Citation Nr: 1305871	
Decision Date: 02/20/13    Archive Date: 02/27/13

DOCKET NO.  10-23 657	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for bilateral wrist disability.  

2.  Entitlement to service connection for bilateral ankle disability.

3.  Entitlement to service connection for a right hip disability. 


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.M. Seay, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1997 to January 2002.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran was afforded a hearing before a Decision Review Officer at the RO in December 2009.  A transcript of the hearing has been associated with the claims file.  

In an August 2011 decision, the Board referred the issues of whether there was clear and unmistakable error (CUE) in a July 2002 rating decision which denied service connection for low back strain, service connection for a bilateral knee disorder, and service connection for a left hip disorder to the RO for appropriate action.  The RO has not taken action with respect to these claims.  Therefore, again, the issues of whether there was clear and unmistakable error (CUE) in a July 2002 rating decision which denied service connection for low back strain, entitlement to service connection for a bilateral knee disorder, and entitlement to service connection for a left hip disorder are referred to the RO for appropriate action.

In August 2011, the Board remanded the issue of entitlement to service connection for a low back disability for additional development.  An August 2012 rating decision granted service connection for low back strain.  The Veteran has not expressed disagreement with the disability rating or effective date assigned to the disability.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  Therefore, the issue is not before the Board.

In September 2010, the Veteran revoked his Power of Attorney for Vietnam Veterans of America.  In November 2012, the Veteran was sent a notification letter as a National Association of County Veterans Service Officer had been involved in his case without a power of attorney.  The Veteran was notified that he could represent himself, appoint an accredited Veterans Service Organization to represent him, or appoint a private attorney, or an "agent," to represent him.  The letter notified the Veteran that if no response was received within 30 days of the letter, it would be assumed that the Veteran wished to represent himself.  The Veteran has not responded to the letter or filed a VA Form 21-22 or VA Form 21-22a.  Therefore, the Veteran is unrepresented.

The issues of entitlement to service connection for bilateral ankle disability and entitlement to service connection for a right hip disability 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.


FINDING OF FACT

With resolution of doubt in the Veteran's favor, the probative evidence indicates that the Veteran's bilateral wrist disability may not be disassociated from active service.


CONCLUSION OF LAW

A bilateral wrist disability, diagnosed as Keinbocks disease, was incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to service connection for a bilateral wrist disability, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary.


Legal criteria

Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service.                38 U.S.C.A. § 1110(West 2002); 38 C.F.R. § 3.303 (2012).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R.             § 3.303(d).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology.  Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance.  The Court set forth a two-step analysis to evaluate the competency of lay evidence.  First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence.  If so, the Board must weigh that evidence against the other evidence of record - including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury - to determine whether to grant service connection.  The Board observes that this Federal Circuit decision is nonprecedential.  However, see Bethea v. Derwinski, 2 Vet. App 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"].  The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of decisions of a superior tribunal, the Federal Circuit.




Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  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.

The medical evidence shows that the Veteran has a current disability of the bilateral wrists.  The Board acknowledges that some of the medical records indicate that the Veteran has arthralgia or pain of the wrists.  However, the February 2010 private medical record shows an assessment of early Keinbocks disease.  

The Veteran avers that the pain in his wrists onset during his period of active service.  A December 1999 service treatment record shows that the Veteran complained of bilateral wrist pain.  The Veteran reported that he had pain in both wrists when any pressure was put on his hands.  There was no known trauma.  The September 2001 report of medical history shows that the Veteran reported painful wrists.  In the examiner's summary and elaboration of all pertinent data, it was noted that the Veteran experienced pain in his wrists, ankle, and hip after prolonged exercise and running, which had been intermittent in between painful episodes.

Approximately two and one-half years after separation from active service, in a September 2004 statement, the Veteran expressed that he has experienced bilateral wrist pain since his period of active service.  The Veteran has consistently reported to his treating physicians that he has experienced chronic bilateral wrist pain since service.  The Veteran is competent to attest to the factual matters of which he had first-hand knowledge, such as the history of his bilateral wrist pain in service and observable symptoms since his military service.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible to lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The Board finds that the Veteran's statements regarding the onset and chronic symptoms of bilateral wrist pain, to be competent and credible evidence.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing).  The Board acknowledges that the first diagnosis of a bilateral wrist disability is dated in the late 2000s.  However, as noted above, the Veteran reported bilateral wrist pain during active service as noted in the December 1999 service treatment record and the September 2001 report of medical history and has stated that his pain continued until the present time.  The medical records show that the Veteran has consistently reported to his examining physicians that his bilateral wrist pain began during his period of active service.  There is no basis in the record to question the Veteran's credibility regarding his statements of continuity of symptomatology.  

The Board recognizes the conflicting medical evidence in this case regarding the etiology of the claimed bilateral wrist disability.  The Veteran's private physician who provided a diagnosis of early Keinbocks disease, acknowledged the Veteran's statements regarding the onset of his pain.  However, the private physician stated that the disability was "no one's fault" even if it had its onset during the Veteran's period of active service.  However, it is enough that the bilateral wrist disability had its onset "coincident with service in the Armed Forces" for service connection to be granted.  38 C.F.R. § 3.303(a).  "This may be accomplished by affirmatively showing inception . . . during service . . . ."  Id.  Thus, although the private physician appeared to believe the Veteran's statements regarding the onset of his bilateral wrist pain, the physician was not aware of the above standard.  In consideration of the medical evidence and the Veteran's competent and credible statements relating to the onset and continuity of his symptoms, the Board finds that service connection is warranted for the Veteran's bilateral wrist disability, diagnosed as Keinbocks disease.  

In making this determination, the Board has considered the VA examiner's opinion.  The examiner opined that the Veteran's wrist pain was not related to active service because it appeared acute and transitory.  However, the examiner did not appear to take into account the Veteran's statements that his pain has been chronic since active service.  In addition, the examiner disregarded the diagnosis of Keinbocks disease because the Veteran was not yet receiving treatment.  Simply because the Veteran is not receiving treatment for a disability, does not mean that the Veteran does not have a current disability.  The value of a physician's statement is dependent, in part, upon the extent to which is reflects "clinical data or other rationale to support his opinion."  Bloom v. West, 12 Vet. App. 185, 187 (1999).  Therefore, the examiner's opinion is entitled to little probative value.

Accordingly, the Board finds that the evidence of record is, at the very least, in equipoise with regard to this claim.  Therefore, with application of the benefit of the doubt doctrine, service connection for a bilateral wrist disability, diagnosed as Keinbocks disease, is warranted.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for a bilateral wrist disability, diagnosed as Keinbocks disease, is granted.







REMAND

During the December 2009 RO hearing, the Veteran testified that he went to the Grand Rapids, Michigan VA outpatient clinic twice.  In an October 2005 statement, in connection with his prior claim for service connection for pain in his ankles, the Veteran stated that he would be seen at the Grand Rapids, Michigan VA outpatient clinic.  However, it appears that the only VA treatment records were obtained in October 2004.  The available records contain only one record from the Grand Rapids VA outpatient clinic, which pertained to dental work.  As the Veteran has reported receiving VA treatment and the record does not reflect that such records were requested, the Board finds that the case must be remanded to obtain the identified records.  Bell v. Derwinski, 2 Vet. App. 611 (1992).

In addition, the Veteran was provided a VA examination in September 2011, as directed by the Board's August 2011 remand.  The examiner indicated that the Veteran was diagnosed with a sprain of the right hip and sprains of the bilateral ankles.  The examiner opined that the Veteran's conditions were less likely as not caused by or a result of "bilateral wrists condition, bilateral ankle condition, and right hip condition."  The rationale was that the Veteran had several evaluations regarding his joint conditions, but x-rays have not revealed arthritic changes and the joint complaints during service appeared to be acute.  The examiner opined that there did not appear to be any link between the Veteran's current arthralgia and previous military conditions and, therefore, the Veteran's polyarticular arthralgia was less likely than not caused by military service.  However, it is unclear as to whether the Veteran has current disabilities of the right hip and bilateral ankles.  The Veteran has reported that he was diagnosed with arthritis of the hips and ankles.  However, the medical evidence associated with the claims file does not reflect x-ray findings of arthritis of the hips and ankles.  Instead, the medical evidence only shows assessments of arthralgia or pain.  The VA examination report shows diagnoses of sprain of the right hip and sprain of the bilateral ankles.  However, the examiner subsequently stated that the diagnosis of "sprain" was provided because pain was not a disability.  Thus, it is unclear to the Board as to whether the Veteran has a current disability of the right hip and bilateral ankles.  Therefore, the examiner should also be asked to clarify as to whether the Veteran has a disability of the right hip and bilateral ankles.   

Accordingly, the case is REMANDED for the following action:

1.  Obtain copies of all records of VA treatment from the VA outpatient clinic in Grand Rapids, Michigan and the Battle Creek, Michigan VA Medical Center.  If requests for any treatment records are not successful, the Veteran should be informed so that he has an opportunity to obtain and submit the records himself.

2.  Refer the claims file to the September 2011 VA examiner to provide an addendum opinion.  If the examiner is unavailable, schedule the Veteran for a new VA examination.  

The examiner must address whether the Veteran has a diagnosed disability of the right hip and whether the Veteran has a diagnosed disability of the bilateral ankles.  If no diagnosis is provided, the examiner should explain why.  

If the Veteran is diagnosed with a disability, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or higher) that any bilateral ankle disorder, or right hip disorder had its onset during active service, within the one year after separation, or is otherwise related to active service.  The examiner should note the Veteran's statements regarding his continuity of pain since active service.

The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The examiner(s) should provide a complete rationale for any opinion provided.

3.  Following completion of all indicated development, the RO should readjudicate the Veteran's claims for service connection.  If the benefits sought on appeal are not granted, the Veteran should be furnished with a Supplemental Statement of the Case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations.  He should also be afforded the opportunity to respond thereto.


The appellant has the right to submit additional evidence and argument on the matter or matters 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