Citation Nr: 1647364 Decision Date: 12/20/16 Archive Date: 12/30/16 DOCKET NO. 13-11 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a right wrist disability. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disease or injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.E. Tracy, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1988 to October 1992, June 2008 to June 2009, and October 2009 to October 2010 with additional service in the Army National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. The most recent Supplemental Statement of the Case (SSOC) was issued in August 2015. Since that time the Veteran submitted additional pieces of evidence, including several statements from family members and acquaintances. However, the Veteran waived initial RO consideration of any additional evidence received since the SSOC in a waiver signed in August 2015. A Statement of the Case was issued for the issue of an increased rating for posttraumatic stress disorder (PTSD) in August 2016. An appeal for that issue has not been perfected; therefore, that issue is not currently before the Board. The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a right wrist disability that is related to an event, injury, or disease in service or to a preexisting disorder that was aggravated by service. CONCLUSION OF LAW The criteria for service connection for a right wrist disability have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303; 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). All of the relevant development requested by the Board's March 2015 remand was fully completed with regard to the claim of service connection for a right wrist disability as the AOJ was asked to seek treatment records and schedule an examination and an adequate VA examination was performed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Legal criteria The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122 (2000). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Right Wrist With respect to the Veteran's claim of service connection for a right wrist disability, the Veteran's service treatment records (STRs) provide some documentation of a wrist condition. The Veteran's September 1988 entrance examination and report of medical history indicate that the Veteran reported fracturing his right wrist. That examiner noted that the fracture occurred 6 years prior to the examination and that the Veteran had no sequelae. As will be noted below, following the Veteran's initial period of service (1988 to 1992) the Veteran was involved in a motor vehicle accident in 2000 wherein it appears he also injured his right wrist. However, on Reports of Medical history dated in July and October 2007 the Veteran denied pain in his wrists. The Veteran did not report any wrist problems on his August 2008 pre-deployment examination at the start of his second period of service. A March 2009 in-service X-ray report found, "No acute fracture or dislocation. Lunotriquetral coalition with osseous fusion. This is a development fusion of these carpal bones. Old ulnar styloid and tip fracture. The ulnar styloid is impacted and level with the ulnar tip. There is non-union of the ulnar styloid fracture. The lunotriquetral coalition and old distal ulnar fracture predispose to insult to the triangular fibrocartilage complex (TFCC) and the extensor capri ulnaris tendon." On a June 2009 post-deployment report and examination, the Veteran reported that he had experienced wrist pain during the deployment. The examiner noted that this was "ok now." That same report also notes that the Veteran does not have any current medical issues. Thus, the only STR notes regarding a right wrist condition were the Veteran's complaint of experiencing wrist pain during the deployment and the X-ray studies performed in March 2009. There are no other treatment records from his STRs that show injury or treatment of the right wrist. An August 2009 VA treatment record notes the Veteran sought treatment for right wrist pain and reported onset 6 months prior (which would have been during his deployment) as well as an earlier fracture in 2000. The 2000 event was noted to be a motor vehicle accident. X-rays at that time showed "no acute fracture-dislocation. Incomplete osseous fusion at the level of the ulnar styloid and distal metaphysis of the ulna consistent with previous fracture. Well circumscribed lucencies distal ulna which may represent small cysts or chondral lesion. Osteoarthritis of the distal radial ulnar joint. The carpal coalition lunotriquetral joint." Again, a September 2009 VA treatment record shows the Veteran sought treatment for right wrist pain with a history of ulnar fracture in 2000 with distal radioulnar osteoarthritis and possible TFCC injury. At the September 2009 visit, the top health concerns listed on a questionnaire were breathing issues and pain in the shoulder, wrist, and feet. The report noted the following about the right wrist: "He started to have pain in his right wrist during deployment. He is not aware of a precipitating injury or activity, he denies pain before deployment. He first noticed the pain associated with pushing open pressurized doors in deployment. He currently avoids similar activities which trigger/aggravate the pain. He is seeing OT 2x/week currently for the right wrist pain." The Board notes that the Veteran's reported history given at this visit differs from other accounts given when he acknowledged the prior injures in 2000 and in 1982. There is no separation examination report after the Veteran's final period in service. Therefore, the Board exercised a heightened obligation to carefully apply the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated. Russo v. Brown, 9 Vet. App. 46 (1996). The Board notes VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111 (West 2014), the VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304 (2014). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F.3d 1089, 196 (Fed. Cir. 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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; 38 C.F.R. § 3.306(a) (2014). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993). Following the March 2015 remand the Veteran underwent a VA examination in July 2015. The examiner noted a diagnosis of arthritis in the right wrist. The Veteran reported he started to have right wrist pain in 2008 after pushing open a door. He indicated that he had a history of two right wrist fractures, one at age 12 or 13 and another in 1999 (the Board takes notice that this is the previously reported 2000 motor vehicle accident). The Veteran had casts both times. The examiner noted that there were no in-service treatment records showing injury to the right wrist. The Veteran denied flare-ups of the right wrist. Range of motion (ROM) testing showed abnormal results. Palmar flexion was not limited. Dorisflexion was limited to 60 degrees (75 degrees is normal). Ulnar deviation was limited to 40 degrees (normal is 45 degrees). Radial deviation was normal. There is not objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There is no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion. There is no reduction in muscle strength or muscle atrophy. There is no ankylosis. It was noted that the Veteran occasionally uses a brace on his wrist. Imaging testing was conducted and the following impressions were noted: 1) Incompletely healed or partially non-united fracture of the base of the ulnar styloid process is seen; 2) Lucencies noted along the ulnar aspect of the distal ulnar diametaphysis which may be the sequela prior trauma as described above; 3) No change in the appearance of osseous coalition or fusion of the lunate and triquetral articulation; 4) Mild circumferential soft tissue swelling and edema noted surrounding the right hand and wrist; 5) Generalized osteopenia of the visualized bony structures; and, 6) No new acute osseous abnormality is seen. These findings mirror the 2009 X-ray findings. The examiner provided the following opinion: "The claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness." The examiner reported being "unable to find documented injury or treatment related to the Veteran's claimed right wrist condition in his [service treatment records]. He was treated for [a] right wrist condition in August 2009 [by] VA." The examiner continued: "Based on his history, physical exam and imaging study: It is not at least as likely as not that the pre-existing right wrist fracture underwent a permanent (as opposed to temporary) increase in severity during any period of active service. The Veteran's right wrist fracture was not clearly and unmistakably aggravated by service. It is not at least as likely as not that any right wrist disability had its onset in, or is otherwise related to the Veteran's active service." Therefore, the VA examiner's opinion weighs against a finding of service connection. As will be outlined below, there are no medical treatment records that offer an opinion in favor of service connection. There are VA treatment records dated in January and February 2011 when the Veteran again presented with right wrist pain. And VA treatment records continue to show complaints of right wrist pain, for example in July 2014. However, these records do not contain any opinion on the etiology of the Veteran's right wrist condition, except to occasional mention the prior fractures. Statements from the Veteran, friends, and family members are included in the electronic claims file. They allege that the Veteran has complained of wrist pain over the years. Specifically, a number of the statements indicate that the Veteran started experiencing right wrist pain while deployed in 2008 to 2009. The Veteran and the other lay witnesses are competent to describe any discernible symptoms, including suffering from pain, without any specialized knowledge or training. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, their opinions regarding the etiology of his right wrist condition, to include arthritis, are not competent evidence. They are laypersons, and do not cite to supporting medical opinion or clinical or medical treatise evidence which pertains to the Veteran's specific disability picture. Furthermore, the question of the etiology of a wrist condition is a medical question beyond the scope of lay observation. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While the Board acknowledges that the Veteran complained of wrist pain after the 2008-2009 deployment, the preponderance of the evidence is against a finding that he has a current right wrist condition that is related to service or to a preexisting disability that was aggravated in service. There are no medical opinions that weigh in favor of the claim. Further, the VA medical examiner's opinion is granted greater probative value than the lay evidence. The VA examiner noted the prior complaints of wrist pain, including during the 2008-2009 deployment, and the reported injuries prior to the Veteran's periods of service before issuing an opinion. After reviewing the records and examining the Veteran, the examiner concluded that the Veteran's right wrist condition "clearly and unmistakably existed prior to service" and that it "was not aggravated beyond its natural progression by an in-service event, injury or illness." The examiner noted that based on the Veteran's history, physical exam and imaging study, it "is not at least as likely as not that the pre-existing right wrist fracture underwent a permanent (as opposed to temporary) increase in severity during any period of active service. The Veteran's right wrist fracture was not clearly and unmistakably aggravated by service. It is not at least as likely as not that any right wrist disability had its onset in, or is otherwise related to the Veteran's active service." In summary, the preponderance of the evidence of record is against a finding that any right wrist condition is related to the Veteran's service or was aggravated by service. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a right wrist disability. ORDER Entitlement to service connection for a right wrist disability is denied. REMAND In March 2015 the issue of service connection for sleep apnea was remanded by the Board for a VA examination and opinion. The examiner was asked to opine on whether the Veteran's current sleep apnea was directly related to service or was caused or aggravated by the Veteran's service-connected respiratory condition. Unfortunately, the opinion on both counts was inadequate. Regarding the opinion on direct service connection, the examiner did not adequately address the Veteran's contention that his snoring began during his first period of active duty service. Instead, the examiner only mentioned not seeing any evidence in the STRs that the Veteran snored in service or had arguments with any roommate. There is no indication that the examiner considered the Veteran's lay statements regarding the onset of the Veteran's snoring. Regarding whether the Veteran's sleep apnea is related to his service-connected respiratory condition, the examiner wrote: "It is less likely than not that Veteran's service connected to restrictive lung disease." This is an incomplete sentence without an adequate rationale with which a decision can be based. Therefore, an addendum medical opinion must be requested. Finally, the examiner noted a diagnosis of sleep apnea but explained that the initial sleep study from Beth Israel in 1999 was not in the Veteran's electronic claims file. However, the sleep study is in fact in the claims file and has a "receipt date" of May 7, 2007. Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant outstanding VA and private treatment records concerning the Veteran's sleep apnea, including any updated treatment records from the East Orange VAMC. 2. Forward the claims folder to the VA examiner who provided the June 2015 VA examination of the Veteran's sleep apnea, if available, otherwise the opinion must be sought from a similarly qualified provider, as to the current nature and likely etiology of the Veteran's sleep apnea. After reviewing the record, the examiner should address the following: (a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's current sleep apnea had its onset in or is otherwise causally related to the Veteran's service? The examiner should consider, and discuss as necessary, the Veteran's statements, and the other lay statements of record, that he never snored prior to service but that during his first period of service he began to snore loudly and would have arguments with his roommate about his snoring. (b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's sleep apnea was caused by his service-connected restrictive lung disease? (c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's sleep apnea was aggravated by his service-connected restrictive lung disease? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If the examiner concludes that an opinion cannot be offered without resorting to speculation, it should be indicated and he or she should explain why an opinion cannot be reached. 3. Then readjudicate the claim remaining on appeal. If the benefit sought remains denied, the AOJ must furnish the Veteran and his representative with an appropriate SSOC and afford a reasonable opportunity for response. 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 2014). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs