Citation Nr: 1748645	
Decision Date: 10/27/17    Archive Date: 11/03/17

DOCKET NO.  10-29 392	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for a right wrist disability, to include as due to an undiagnosed illness.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran had active service from January 1996 to February 2008, including service in the Southwest Asia theater of operations, and from September 2008 to April 2009.

This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 RO decision that in pertinent part, denied service connection for a right wrist disability.

A hearing was held in June 2011 before a Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record.

In March 2012, the Board remanded this case to the Agency of Original Jurisdiction (AOJ) for additional development. The case was subsequently returned to the Board.

During the pendency of the appeal, in an unappealed January 2014 rating decision, the AOJ denied service connection for a left wrist disability. This issue is not in appellate status.

In September 2017, the Veteran was informed of the fact that the VLJ who held a hearing in his case was no longer employed by the Board, and he was offered the opportunity to testify at another hearing before the VLJ who will decide his case. See 38 U.S.C.A. § 7107 (c); 38 C.F.R. § 20.707. He was advised that if he did not respond within 30 days, the Board would assume that he did not want another hearing and would proceed with adjudication. The Veteran did not respond to this letter. 


FINDING OF FACT

The most probative evidence is against a finding that the Veteran has a chronic right wrist disability as a result of his active service.
CONCLUSION OF LAW

The requirements to establish service connection for a right wrist disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1117, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist a claimant with his claim. VA's duty to notify was satisfied by a letter dated in September 2007. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has submitted written statements and hearing testimony in support of his claim. VA has obtained service treatment records (STRs), VA medical records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and obtained a medical opinion as to the etiology of the claimed right wrist disability. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

The Veteran was afforded a hearing before the Board and a copy of the transcript is of record. There is no allegation that the hearing provided to the Veteran was deficient in any way and further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). 

The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

The Board further finds that the RO has substantially complied with its March 2012 remand orders. In this regard, the Board directed that the Agency of Original Jurisdiction (AOJ) arrange for a VA medical examination and opinion, and attempt to obtain additional VA and private medical records, and this was done. Additional VA medical records were obtained, but the Veteran did not respond to the AOJ's request for additional private medical records. Therefore, the Board finds that no further development is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board finds that the May 2017 VA examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, considered the Veteran's history of wrist pain during service, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2016). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)).  

Regulations also provide that 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). 

A Veteran is presumed in sound condition when examined and accepted for service, except for defects or disorders noted at entrance to service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).   

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016).

Under legislation specific to Persian Gulf War veterans, service connection may also be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more during a presumptive period. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 (a)(1). 

The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants 
presumptive service-connection. 38 U.S.C.A. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i).

Such chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317 (a)(1). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(4). 

Compensation shall not be paid, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf war; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or events that occurred between the appellant's most recent departure from active duty in the Southwest theater of operations during the Persian Gulf war and the onset of the illness; or if there is affirmative evidence that the illness is the result of the appellant's own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 (c).

Service personnel records confirm that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. §  3.317 (e) (defining the Southwest Asia theater of operations); see also 38 U.S.C.A. § 101 (33) (West 2014) (defining the Persian Gulf War as beginning on August 2, 1990, and ending on a date thereafter to be prescribed by Presidential proclamation or law). Therefore, he qualifies for consideration for presumptive service connection for disabilities resulting from undiagnosed illness or medically unexplained chronic multi-symptom illness.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has reviewed all 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, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran contends that he incurred a right wrist disability during service. In his August 2007 claim, he stated that he had right wrist tendonitis for which he was treated in service.

A review of the evidence reflects that the Veteran has not been diagnosed with a current right wrist disability.

The Veteran's service treatment records reflect that he denied having weakness in his arms and hands in January 1999. A March 2001 service treatment record noted complaints of left wrist pain for the past five days with no known injury; the diagnostic assessment was tendonitis. In March 2001, he was placed on a physical profile for left hand tendonitis. In October 2001, he complained of bilateral wrist pain. He reported intermittent tenderness on the dorsal surface of the left wrist. He was diagnosed with left wrist tendonitis. In January 2003, he denied having weakness in his arms and hands. In March 2007, he denied musculoskeletal symptoms and had no arthralgias or myalgias. Service treatment records are negative for a diagnosis of a right wrist disability.

On VA general medical examination in September 2007, the Veteran reported that he had right wrist tendonitis in 2001. The examiner did not note any current right wrist findings or provide a current diagnosis with regard to the right wrist, and indicated a diagnostic impression of a history of right wrist tendonitis.

Service treatment records dated in October 2008 reflect that the Veteran's current problems included carpal tunnel syndrome, although this condition was not treated or diagnosed. There is no evidence that nerve studies were done.

In his June 2009 notice of disagreement, the Veteran contended that he had right wrist tendonitis/carpal tunnel syndrome.

A December 2009 VA primary care note reflects that the Veteran complained of several medical problems but had no complaints with regard to the right wrist. He denied joint aches, swelling and stiffness. On musculoskeletal examination, there was no joint swelling, and there was full range of motion in all joints. Strength was 5/5 in both upper extremities, and reflexes were 2+. A right wrist disability was not diagnosed. Subsequent extensive VA outpatient treatment records are negative for complaints or treatment of a right wrist disability, despite treatment for several other medical problems.

At a June 2011 Board hearing, the Veteran testified that he had recurrent symptoms of right wrist pain and numbness since service, and that he was given wrist braces in service. He said his wrist became numb and sore after typing. He also reported left wrist symptoms. He denied seeking post-service treatment for his right wrist.

The Board remanded this appeal in March 2012 for a VA examination and medical opinion to determine if the Veteran has a right wrist disability that is related to service.

On December 2013 VA examination of the left wrist, the examiner indicated that the Veteran had left wrist tendonitis in service that was resolved, and there was no current left wrist residual. The examiner indicated that the current medical record is silent for a left wrist diagnosis, complaints of left wrist pain, or treatment for a left wrist condition since the original diagnosis in 2001. 

On VA examination of the right wrist in April 2017, the examiner indicated that the Veteran did not have a current diagnosis associated with any claimed condition. The Veteran reported that his wrist pain occurred sometime on or around 2002. The examiner noted that he previously reported bilateral wrist pain in 2001. There was no known injury; the Veteran reported that he began noticing pain in his wrist especially with physical training (push-ups) and typing, which had remained the same since onset. He reported current symptoms of pain in both wrists, and pressure, which sometimes occurred with no known offending activity. He said he took Aleve as needed. The Veteran said he could not type for prolonged periods or do push-ups/physical training. The Veteran reported that he wore a brace for right wrist pain. The examiner noted that the Veteran reported that he was previously assessed for a left wrist condition which was a mistake, it was supposed to be the right. The examiner stated that she was unable to locate service records with tendonitis diagnosis for the right wrist, although it was mentioned in many of the appeal documents, and added that there are conflicting records. On examination of the right wrist, range of motion was normal, and no pain was noted on examination. Muscle strength was 5/5 (normal).

The examiner indicated that there were no current diagnostic results and no treatment records to support a diagnosis at this time. The examiner opined that the claimed right wrist disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, and that there was no current condition, and therefore a relationship to service could not be made. The examiner opined that it is less likely than not that the Veteran suffers from a current wrist disability due to an injury or other event or incident during his period of active duty. She concluded that there is no current condition/diagnosis, and therefore a relationship to service could not be made. 

After a review of all of the evidence of record, the Board finds that the probative evidence of record does not demonstrate that the Veteran has a chronic right wrist disability manifested by pain and numbness existing for six months or more. See 38 C.F.R. § 3.317 (a)(4). Therefore, service connection for a qualifying chronic right wrist disability manifested by pain and numbness is not warranted.

To the extent that the Veteran seeks direct service connection for his symptoms of right wrist pain and numbness, the Board finds that service connection is not warranted, as there is no competent medical evidence of record showing a currently diagnosed right wrist disability. 

The Veteran, as a lay person, is competent to report what she has experienced, including right wrist pain and numbness. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). However, the record shows that the Veteran has not been diagnosed with a right wrist disability. The question as to whether he has a right wrist disability is a complex medical question. Accordingly, appropriate medical expertise is required to make this determination. In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to diagnose a right wrist disability. See 38 C.F.R. § 3.159 (a)(1)(2016). While the Veteran is competent to report what he experienced, the medical evidence demonstrates that he does not have a right wrist disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board affords more weight to the May 2017 VA examiner's finding that the Veteran did not have a right wrist disability, than it does to the Veteran's assertions that he does have a right wrist disability.

There is no evidence of arthritis manifested to a compensable degree within the first post-service year.

In sum, the preponderance of the competent, credible and probative evidence is against the Veteran's claim, and service connection for a right wrist disability is denied.

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131 (West 2014). In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right wrist disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

ORDER

Service connection for a right wrist disability is denied.




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs