Citation Nr: 1337422 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 12-04 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for bilateral wrist arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from September 1943 to December 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In connection with this appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in March 2013. A transcript of the hearing is associated with the claims file. This case has previously been before the Board, most recently in July 2013, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). FINDING OF FACT It is at least as likely as not that bilateral wrist arthritis is etiologically related to the Veteran's active service. CONCLUSION OF LAW Bilateral wrist arthritis was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim of entitlement to service connection for a bilateral wrist disability. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of that service, that disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of that disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, set forth in 38 C.F.R. § 3.309, to include arthritis, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309 (2013); Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before VA with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has asserted that he has bilateral wrist arthritis as a result of his active service. Specifically, the Veteran has reported that he "wore out" his wrists in service lifting heavy arms munitions and loading them into the large guns aboard the USS California during combat operations during World War II (WWII). The Veteran reported that the heavy arms munitions weighed 54 pounds each and that he spent two years in that sort of military occupation. A review of the service personnel records shows that the Veteran was stationed aboard the USS California duirng WWII and that the USS California was heavily involved in combat operations in the WWII Pacific Theater. A review of the Veteran's service separation form shows that his primary military occupational specialty (MOS) during active service was fireman. However, the Veteran's reports of also helping with loading heavy arms munitions is not inconsistent with combat service aboard a naval vessel. In the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002); Libertine v. Brown, 9 Vet. App. 521 (1996); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The phrase engaged in combat with the enemy requires that the Veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (1999); 65 Fed. Reg. 6256 (2000).;Gaines v. West, 11 Vet. App. 353 (1998). As the Veteran's report of sustaining an overuse injury to his wrists as a result of loading heavy arms munitions during combat is consistent with the circumstances of his service, the Board concedes that the wrist injury occurred as described by the Veteran. A review of the service medical records is silent for complaints of wrist pain while the Veteran was in active service. However, the Board notes that the Veteran is competent to report when he first experienced wrist pain and that his symptoms have continued since his separation from active service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board has found the Veteran to be credible. A review of the post-service medical evidence of record shows that since his separation from active service, the Veteran has made sporadic complaints of wrist pain to his various treatment providers. In an April 1984 treatment record, the Veteran was noted to have right carpal tunnel syndrome, however, there were no electromyography (EMG) or nerve conduction study (NCS) reports accompanying that diagnosis. In a July 1984 treatment note, the Veteran was noted to have arthritis, but there were no accompanying X-ray reports. In a September 2003 treatment record, it was noted that the Veteran reported bilateral wrist pain. At a June 2013 VA examination, the Veteran reported the overuse injury to the wrists and reported that he first experienced wrist pain in 1945, during active service. X-rays taken at the examination revealed arthritis in both wrists. The examiner diagnosed bilateral wrist arthritis. The examiner noted that he could not provide an opinion regarding the etiology of the Veteran's bilateral wrist arthritis without resorting to speculation. The examiner noted that there was no mention of wrist pain in the service medical reocrds and the first mention of wrist problems he could find was not until September 2003. Additionally, the examiner noted that the Veteran worked as a contractor following his separation from active service. In September 2013, the June 2013 VA examiner provided an addendum opinion following additional review of records. At that time, the examiner reiterated that he could not provide an opinion as to the etiology of the Veteran's bilateral wrist arthritis without resorting to speculation. An examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Further, in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Jones v. Shinseki, 23 Vet. App. 382 (2010). In this case, the VA examiner reported that he was unable to provide an opinion without resorting to speculation and based this on a finding that there were no treatment notes in the service medical records documenting wrist pain. The absence of medical records cannot be the sole basis for a negative etiological opinion, especially when a Veteran, as is the case here, has competently reported that he first experienced wrist pain in service and that those symptoms have continued since separation from service. For that reason, the June 2013 opinion and September 2013 addendum opinion are an inadequate basis upon which to base a denial of entitlement to service connection. The Board notes that while there is no competent medical opinion linking the Veteran's current diagnosis of bilateral wrist arthritis to his overuse injury during active service, 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); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). The Veteran is competent to identify wrist pain and report that his symptoms started in service and continued since that time. While he is not competent to establish a diagnosis of arthritis, as that requires X-ray evidence, his statements of continuity of symptoms are sufficient to establish a link between his current diagnosis of bilateral wrist arthritis and his overuse injury during active service. Arthritis is a chronic disease and the Veteran has provided competent lay testimony of a continuity of symptomatology of wrist pain, later diagnosed as arthritis. Accordingly, the Board finds that the evidence shows that it is at least as likely as not that bilateral wrist arthritis was incurred in service. Therefore, the claim of entitlement to service connection for bilateral wrist arthritis is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral wrist arthritis is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs