Citation Nr: 1337374 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-32 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a bilateral wrist disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had active service from September 1999 to December 2005. He also had an unverified period of service in the Southwest Asia Theater of Operations. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran presented testimony at a personal hearing before a Decision Review Officer in December 2009. A transcript is of record. The claim was remanded by the Board in February 2013 for additional development. The actions directed by the Board have been completed and the matter returned for appellate review. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. Since the issuance of the most recent supplemental statement of the case (SSOC) in May 2013, the Veteran has submitted additional evidence directly to the Board. Since the submission of this evidence was accompanied by a waiver of RO consideration, it will be considered in this decision. 38 C.F.R. § 20.1304 (2012). FINDING OF FACT The Veteran's bilateral wrist pain has not been attributed to an identifiable disorder and has not manifest to a degree of at least 10 percent. CONCLUSION OF LAW The criteria for service connection for a bilateral wrist disorder have not been met. 38 U.S.C.A. §§ 1110, 1117 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.317 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The 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 the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in July 2008 with regard to the claim for service connection for a bilateral wrist disorder. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the agency of original jurisdiction in December 2008. The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA and identified private treatment records have been obtained and associated with the file. VA examinations with respect to the issue on appeal were obtained in December 2009 and April 2013. 38 C.F.R. § 3.159(c) (4). 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). The Board finds that the VA opinions obtained in this case are adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file. They also considered all of the pertinent evidence of record and the statements of the appellant, and the examiners provided a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). There was also substantial compliance with the Board's February 2013 remand instructions, as outstanding VA treatment records were obtained and another VA examination, namely the one conducted in April 2013, was conducted. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board acknowledges that the dates of the Veteran's service in the Southwest Asia Theater of Operations have not been verified. However, there are several post deployment medical assessments in the Veteran's service treatment record, as well as a record in his personnel file, all of which indicate that the Veteran had service in areas located within the Southwest Asia Theater of Operations to include Iraq. For the purpose of adjudicating the claim currently before the Board on appeal, the Veteran's service in the Southwest Asia Theater of Operations is conceded. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); 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, 21 Vet. App. at 309. Under legislation specific to Persian Gulf War Veterans, service connection may be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more during a specific presumption period. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases)) that is defined by a cluster of signs or symptoms; (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants presumptive service-connection. 38 U.S.C.A. § 1117(a)(2) and 38 C.F.R. § 3.317(a)(2)(i). Service connection for a disability due to an undiagnosed illness requires that such disability, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. See 38 C.F.R. § 3.317(a)(1)(ii). There cannot be any affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 C.F.R. § 3.317(c). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be provided under the specific provisions pertaining to Persian Gulf Veterans. VAOPGCPREC 8-98 (Aug. 3, 1998). In addition, there must be objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(a)(1)(b). There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. There must be a minimum of a six-month period of chronicity. 38 C.F.R. § 3.317(a)(2)(3). Compensation shall not be paid, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf war; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or events that occurred between the appellant's most recent departure from active duty in the Southwest Theater of Operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the appellant's own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(c). As noted above, the Board is conceding that the Veteran served in the Southwest Asia Theater of Operations for the purpose of adjudicating the claim on appeal. Therefore, he qualifies for consideration for presumptive service connection for disabilities resulting from undiagnosed illness or unexplained chronic multi-symptom illness. 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran claims entitlement to service connection for a bilateral wrist disorder. Although he does not claim to have incurred a specific in-service injury to his wrists, he attributes his wrist disorder to the physical demands required by his training and service in an Air Force security forces (military police) unit. The Veteran claims to have experienced bilateral wrist pain in service and asserts that his symptoms have continued since that time. The service treatment records are devoid of reference to, complaint of, or treatment for, any wrist problems. The Board acknowledges that the Veteran reported joint pain in a May 2003 post-deployment health assessment; however, there is no specific notation that this complaint involved either of the Veteran's wrists, and no referral was indicated. The Veteran denied joint problems in a subsequent August 2004 post-deployment health assessment. The post-service medical evidence of record consists of VA and private treatment records, as well as two VA examination reports. During a December 2009 VA joints examination, the Veteran reported that he had had no specific acute traumatic injury to either wrist in service, but that he had a history of chronic repetitive overuse of his wrists, including exercises in which he was dropping to the ground and landing on his hands and wrists. The Veteran indicated that he had had wrist pain ever since service and stated that it was constant, throbbing, and occasionally burning. He described it as located circumferentially around the entire aspect of the wrist with occasional radiation into the hand. Bilateral wrist examination demonstrated full painless range of motion. More specifically, supination was to 70 degrees and painless; pronation was to 80 degrees and painless; dorsiflexion was to 70 degrees and painless; palmar flexion was to 80 degrees and painless; radial deviation was to 20 degrees and painless; and ulnar deviation was to 45 degrees and painless. The examiner indicated that there was no further loss of function or range of motion with repetitions of use, nor was was there fatigue, weakness, lack of endurance, or incoordination. Median nerve compression test was subjectively positive for reproducing pain and tingling in the median nerve distribution of the hand; however the Veteran also complained of pain throughout the entire hand and wrist which was not suggestive of carpal tunnel symptoms. Phalen's testing produced pain in the wrist but did not repeat the carpal-tunnel like symptoms. The Veteran had 4+/5 strength of the bilateral wrist flexors and extensors and the finger flexors and interossei. Fine touch sensation was present in the median, radial and ulnar nerve distributions. X-ray of the wrists, which is of record, was reported as revealing no acute fractures or malalignment, though very mild loss of the radioscaphoid joint space was noted in both. The Veteran was diagnosed with bilateral wrist chronic strain; there was no finding of a peripheral nerve condition. It was the examiner's opinion that the Veteran's bilateral chronic wrist strains were less likely as not caused by or related to his in-service duties. The rationale employed was based on the absence of any acute traumatic injuries to either wrist as well as the "very subjective nature of his wrist pathology which includes pain but no clinical evidence of loss of range of motion or strength and no significant radiographic findings." A February 2010 VA record shows an assessment of wrist paresthesias, although no complaints specific to the wrists were noted at that time. An electromyography (EMG) was ordered. A March 2010 consult indicates that the Veteran was referred for evaluation of bilateral wrist paresthesias, at which time he reported bilateral wrist pain for seven to eight years, right worse than left. He reported the pain was in a circumferential pattern and described it as sharp, aching and stabbing. The Veteran reported that the pain was worse after using his wrists for an extended period of time and that "cracking" his wrists improved the pain. He also reported rare "pins and needles" sensation in the wrist but denied any weakness. The Veteran did not recall any trauma or injury, and the only thing he could possibly attribute the pain to was in-service pushups. He also denied any treatment for his bilateral wrist pain. Electrodiagnostic study and nerve conduction study (NCS) were conducted. The examiner noted that NCS was normal and indicated there was no evidence of right or left carpal tunnel syndrome. It was also noted that the history and examination was suggestive of a nonspecific musculoskeletal etiology of the bilateral wrist pain and that the Veteran reported temporary relief with wrist movement/rotation. A February 2013 private treatment record from Dr. C.J.D. at Aurora Health Care reveals that the Veteran was seen, in pertinent part, for wrist pain. He indicated that he had had bilateral wrist pain for many years with periodic numbness and tingling. He noted that his wrists hurt all day and that over-the-counter medication did not help. Physical examination revealed mild tenderness to palpation but no swelling and good range of motion. The assessment was wrist pain. Dr. D. noted that the Veteran "most likely had osteoarthritis but is quite young for this." Although other x-rays were ordered, no x-ray of the Veteran's wrists was submitted. A March 2013 VA primary care note reveals that the Veteran complained of bilateral wrist pain for several years. The pain was constant and worse with activity. He denied any acute injury. The assessment was bilateral wrist pain. The examiner noted that past EMG was negative, as were x-rays. The Veteran underwent a VA wrist conditions Disability Benefits Questionnaire (DBQ) in April 2013, pursuant to the Board's February 2013 remand. His claims folder was reviewed. Under "Diagnosis", the examiner noted that a bilateral acute wrist strain had resolved. The Veteran reported that he developed bilateral wrist pain associated with doing pushups in service. The pain was relieved with rest and was never evaluated during service. The Veteran indicated that over the past two years, he had tightness and intermittent pain in the bilateral wrists, that resting and stretching the wrists improved the pain, and that cracking his knuckles was also helpful. He denied any acute injury to either wrist to include during service. Range of motion testing revealed bilateral wrist palmar flexion to 80 degrees or greater and bilateral wrist dorsiflexion to 70 degrees or greater, all without objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation in range of motion of the wrist. There was also no functional loss or impairment of the wrist including after repetitive use. Muscle strength testing was normal for both wrists with flexion and extension. The examiner indicated that imaging studies of the wrists did not document degenerative or traumatic arthritis. The x-rays, dated in April 2013, were associated with the examination report. The examiner reported that there was no current active bilateral wrist condition; that the Veteran had normal bilateral wrists without findings on examination or x-ray to support any current wrist diagnosis; that acute strain associated with pushups during service had resolved; and that the wrist pain associated with pushups during service was most likely secondary to the Veteran's weight and strain on the wrists associated with this weight bearing. It was also noted that the tightness noted by the Veteran in his wrists is more likely due to deconditioning. A June 2013 private treatment record from Dr. C.J.D. at Aurora Health Care reveals that the Veteran was seen for follow up of bilateral wrist pain. It was again noted that the pain had been present for many years, that it was constant and could be throbbing at times, and that he had periodic tingling/numbness. The Veteran reported that he felt like this pain started during or shortly after his military service from some of the exercises that were required. Dr. D. noted that during the last visit, she had felt his symptoms were more consistent with osteoarthritis. It was also noted, however, that the Veteran reported multiple x-rays and an EMG were normal. Examination revealed tenderness to palpation of the bilateral wrists. No range of motion testing was provided. The Veteran was again assessed with wrist pain. Dr. D. noted that he had had workup for other causes of wrist pain in the past and that she "will diagnosis [sic] and treat as osteoarthritis." The preponderance of the evidence is against the claim for service connection for a bilateral wrist disorder on a direct basis. The Board acknowledges the Veteran's assertions as to in-service bilateral wrist pain in service as a result of the physical demands required by his training and service in an Air Force security forces (military police) unit, and that his symptoms have continued since that time. The Board finds these assertions to be competent. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); see also Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his or her personal knowledge and experience). It also concludes that his assertions are credible. Barr, 21 Vet. App. at 310 (finding that the Board is within its province to weigh lay evidence and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection). A current disability, however, is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, there is no evidence of a current bilateral wrist disability. The Board acknowledges the Veteran's assertion that he has been diagnosed with osteoarthritis. Although his private physician has indicated that she would treat his complaints as osteoarthritis, and even that she would diagnose his complaints as such, the actual assessment provided in the February 2013 and June 2013 records was wrist pain. See records from Aurora Health Care. In addition, there is no radiographic evidence of osteoarthritis, see VA imaging reports dated December 2009 and April 2013, and the Veteran acknowledged during private treatment that x-rays had been normal. Without evidence of a current bilateral wrist disability, service connection for a bilateral wrist disorder is not warranted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (noting that there must be a diagnosis of an underlying disability to establish a claim for service connection). Assuming that the previously diagnosed bilateral wrist chronic strain could be considered a disability, it was the examiner's opinion that the condition was less likely as not caused by or related to his in-service duties because there was no in-service injury to the wrists and because of the "very subjective nature of his wrist pathology which includes pain but no clinical evidence of loss of range of motion or strength and no significant radiographic findings." This opinion is afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The preponderance of the evidence is also against the claim for service connection for a bilateral wrist disorder on a presumptive basis under 38 C.F.R. § 3.317. Because the service treatment records reveals no complaints of pain in either wrist during service, service connection under 38 C.F.R. § 3.317 is only warranted if the evidence documents the existence of a qualifying chronic disability that has manifest to a degree of 10 percent or more. In this case, although the evidence arguably indicates that the Veteran has a qualifying chronic disability of joint pain of the bilateral wrists, the evidence does not indicate that the disability has manifested to a degree of 10 percent or more. VA regulations provide compensable ratings for ankylosis of the wrist and limitation of motion of the wrist, specifically dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm. See 38 C.F.R. § 4.71a, Diagnostic Codes 5214 and 5215 (2013). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). The evidence in this case clearly indicates that neither of the Veteran's wrists is ankylosed and that both exhibit motion beyond that required for a compensable rating, even after consideration of pain and DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). See also 38 C.F.R. §§ 4.40, 4.45. More specifically, the February 2013 private treatment record noted "good" range of motion, and when measurements were provided, the Veteran's bilateral wrist dorsiflexion was 70 degrees and bilateral palmar flexion was 80 degrees. See VA examination reports dated December 2009 and April 2013. Both of these measurements are normal. See 38 C.F.R. § 4.71a, Plate I (2013). In sum, the symptoms of the bilateral wrist joint pain do not meet the manifest to a degree of 10 percent or more requirement of 38 C.F.R. § 3.317(a)(1)(i) (emphasis added). See also 38 C.F.R. § 3.317(a)(3). Accordingly, service connection for bilateral wrist disorder under the provisions of 38 C.F.R. § 3.317 is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for a bilateral wrist disorder is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs