Citation Nr: 1426158 Decision Date: 06/10/14 Archive Date: 06/16/14 DOCKET NO. 10-28 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left wrist disability, specifically, status post left radial distal fracture with non-union of the ulna styloid. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran had active military service from April 1972 to June 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in June 2009. The Veteran requested a Board hearing to be held in St. Petersburg, Florida, and this hearing was scheduled for June 2013. However, the Veteran failed to appear for the scheduled hearing without providing cause for doing so, therefore his request for a hearing is considered withdrawn. 38 C.F.R. § 20.702(d) (2013). In October 2013, the Board requested a medical opinion from the Veterans Health Administration (VHA). In April 2014, a VA physician provided the requested opinion. In April 2014, the Veteran and his representative were sent a copy of the opinion and informed that they had 60 days to submit further evidence or argument. See 38 C.F.R. § 20.903 (2013). VA sent the notice to both the current address on record for the Veteran and his prior address of record. Both letters were returned as undeliverable. Because the Veteran's claim is being granted and, so, the Veteran cannot be prejudiced by any lack of adequate notice, the Board need not determine whether additional or alternative means of notification are warranted under the facts of this case. Shinseki v. Sanders, 556 U.S. 396, 407-11 (2009) (applying harmless error analysis). FINDINGS OF FACT 1. Upon entry into service, the Veteran had a pre-existing left wrist disability, specifically, residuals of a left radial distal fracture with non-union of the ulna styloid. 2. According to the medical and other evidence now in the file, it is just as likely as not the left wrist disability was permanently aggravated as a result of the Veteran's active duty service. CONCLUSION OF LAW The criteria for service connection based on aggravation of a pre-existing left wrist disability have been met. 38 U.S.C.A. §§ 1111, 1153, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.322 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. See 38 U.S.C.A. § 1111 (West 2002). The term "noted" denotes only such conditions that are recorded in examination reports. 38 C.F.R. § 3.304(b). The existence of a condition prior to service reported by the Veteran as medical history does not constitute notation of that condition, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1). Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Id. Upon enlistment in April 1972, the Veteran had an obvious defect in his left wrist that was noted on his entrance Report of Medical Examination. X-rays revealed "non-union of ulnar styloid" and "minor malunion" of the radius. See Orthopedic Consultation Sheet dated April 1972. The Veteran claimed, at that time, that his prior injury caused no impairment. The left wrist condition was described as "asymptomatic" and was considered not disabling on the initial Report of Medical Examination. On the basis of the physical examination and diagnostic tests, the Veteran was considered fit for enlistment. Less than two weeks after the initial examination, the Veteran went to sick call complaining of weakness and pain in his left arm. His complaints resulted in a second orthopedic consultation. The report on the second orthopedic examination indicates that the Veteran suffered from residual weakness and pain due to a poorly healed left wrist fracture from years before. X-rays again showed malunion of the left distal radial fracture and non-union of the ulnar styloid. On the basis of this report, a Medical Board prepared a report recommending honorable discharge of the Veteran on the basis that the Veteran had an unacceptable defect and, therefore, had been enlisted in error. The May 1972 Medical Board Report indicates that the Veteran had stated that his preexisting left wrist condition had caused, prior to enlistment, "occasional pain and swelling in the left wrist especially with exercise." The Medical Board noted that, after enlistment, the Veteran "continued to notice pain and swelling in the wrist with PT and has been unable to do the training." The Veteran was informed of the medical board's findings in May 1972, but declined to submit a statement in rebuttal. The Veteran was formally discharged in June 1972. The Board finds that the above-described evidence establishes that a pre-existing left wrist condition was noted at the Veteran's entrance into service. The presumption of soundness, therefore, does not apply. 38 C.F.R. § 3.304(b). The Veteran may still be entitled to compensation if the evidence establishes that a pre-existing left wrist condition, including malunion of the radius and non-union of the ulnar styloid, was aggravated by his military service. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (2002); see also Davis v. Prinicipi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (2013). A mere recurrence of manifestations of the pre-service condition does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability. Davis, 276 F.3d at 1345. Therefore, evidence of temporary flare-ups symptomatic of an underlying preexisting condition, alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C. § 1153 unless the underlying condition worsened. Id. at 1346-47. The Veteran has asserted, most notably in his VA treatment records of August 2009 and July 2010, that he injured his left wrist during active duty which aggravated his preexisting left wrist condition. Further, as noted, the examiner at enlistment reported that the Veteran's left wrist condition was "asymptomatic" and not disabling. Therefore, the Veteran has submitted evidence that there was, at least, an increase in symptoms associated with his preexisting left wrist condition. As already noted, though, a "recurrence of manifestations" or "evidence of temporary flare-ups symptomatic of an underlying preexisting condition" will not satisfy the Veteran's burden to demonstrate an increase in disability. Davis, 276 F.3d at 1345-47. The Board, though, is not competent to make a medical determination as to whether the pain and swelling reported by the Veteran in May 1972 represented a "mere recurrence" of symptoms typical of his preexisting left wrist condition or, instead, an increase in his disability. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). As noted in the introduction, the Board requested a medical opinion from the VHA in October 2013 to help resolve this issue. In April 2014, the VA physician indicated that he could not provide an opinion regarding whether the Veteran suffered an increase in the severity of his pre-existing left wrist condition during his active service. The VA physician stated the lack of an adequate induction examination describing the precise nature and severity of the Veteran's pre-existing left wrist disability prevented the VA physician from providing the requested opinion. As such, the Board is left almost where it started. Rather than remand the matter for additional development, the Board finds that there are sufficient facts to favorably apply the benefit-of-the-doubt doctrine. The determinative question remains whether the pre-existing left wrist disability increased in severity during the Veteran's active service. The supporting evidence includes the Veteran's lay statements, an induction examination notation that the left wrist condition was "asymptomatic", and the service treatment records documenting in-service complaints of pain and weakness in the left wrist. The Veteran's complaints could be characterized as describing only a temporary worsening of symptoms, rather than a permanent increase in severity. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (denying aggravation based on indications that there had been no substantial change during service in the Veteran's pre-existing knee condition despite some in-service flare-ups). This characterization finds some support in the fact that the Veteran failed to seek medical treatment for many years after discharge. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). However, the evidence necessary to determine, with the requisite degree of likelihood, whether there was an increase in severity, rather than merely a flare-up, is missing from the record. See April 2014 VHA Letter Opinion. The government is responsible for creating and maintaining adequate medical records during service. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994) ("By conducting both induction and separation physical examinations, the government is in the best position to have reliable medical evidence about any changes in a preexisting condition. If it does not, it cannot penalize the veteran in favor of whom all doubts are to be resolved."). The available records do show in-service complaints of increased symptoms of a left wrist disability and that the Veteran was discharged as a result of these increased symptoms. Together, these facts provide some evidence in support of finding aggravation. The evidence that would either prove or negate the Veteran's claim with the requisite degree of probability is unavailable due to inadequately detailed entrance and exit examinations. The government, rather than the Veteran, must bear the consequences of this lack of necessary medical evidence. Jensen, 19 F.3d at 1417; see also 38 C.F.R. § 3.322 ("If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made."). The Board finds that the evidence is at least in equipoise, so entitlement to service connection for aggravation of a pre-existing left wrist disability is granted. Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to service connection for a left wrist disability is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ MATTHEW D. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs