Citation Nr: 1602661 Decision Date: 01/28/16 Archive Date: 02/05/16 DOCKET NO. 13-28 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a right wrist disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from April 1989 to August 1989 and again from November 2001 to March 2002. It also appears that he had service with the National Guard between his two periods of active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In June 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). A review of the record shows that the Veteran had surgery to repair a scaphoid fracture of the right wrist sometime between 1986 and 1988, prior to his first period of active service, and had surgery for right wrist scaphoid nonunion with advanced collapse again in September 2005. Specifically, a March 2005 private treatment record shows a history of scaphoid fracture with an attempt at surgical repair in 1988 and a September 2005 private operative report shows that the Veteran underwent right scaphoid excision with four corner fusion. Service treatment records (STRs) from the Veteran's first period of service confirm that the Veteran had a history of right wrist problems prior to his first period of service. Specifically, the Veteran's March 1989 enlistment examination shows a surgical scar on the right wrist and history of right wrist surgery in 1986. Also, in a March 1989 report of medical history the Veteran reported a history of bone graft from his hip to his wrist in 1986. STRs from the Veteran's National Guard service also show a pre-existing right wrist disorder. Specifically, a May 1994 report of medical history shows "nonunion scaphoid - some pain - minor limitations" and "arthritis in R wrist." During the June 2015 Board hearing, the Veteran testified that, prior to his military service, at the age of 15 or 16, he fractured his right wrist playing football. He indicated that he recovered from his pre-service right wrist injury but injured his right wrist again during his second period of service, sometime between November 2001 and March 2002. Specifically, the Veteran testified that he twisted his right hand during an obstacle course. He indicated that he immediately experienced swelling and pain in his right hand and was treated at the emergency room at Fort Benning on a few occasions where his right wrist was x-rayed and put in a cast for three to four weeks. He also indicated that he was not given a profile for this injury. In support of his claim, the Veteran submitted an August 2015 statement from Dr. C.D.H. Dr. C.D.H. wrote that he first began treating the Veteran for wrist pain in December 2008 which was described as being present since the Veteran's discharge from military service. The Veteran reported that in 1987, prior to his military service, he experienced a scaphoid fracture that required treatment with a bone graft from his hip bone. This was treated successfully and neither long term physical therapy nor pain management was required. He was able to return to full use of his wrist after recovery. The Veteran's wrist did not give him any additional pain or complications until he reinjured the wrist in October 2001. At that time, the Veteran was activated for training and deployment at Fort Benning, Georgia, at which time he fell on his out-stretched hand while traversing an obstacle course. He immediately felt severe pain and noted immense swelling at the wrist at the prior site of his injury. He was seen in the emergency department where X-rays were performed. His wrist was immobilized with a removable splint and pain management was provided. Following this in-service injury, the Veteran's right wrist progressively developed more pain and stiffness, especially after any use in physical activity. It was noted that the Veteran underwent a carpal tunnel release that was felt to be related to the right wrist injury in 2002. Unfortunately, the 2002 procedure did not relieve the pain/stiffness of the right wrist so the Veteran underwent a "four corner fusion" of the scaphoid bone in 2005. Dr. C.D.H. concluded that it was at least as likely as not that the Veteran reinjured his scaphoid bone during his military service at Fort Benning. Significantly, Dr. C.D.H. wrote that the description of the incident and supporting documentation suggests that this was a repeat scaphoid fracture. Dr. C.D.H. did indicate that, unfortunately, he did not have the military records nor the x-ray performed at the time of the injury to confirm this. Nevertheless, the standard of care for this type of injury is a thumb spica-type splint for a minimum of six weeks which, as likely as not, was how the Veteran was treated. Dr. C.D.H. wrote that this injury has a relatively high probability of non-union with a high number of individuals having eventual disability. Although the Veteran had a prior injury of his scaphoid that may have predisposed him to injury, it was the Veteran's active duty itself and the fact that he fell onto his outstretched hand during an obstacle course that caused the re-injury during his military service. Initially, a review of the record includes STRs from the Veteran's first period of service but is negative for STRs from the Veteran's second period of service. On remand, an attempt should also be made to obtain a complete copy of the Veteran's STRs and service personnel records (SPRs) for his periods of service, particularly his most recent period of active duty from November 2001 through March 2002. Also, a review of the record shows that the Veteran was treated for a right wrist disorder and even underwent surgery on his right wrist sometime in 2002. Significantly, the Veteran submitted a signed VA Form 21-4142 "Authorization and Consent to Release Information to the Department of Veterans Affairs" in February 2012 authorizing VA to obtain records from Central Utah Clinic dated in 2002 regarding the right wrist. While requests for these records were sent in July and September 2012, no response was ever received and the earliest post-service treatment records in the claims file are dated in March 2005. On remand, an attempt should be made to obtain these and any other outstanding private treatment records, particularly records dated in 2002, regarding the Veteran's right wrist. Finally, the Veteran has not yet been afforded a VA examination with regard to his claimed right wrist disorder. Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). The claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. In light of the private treatment records showing problems with the right wrist prior to the Veteran's active service, the Veteran's contention that he reinjured his right wrist during active service and has experienced right wrist problems continuing since service, and evidence of a current diagnosis of right wrist scaphoid nonunion with advanced collapse, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature of the Veteran's right wrist disorder and whether any current right wrist disorder is related to the Veteran's military service. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to identify any healthcare provider who treated him for his claimed right wrist disorder since service, particularly private treatment records from Central Utah Clinic dated from January through December 2002. After obtaining any necessary authorization from the Veteran, obtain all identified records. For private records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, after securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain any outstanding STRs and/or SPRs, particularly records pertaining to the Veteran's second period of service from November 2001 through March 2002. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran and his representative must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining any outstanding treatment records, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's right wrist disorder. The claims file must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed. All indicated tests should be performed. The examiner should opine whether there is clear and unmistakable evidence that the Veteran's right wrist disorder pre-existed his active service beginning April 1989 and/or November 2001. (i) If there is clear and unmistakable evidence that the right wrist disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing right wrist disorder did not undergo an increase in the underlying pathology (was not aggravated) during service. If there was an increase in the severity of the Veteran's right wrist disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that the right wrist disorder pre-existed service, then the examiner should opine whether it is at least as likely as not (at least a 50-50 probability) that the Veteran's right wrist disorder is related to his military service, and whether he had arthritis of the right wrist within one year after August 1989 and/or March 26, 2002, his date of separation from his periods of active service, and, if so, to describe the manifestations. In offering the foregoing opinions, the examiner's attention is specifically directed to (i) the Veteran's March 1989 enlistment examination showing a surgical scar on the right wrist a history of right wrist surgery in 1986; (ii) a March 1989 report of medical history showing a history of bone graft from his hip to his wrist; (iii) a May 1994 report of medical history showing "nonunion scaphoid - some pain - minor limitations" and "arthritis in R wrist;" (iv) a March 2005 private treatment record showing a history of scaphoid fracture with an attempt at surgical repair in 1988; (v) a September 2005 private operative report showing that the Veteran underwent right scaphoid excision with four corner fusion; (vi) the Veteran's June 2015 testimony regarding reinjuring his right wrist during his second period of service; and (vii) an August 2015 statement from Dr. C.D.H. regarding aggravation of the Veteran's pre-existing right wrist disorder during his second period of military service. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his claimed disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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 2014). _________________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).