Citation Nr: 1336134 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 08-02 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right wrist disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran has served in the Alabama Army National Guard since August 1985, including on active duty for training (ACDUTRA) from September 1985 to February 1986, on active duty (AD) performed under Title 10 orders from March 2003 to May 2004, and on AD from May 2009 to June 2010. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an intervening January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim in November 2011 to obtain additional service treatment records (STRs) and other pertinent evidence. That development since has been completed, now allowing the Board to decide this claim. An additional claim of entitlement to service connection for an acquired psychiatric disorder manifested by anxiety or nervousness was also previously on appeal to the Board and remanded for further development in November 2011, along with this remaining claim. But service connection for this psychiatric disorder since has been granted in a February 2013 rating decision. The Veteran has not, in response, separately appealed either the initial rating or effective date assigned for this now service-connected disability. Therefore, the claim concerning that disorder has been resolved, so is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability or effective date). FINDING OF FACT The Veteran's current right wrist tendonitis first manifested during his active military service, so dates back to his service. CONCLUSION OF LAW His right wrist disability - namely, this tendonitis - was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), and the implementing VA regulations are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veteran's claim of entitlement to service connection for a right wrist disorder is being granted rather than denied. Therefore, the Board need not discuss whether there has been compliance with the VCAA's duty-to-notify-and-assist obligations because even if the Board were to assume, for the sake of argument, there has not been, this still ultimately would be inconsequential and therefore only amount to at most nonprejudicial, i.e., harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009). See also 38 C.F.R. § 20.1102. II. Analysis In statements received in November 2011 and March 2013, the Veteran asserted that his right wrist pain began during his active military service in August 2003 after lengthy and continuous use of a handsaw. For the following reasons, the Board finds that service connection is warranted. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection may be established on a direct basis with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The evidence shows the Veteran has right wrist tendonitis that first manifested during the period of active service that occurred from March 2003 to May 2004. Specifically, the STRs for this period of service reflect that in September 2003 he reported a month-long history of sharp pain in his right hand radiating up through his wrist and towards his elbow. He again reported right wrist pain in November 2003, and in an April 2004 post-deployment questionnaire. In the latter document, he described ongoing intermittent pain since August 2003 after using power tools. X-rays of his right wrist at the time were normal, and his symptoms were diagnosed as a probable strain. Similarly, an April 2004 occupational therapy consultation report reflects that he complained intermittent right wrist pain that had been present for eight months after using a handsaw all day. X-rays did not reveal a fracture or dislocation. The treating medical personnel diagnosed rule-out a deep ganglion cyst. The Veteran was instructed to wear a splint and perform physical therapy exercises. Thus, his STRs show ongoing right wrist pain after intensive use of a handsaw beginning in August 2003 and continuing throughout the remainder of that period of service. His post-service records show his right wrist pain has persisted and been diagnosed as tendonitis. In a July 2004 private treatment record, he again reported right wrist pain since August 2003 after using a saw for eight hours a day cutting lumber. X-rays showed a slightly widened scapholunate injury. Extensor tendonitis of the right wrist was diagnosed. He continued to report right wrist pain in annual Army medical reports and was placed on physical profile due to his right wrist pain in June 2007. In a November 2011 VA examination report the examiner diagnosed chronic tendonitis of the right wrist, but opined that it was not related to the Veteran's service as there was no documentation at the time that he had right wrist problems during service. However, since that examination was performed, additional STRs pertaining to the Veteran's period of active service from March 2003 to May 2004 have been associated with the file for consideration. And these records, which clearly show ongoing right wrist problems, were not available to that VA examiner. Thus, the examiner's opinion has no probative value, as it was based on the erroneous premise that right wrist symptoms did not manifest in service, contrary to this other evidence now of record. See Reonal v. Brown, 5 Vet. App. 458 (1993). Although a medical opinion supporting a relationship to service is not of record, there is sufficient evidence to find a medical nexus between the Veteran's current right wrist tendonitis and his right wrist symptoms in service. Specifically, the evidence shows that following intensive use of his right wrist, he had ongoing wrist pain for almost a year during his active service, which was diagnosed shortly after service as tendonitis. He has continued to have right wrist problems in the ensuing years, and his right wrist was again diagnosed with chronic tendonitis during the pendency of this claim. Thus, the presence of right wrist pain during and ever since service links his current tendonitis to the tendonitis diagnosed shortly after service, as it appears that both diagnoses stem from the same stream of symptoms. See C.F.R. § 3.303(d). Accordingly, the evidence satisfies all three Shedden elements, and therefore service connection for right wrist tendonitis is established. See Shedden, 381 F.3d at 1166-67; 38 C.F.R. § 3.303(a). Certainly, the evidence is at least in equipoise as to whether his right wrist tendonitis was incurred during his active service. Consequently, at worst, the benefit-of-the-doubt rule still applies, allowing for granting of the claim. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim of entitlement to service connection for a right wrist disability, namely, for tendonitis, is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs