Citation Nr: 1337241 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 13-09 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a broken left wrist. 2. Entitlement to service connection for a dental disability. ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to January 1985, with additional, unverified service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's claim of entitlement to service connection for a dental disability is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). As such, this issue has been raised by the record. Because it has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a dental disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The most probative evidence of record does not demonstrate that the Veteran has a current left wrist disability causally related to active duty. CONCLUSION OF LAW Residuals of a broken left wrist were not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service connection claim, including: (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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman, 19 Vet. App. at 486. 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). An October 2008 letter provided notice to the Veteran regarding what information and evidence were needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of how VA assigns a disability rating and an effective date and the type of evidence which impacts such. Because VCAA notice in this case was completed prior to the initial RO adjudication, the timing of the notice complies with the express requirements of the law as found in Pelegrini. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. VA has also satisfied its duty to assist the Veteran at every stage of this case. The Veteran's claims file contains his service treatment records and VA treatment records pertinent to the claim decided herein. In addition, the RO requested identified medical records from the Beachton Denture Clinic, Tallahassee VA Outpatient Clinic, and VA Medical Center in Lake City, Florida. The record includes negative responses from each of these facilities. In February 2010, the Veteran underwent VA examination in connection with his claim of entitlement to service connection for residuals of a broken left wrist. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Upon review, the Board finds the February 2010 VA examination adequate for the purpose of determining service connection. The VA examiner reviewed and recorded the Veteran's relevant medical history and lay statements, completed a physical examination, and provided an opinion as to the clinical findings. In addition, the VA examiner provided an adequate rationale for the opinion stated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). As such, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met with respect to the issue decided herein. 38 C.F.R. § 3.159(c)(4). As all relevant facts have been properly and sufficiently developed in this appeal, no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). As residuals of a broken left wrist or a wrist disability are not listed as chronic diseases under 38 C.F.R. § 3.309, the provisions of 38 C.F.R. § 3.303(b) are not applicable. 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). In relevant part, 38 U.S.C. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. at 309. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran be discussed in detail. Rather, the 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 decided herein. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that he has a current disability that involves residuals from a left navicular fracture of the left wrist that occurred during active duty in July 1983. He contends that he currently has pain and reduced range of motion as the result of the in-service injury. Service treatment records show the Veteran was diagnosed with a left navicular carpal fracture of the left wrist in July 1983 and indicate that he was treated for this condition through November 1983. In support of his claim, the Veteran submitted undated pictures showing him wearing a cast on his left arm. The available VA treatment records dated from March 2010 through November 2010 do not demonstrate complaints of, treatment for, or a diagnosis of a left wrist disability, to include residuals from a broken left wrist. On VA examination in February 2010, the Veteran reported fracturing his left wrist in Germany during active duty and wearing a cast on his left wrist for two to three months. He stated that he had experienced mild weakness and pain with cold weather since the in-service injury. The Veteran also reported symptoms of stiffness, decreased speed of joint motion, and moderate flare-ups of joint disease that occurred every two to three weeks and lasted for hours. He stated that heavy lifting and carrying precipitated flare-ups, as well as cold, damp weather. The Veteran reported that the condition affected the motion of the joint. On physical examination, there was tenderness and guarding of movement. Left dorsiflexion was to 65 degrees, with pain beginning at 60 degrees and ending at 65 degrees; left palmar flexion was to 75 degrees, with pain beginning at 70 degrees and ending at 75 degrees; left radial deviation was to 20 degrees; and left ulnar deviation was to 45 degrees. There was objective evidence of pain with active motion and objective evidence of pain following repetitive motion but no additional limitations after three repetitions of range of motion. There was no joint ankylosis. Passive range of motion was unchanged from active range of motion and on repetitive testing. Range of motion values were unchanged from baseline values reported, and no pain, fatigue, weakness, or incoordination was noted. The VA examiner diagnosed status post left wrist fracture with mild residual pain and tenderness. The VA examiner stated that a more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis. The VA examiner opined that it was less likely as not that the Veteran's current left wrist condition was caused by or a result of his in-service left wrist fracture. The VA examiner found there was no objective evidence found on record review to support that this had been a chronic condition. There was also no objective evidence of aggravation. The VA examiner reported that the opinion was based on a review of medical literature and the medical records as well as clinical experience. In his April 2010 substantive appeal, the Veteran asserted that the pain and reduced range of motion could only be caused by the broken wrist that occurred while he was on active duty. As service treatment records reflect a diagnosis of and treatment for a left navicular carpal fracture of the left wrist, the Board finds the Veteran has established an in-service injury for the purpose of service connection. Here, however, it has not been established that the Veteran has a current disability for which service connection may be granted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the veteran has the disability for which benefits are being claimed. See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Here, the Board finds it significant that the February 2010 VA examiner diagnosed mild residual pain and tenderness. Pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Of greater significance, the February 2010 VA examiner did not relate any current left wrist disability with active duty, to include the in-service injury. The VA examiner opined that it was less likely as not that the Veteran's current left wrist condition was caused by or a result of his in-service left wrist fracture. The VA examiner based the opinion on the absence of any objective evidence showing the condition was chronic or aggravated by active duty. The Board acknowledges the Veteran's assertions that he has experienced residuals of pain and reduced range of motion since the in-service injury and recognizes that he is competent to provide evidence about the symptoms he experiences. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation). While the Veteran's statements have been deemed competent evidence as to the presence of observable symptoms, however, the Board must also determine whether such evidence is credible. Id. In weighing the credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Further, the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 Vet. App. 1331 (Fed. Cir. 2006). Here, the medical evidence does not support the Veteran's assertions that he has experienced pain and reduced range of motion since the in-service injury. The Veteran's service treatment records do not demonstrate any further complaints of or treatment for the left wrist subsequent to November 1983, which the Board finds significant considering the Veteran had almost two years of active duty after that date. The medical records also do not demonstrate any complaints of or treatment for residuals of a broken left wrist following his separation from service, and the Veteran has not asserted that he sought treatment for a broken left wrist since separation from service. In fact, the first assertion of a left wrist disability is found in the Veteran's October 2008 claim, approximately 23 years after his separation from service. This prolonged period without complaints or treatment is evidence for consideration in determining continuity of symptomatology and weighs against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Therefore, the Board finds the Veteran's lay statements are of little probative value. Furthermore, as stated above, the provisions of 38 C.F.R. § 3.303(b) are not applicable in this case as residuals of a broken left wrist or a wrist disability are not listed as chronic diseases under 38 C.F.R. § 3.309. In this case, the only competent medical opinion of record does not support a relationship between any residuals of a left broken wrist and active duty, to include any injury incurred therein. In this respect, the Board finds the opinion provided by the February 2010 VA examiner more probative than the Veteran's assertions. The VA examiner reviewed the Veteran's relevant medical history and his lay statements concerning his post-service symptoms. The VA examiner also provided an opinion as to the clinical findings and an adequate rationale for the opinion stated, relying on and citing to the records reviewed and pertinent medical literature. Nieves-Rodriguez, 22 Vet. App. 295 (2008). Again, the Veteran is competent to testify as to symptoms that are non-medical in nature; however, a layperson without medical training is not qualified to render a medical diagnosis of a left wrist disability. See 38 C.F.R. § 3.159(a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the Board finds the relationship between any current left wrist disability and active duty, to include any injury incurred therein, is not something for which a layman is competent to provide an opinion. See Barr, 21 Vet. App. at 307. The evidence does not show that the Veteran possesses the requisite training or credentials needed to render a competent opinion as to the medical diagnosis of or causation of a left wrist disability. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the lay opinions provided by the Veteran do not constitute competent medical evidence and lack probative value. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for residuals of a broken left wrist. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for residuals of a broken left wrist is denied. REMAND As noted above, the RO sent a VCAA notice letter to the Veteran in October 2008 which notified him of the criteria necessary to substantiate a claim for direct service connection as well as how VA determines disability ratings and effective dates under the Court's holding in Dingess/Hartman. However, this letter did not inform the Veteran of the requirements of the VCAA with respect to the dental-specific requirements. Although a January 2013 statement of the case notified the Veteran of these requirements, the record does not show that the Veteran's claim was re-adjudicated thereafter. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that a notice defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim). In addition, the Veteran has not been represented by an accredited representative at any time during his appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Finally, the record does not clearly demonstrate that the Veteran is aware that compensation may only be paid for dental disabilities resulting from in-service trauma. As such, the Board finds the Veteran would be prejudiced by Board adjudication of this issue prior to fulfillment of the notice requirements. Therefore, this notice defect must be cured on remand. In addition, the record shows the RO issued a formal finding of unavailability for the Veteran's service dental treatment records in September 2009. A December 2008 response from the Personnel Information Exchange System (PIES) suggested that the RO make another request using Code 11 so that the request would go through the Defense Personnel Records Information Retrieval System (DPRIS). A July 2009 PIES request and response show the RO utilized Code 13 to request the service dental treatment records. As such, on remand the RO should submit an additional PIES request utilizing the appropriate code. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a fully-compliant VCAA notice letter with respect to his claim of entitlement to service connection for a dental disability. 2. Initiate a PIES request for the Veteran's service dental treatment records to DPRIS using the appropriate code (Code 11). The PIES request and response(s) thereto must be documented of record. 3. Complete any additional development required with respect to the claim, to include a VA examination, if deemed necessary upon receipt of any new, pertinent evidence. 4. Thereafter, re-adjudicate the issue of entitlement to service connection for a dental disability. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran the appropriate period to respond prior to returning the case to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs