Citation Nr: 1417044 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 13-35 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral wrist disability. REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from October 1948 to July 1952. These matters are before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issue of entitlement to service connection for low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a bilateral wrist disability that is attributable to active service. CONCLUSION OF LAW The criteria for service connection for a bilateral wrist disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b), 5121A (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A January 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in a February 2014 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). All identified treatment records have been obtained; the Veteran did not identify any other private or VA treatment records that are pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). The Veteran's service treatment records (STRs) are not on file and according to the record, were apparently destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. The AOJ made several attempts to reconstruct the pertinent STRs, but was unsuccessful. The Veteran was notified of this issue in May 2011; a formal finding on the unavailability of the STRs was issued the same month. The Veteran has not advised VA of any STRs in his possession. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A medical opinion has not been obtained for the Veteran's claims of service connection for a bilateral wrist disability. However, there is no current diagnosis of a bilateral wrist disability, or probative evidence of persistent or recurrent symptoms of such a disability following discharge from active service. Although the Veteran is competent to report symptoms of wrist pain, he has not done so. Consequently, an examination is not required. The Board is therefore satisfied that the duties to notify and assist have been met. Law and Regulations In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Facts and Analysis The Veteran asserts that he injured his wrists in a fall during training. Although the STRs are not available, the Veteran is competent to report that he injured his wrists during service. Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). There is nothing in the record which diminishes the credibility of his assertions as to a bilateral wrist injury in service. Accordingly, the Board finds that the Veteran did injure his wrists in a training accident during service. The Veteran's July 1952 separation examination is of record. An evaluation of the Veteran's wrists was normal. There are no reports of a history of bilateral wrist injury. The Veteran filed a claim for service connection for a bilateral wrist disability in January 2010. Although he communicated a desire to claim service connection for a bilateral wrist disability, he has not described symptoms of this disability, such as pain or abnormal motion of the wrists, nor has he alleged a continuity of wrist symptomatology since service In a January 2010 statement, the Veteran noted that his wrist sprains had healed, whereas a concurrent low back injury had not. There is no medical evidence of treatment for a bilateral wrist disability. Upon review, the Board finds that the evidence is against a finding that the Veteran has a current bilateral wrist disability as a result of his active service. The Veteran has not been diagnosed with or treated for a bilateral wrist disability, nor has he reported symptoms of wrist abnormalities occurring since service. The Veteran is competent to attest to observations of symptoms of wrist pain, abnormal motion, and other similar symptoms. Layno, 6 Vet. App. at 69 (1994); 38 C.F.R. § 3.159(a)(2). However, he has not done so. Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability. See 38 U.S.C.A. § 1110, 1131 (West 2002). In the absence of proof of a current disability, the claim of service connection for a bilateral wrist disability may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. ORDER Service connection for a bilateral wrist disability is denied. REMAND The Veteran has been diagnosed with L4-5 spondylolisthesis and L5-S1 lumbar stenosis. He asserts that his low back disability had its onset after a fall during training, and that he has had continuous back pain ever since. The Veteran is competent to testify as to onset and frequency of back pain. Layno, 6 Vet. App. at 69 (1994). There is nothing in the record which diminishes the credibility of his statements in that record. Despite the evidence pertinent to current diagnoses and in-service events, the Veteran has not been afforded a VA examination of his low back disability. Thus, there is insufficient medical evidence for VA to make a decision on his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Upon remand, a VA orthopedic examination must be scheduled to determine the nature and etiology of his low back disability. The Veteran has been treated for a low back disability by several private physicians who are affiliated with St. John Hospital and Medical Center in Detroit, Michigan. Records from this facility must therefore be obtained, pending any necessary updated release from the Veteran, as they are likely relevant to his claim. 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following action: 1. After securing any necessary updated authorization, obtain all records of the Veteran's treatment for back pain from St. John Hospital and Medical Center in Detroit, Michigan. If any records cannot be obtained after reasonable efforts have been made, notify the appellant of the attempts made and allow him the opportunity to obtain the records. 2. Schedule an examination of the Veteran to determine the nature and etiology of his low back disorder. The claims folder and a copy of this remand must be provided to the examiner. All clinically indicated tests and studies should be conducted. The examiner must provide a diagnosis for each low back disability found. He/she must then indicate whether it is at least as likely as not (probability of 50 percent or greater) that each disorder had its onset in service or is etiologically related to the Veteran's period of active service. The examiner is advised that the Veteran is competent to report an injury to the back during service and that the Board finds the Veteran's report of an injury in service to be credible. The examiner must also set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his period of military service. If the examiner determines that he/she cannot provide an opinion on the issue without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The AOJ must ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained. 3. Then, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant 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 matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs