Citation Nr: 1329891 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 07-34 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left wrist disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active service from July 1979 to July 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2010, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing held at the RO. A transcript of the hearing has been associated with the claims file. During the hearing the Veteran submitted additional medical records accompanied by a signed waiver of initial RO consideration of this newly-submitted evidence. The undersigned held the record open an additional 60 days and the Veteran submitted buddy statement, albeit, without a waiver of RO consideration of this evidence. However, this statement was considered by the RO in a Supplemental Statement of the Case (SSOC), issued in December 2011. As such, the Board will proceed to consider the case. See 38 C.F.R. § 19.37(c) (2013). In October 2010, the Board remanded the Veteran's claims for entitlement to service connection for a left wrist disorder, hypertension, and non-ischemic hypertensive cardiomyopathy for further evidentiary development and due process reasons. In a January 2012 decision, the RO granted service connection for hypertension and ischemic cardiomyopathy. Accordingly, those claims are no longer before the Board. The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDING OF FACT The preponderance of the evidence of record reflects that the Veteran's left wrist disorder did not have its onset during military service or within the initial post-service year and is not otherwise etiologically related thereto. CONCLUSION OF LAW The criteria to establish service connection for a left wrist disorder are not met. 38 U.S.C.A. § 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their 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) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This 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). In addition, the holding 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 disability rating and effective date. In the instant case, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits in a notice letter sent in January 2005. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim. The RO further described what evidence that the Veteran should provide in support of his claim. However, he was never formally notified in a VCAA letter of how VA determines disability ratings and effective dates with regard to his claim. The lack of Dingess notice as to disability ratings and effective dates is not shown to prejudice the Veteran. Because in the decision herein, the Board denies the Veteran's claim for service connection for a left wrist disorder, no disability rating or effective date is being, or will be assigned; accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess/Hartman. In addition, the Veteran and his representative have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been substantially met. Regarding VA's statutory duty to assist in claims development, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim. Pertinent medical evidence associated with the claims files consists of service and VA treatment records and private treatment records. Pursuant to the Board's October 2010 remand, VA also obtained the Veteran's service personnel records in an effort to verify his claim that he injured his left wrist in an APC vehicle accident that occurred approximately in May 1981. Pursuant to that remand, the Veteran was also afforded a VA joints examination in May 2011 at which time the examiner opined that it is less as likely as not that any left wrist disorder is etiologically related to the Veteran's period of active service. The VA examiner's opinion involved a thorough review of the claims file, including the service treatment records and extensive post-service treatment records, and an opinion that was supported by sufficient rationale. Accordingly, the Board finds that VA substantially complied with the Board's remand directives in further developing the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). For those reasons, the Board finds that VA substantially complied with the Board's remand directives in further developing the Veteran's claim. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Also of record and considered in connection with the appeal are various statements submitted by the Veteran and his representative, on his behalf. As noted above, the Veteran was provided with a Board hearing in July 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the provisions of 38 C.F.R. § 3.103(c) (2) (2013) require that the hearing officer who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that both duties were met during the hearing. It was clear during the hearing that the Veteran had a full understanding of the issue on appeal. The undersigned Veteran's Law Judge elicited testimony regarding the history and etiology of his left wrist disorder, to include whether he had any evidence that such disability could be related to his active service. The Veteran's testimony also triggered the Board's decision to Remand the matter to obtain the above referenced VA examination and opinion and service personnel records. For the above reasons, the Board finds that, consistent with Bryant, VA has complied with the duties set forth in 38 C.F.R. § 3.103 (c) (2) and that the Board can adjudicate the claim based on the current record. It must be noted that neither the Veteran nor his representative have asserted that VA failed to comply with the provisions of 38 C.F.R. § 3.103(c) (2) nor identified any prejudice in the conduct of the Board hearing. Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. Therefore, in view of the foregoing, the Board will proceed with appellate review. II. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence of record shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, application of 38 C.F.R. § 3.303(b) is only triggered if the disability in question is one that is listed as a chronic disability under 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). 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, (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 persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted into the record. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Veteran has claimed that he currently has a left wrist disorder that is attributable to an in-service injury. He testified that he injured his left wrist in an APC vehicle accident that occurred approximately in May 1981. He stated that he subsequently received in-service treatment for his left wrist symptomatology. According to the Veteran, he was considered for a merit award related to this incident; however, the award was ultimately given to another service member who was also involved in the accident. The Veteran's STRS are negative for reports of any left wrist symptomatology. In addition, the Veteran's service personnel records do not contain any information regarding an APC vehicle accident in May 1981. Post-service, VA treatment records include a September 2004 report which states that the Veteran sustained an injury to his left wrist (his APC rolled over) about 20 years ago. He had intermittent pain in the wrist ever since with increased pain for the past two years. The assessment was "suspected ganglion" with traumatic arthritis as the possible etiology of the Veteran's symptoms. X-rays showed considerable degenerative arthritis (narrowing) of the wrist joint. A July 2005 report indicates a history of chronic left hand pain secondary to trauma. The impression was scaphoid lunate dislocation (SLAC wrist). On VA joints examination in May 2011, the Veteran presented with a history of involvement in a rollover MVA "out in the field" with associated swelling and numbness in the left hand. An X-ray examination indicated normal bones and joints of the left hand, with moderate loss of normal radiocarpal joint space. The examiner diagnosed arthritis of the left wrist. Based on an examination of the Veteran and review of the claims file, the examiner opined that it is less likely as not that any diagnosed left wrist disorder is etiologically related to the Veteran's period of active service, to include the reported in-service left wrist injury. The rationale provided was that the STRs are silent for any complaints, diagnosis, treatments or diagnostic imaging of left wrist pain. In addition the separation examination was silent for any left wrist problems and private medical records were silent for any complaints, diagnosis, treatments, or diagnostic imaging of left wrist pain. Based upon the evidence of record, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a left wrist disorder for reasons explained below. The Board finds that the Veteran was not shown to have any left wrist disorder during service. In addition, while the Veteran has reportedly experienced left wrist symptoms since his service, the earliest post-service medical evidence of any relevant findings is dated in September 2004. This is about 22 years after separation from active duty service. See 38 C.F.R. § 3.303(b) ; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of complaints and medical treatment for a condition can be considered as a factor in resolving a claim. In this regard, the Board finds that the Veteran's reported history of continued left wrist symptomatology, while competent, is nonetheless not credible. In this regard, there are no medical records prior to September 2004 which reflect treatment or complaints of any left wrist disorder. Instead, the record reflects that the Veteran's assertions of service onset were not made until September 2004-three months prior to the filing of his December 2004 claim for benefits. If he had indeed been suffering from left wrist symptomatology since his discharge from active service, it would have been in his best interest to report problems with his left wrist since service, if such had been the case. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In this regard, the Veteran's assertion of continuity of left wrist symptomatology is inconsistent with the medical evidence in this case and weighs against the Veteran's credibility Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). More importantly, the only competent opinion of record is the May 2011 VA examiner's opinion that it is less likely as not that any diagnosed left wrist disorder is etiologically related to the Veteran's period of active service, to include the reported in-service left wrist injury. Furthermore, as previously stated, while the September 2004 VA treatment record reflects the Veteran's complaint of left wrist pain since his service, medical records dated for the period since the Veteran's discharge from service and September 2004 are negative for any findings, complaints, symptoms or diagnosed left wrist disorder; there is no persuasive evidence that the Veteran has been experiencing chronic symptoms of any left wrist disorder, including arthritis, since service. Put another way, service connection based on the theories of direct onset (38 C.F.R. § 3.303(a)), a presumption of service connection (38 C.F.R. § 3.307, 3.309), or continuity of symptomatology (38 C.F.R. § 3.303(b)) is not established. The Board has considered lay statements from the Veteran and his friend which suggests that the Veteran's current left wrist disorder is related to an in-service injury, but does not find that they weigh in favor of the Veteran's claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an orthopedic disorder, including arthritis, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Arthritis is not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that X-ray studies and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that the Veteran is competent to report left wrist pain and swelling, there is no indication that neither the Veteran or his friend are competent to diagnosis arthritis or to link any current diagnosis of arthritis of the left wrist to his in-service motor vehicle accident. Neither has been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that they have received any special training or acquired any medical expertise in evaluating orthopedic disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left wrist disorder on either a direct or presumptive basis. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left wrist disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs