Citation Nr: 1330179 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-07 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right wrist disorder. 2. Entitlement to service connection for left wrist disorder. 3. Entitlement to service connection for right hip disorder. 4. Entitlement to service connection for left hip disorder. 5. Entitlement to service connection for back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2010, the Veteran testified at a local hearing before a Decision Review Officer (DRO). A copy of the transcript is of record. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issues of service connection for right and left hip disorders and back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained regarding the issues of service connection for right and left wrist disorders. 2. The Veteran does not have currently diagnosed right and left wrist disorders or residuals therefrom. CONCLUSIONS OF LAW 1. The criteria for service connection for right wrist disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection for left wrist disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for arthritis of the right and left wrists. Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection can also be established through application of statutory presumptions. Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309. In this case, the evidence does not show the Veteran has ever been diagnosed with a disease listed as a "chronic disease" under 38 C.F.R. § 3.309(a) for his claims of service connection for right and left wrist disorders, thus 38 C.F.R. § 3.303(b) does not apply in this case. Service connection may also 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). Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. §§ 1117, 1137 (West 2002); 38 C.F.R. § 3.317(a)(1) (2012). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The "Southwest Asia theater of operations" refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Persian Gulf War means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 U.S.C.A. § 101(33) (West 2002); 38 C.F.R. § 3.3(i) (2012). In this case, the Veteran's DD Form 214 reflects foreign service; however, a January 2000 VA examination report notes his foreign service was in Germany and Korea and the Veteran does not assert that he served in the Southwest Asia theater of operations during his period of active service March 1980 to March 2000. As a result, the Board finds that the Veteran is not a Persian Gulf Veteran, thus service connection for right and left wrist disorders on a presumptive basis for a Persian Gulf Veteran does not apply in this case. The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In a January 2008 informal claim, via a VA Form 21-4138, for service connection, the Veteran asserted he has been diagnosed with arthritis of both wrists. In April 2008, the Veteran submitted an Authorization and Consent to Release Information to VA Form 21-4142 noting he was diagnosed with arthritis in the wrists by Dr. C. K. K. and magnetic resonance imaging (MRI) testing was performed at Scott & White and Metroplex Hospital. At the September 2010 DRO hearing, the Veteran reiterated he was diagnosed with arthritis in the wrists by his physician at Scott & White. He also complained of swelling and numbness in the wrists, and did not have any problems with the wrist until after separation from service. The Board acknowledges the Veteran is competent to testify about observable symptoms with regard to his wrists. See Layno, 6 Vet. App. at 469. Nevertheless, the evidence demonstrates the Veteran does not have currently diagnosed right and left wrist disorders. On VA general medical examination in January 2000, the Veteran was silent as to any complaints regarding the wrists. On VA examination for the joints in November 2010, a summary joint symptoms for both wrists included pain, stiffness, and weakness, but upon physical evaluation there were no right or left wrist joint findings. The Veteran exhibited full range of bilateral wrist motion with no objective evidence of painful motion. The examiner noted the following VA outpatient x-ray results of the left hand. In May 2006, results showed no evidence of fracture, dislocation, other significant bone abnormality, or radiopaque foreign body, and April 2010 results were unremarkable with no evidence of fracture or dislocation, arthritic changes, signs of avascular necrosis, or a cause for soft tissue swelling. Following the evaluation and review of the claims file, the VA examiner concluded a diagnosis of arthritis of the bilateral wrists was not found, providing evidence against this claim. Furthermore, pursuant to the Veteran's repeated assertions, review of private treatment records from the Scott & White facility and the Metroplex Health System facility, to include records signed by Dr. C. K. K., are silent as to any complaints, treatment, or MRI results of either wrist. Simply stated, the Board fully understands the Veteran's concerns and complaints regarding his wrists. However, based on the best evidence of record, the competent evidence demonstrates the Veteran does not have a current diagnosis of a right or left wrist disorder at this time. As a result, the Board finds that a preponderance of the lay and medical evidence that is of record is against the claims for service connection for right and left wrist disorders. The Veteran's own prior statements provide some evidence against his claim. The Veteran was informed in a February 2008 notice letter that he must have evidence of a current disability for his claims on appeal. He has not presented any competent and probative evidence nor has he provided any information as to where VA could obtain such evidence. Since the competent medical evidence is against the conclusion that the Veteran currently has right and left wrist disorders, the service connection criteria requiring the presence of a current "disability" have not been met and service connection cannot be granted for these claims. See Brammer, 3 Vet. App. at 225. For these reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claims for service connection for right and left wrist disorders. As a result, these claims must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a February 2008 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the February 2008 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claims on appeal, the evidence of record includes the Veteran's service treatment records, statements by the Veteran, September 2010 DRO hearing transcript, private treatment records, and January 2000 and November 2010 VA examination reports. The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination reports are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Service connection for right wrist disorder is denied. Service connection for left wrist disorder is denied. REMAND A remand is required in this case to ensure there is a complete record upon which to decide the issues of service connection for right and left hip disorders and back disorder. In November 2010, the Veteran underwent VA examinations for the joints and the spine. Following the physical evaluations, the same examiner concluded that conditions of arthritis of the bilateral hips and arthritis of the lumbosacral spine were not found. The Board finds this VA medical opinion is inadequate to render a decision for these claims on appeal. The examiner did not provide an opinion as to whether the Veteran's mild degenerative changes of the right and left hips, as documented in April 2006 private MRI reports, are related to service. The examiner also did not provide an opinion as to whether the Veteran's minimal degenerative changes of the lumbar spine and mild or minimal diffuse spondylosis of the lumbar spine, as documented in February 2005 and April 2006 private MRI reports, respectively, are related to service. The Board notes that review of the evidentiary record also shows the Veteran's assertions of continuous bilateral hip and back symptoms since service and documented in-service complaints and treatment for the back. Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced); see also Stefl v. Nicholson, 21 Vet. App 120 (2007); see Daves v. Nicholson, 21 Vet. App. 46, 52 (2007); Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (concluding that inadequate medical evaluation frustrates judicial review). As a result, the Board finds that additional VA medical opinions are necessary to ensure there is a complete record upon which to decide these claims on appeal. The RO/AMC should arrange for the Veteran's claims file to be reviewed by the physician who conducted the November 2010 VA examinations for the joints and the spine and prepared the medical opinions (or a suitable substitute if that physician is unavailable) for the purpose of preparing addendum opinions. Accordingly, the issues of service connection for right and left hip disorders and back disorder are REMANDED for the following actions: 1. Furnish the Veteran's entire claims file to the physician who conducted the November 2010 VA examinations for the joints and the spine and prepared the medical opinions (or a suitable substitute if that physician is unavailable). The physician must review all pertinent evidence of record and prepare an addendum opinion as to whether: a) it is at least as likely as not (50 percent probability or more) that the Veteran's post-service findings of mild degenerative changes of the right and left hips began during service or is otherwise linked to service. If the examiner believes this finding was in error, he or she should so indicate. b) it is at least as likely as not (50 percent probability or more) that the Veteran's post-service findings of minimal degenerative changes of the lumbar spine and mild or minimal diffuse spondylosis of the lumbar spine began during service or is otherwise linked to service. If the examiner believes this finding was in error, he or she should so indicate. A rationale should be given for all opinions and conclusions expressed, should take into consideration the Veteran's assertions of continuous bilateral hip and back symptoms since service and documented in-service complaints and treatment for the back, and should not be based solely on the absence of treatment records during or after service. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. If an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 2. Thereafter, the issues of service connection for right and left hip disorders and back disorder should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims 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). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs