prior to May 31, 2011. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. See Jones v. Shinseki, 12 Vet. App. 382 (2010) (holding that if an examiner is unable to provide the requested medical opinion he must explain how the limits of medical knowledge had been exhausted). In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale with citation to relevant evidence found in the claims file must be provided for each opinion offered. 5. The RO should issue a statement of the case with respect to the claim for an earlier effective date for the grant of the TDIU. If the Veteran files a timely substantive appeal, this issue should be returned for review by the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ NEIL T. WERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs