Citation Nr: 1748950 Decision Date: 10/31/17 Archive Date: 11/06/17 DOCKET NO. 13-31 046A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for chest injury. 2. Entitlement to service connection for a right wrist disability. 3. Entitlement to service connection for a left wrist disability. 4. Entitlement to service connection for lumbar spine disability (claimed as back injury). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty from April 2007 to April 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2011 (notice sent September 2011) rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2017, the Veteran testified before the undersigned during a Board videoconference hearing; a copy of the hearing transcript has been associated with the Veteran's record. At the hearing the Veteran's representative requested, and was granted, a 30-day abeyance period for submission of additional evidence; additional evidence was received in June 2017. The issues of entitlement to service connection for left wrist and lumbar spine disabilities are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is not shown to have or have had a chronic chest injury disability. 2. The Veteran has been shown to have right carpal tunnel syndrome which is of in-service onset. CONCLUSIONS OF LAW 1. Service connection for chest injury is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 2. Service connection for right carpal tunnel syndrome is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In January 2011 the Veteran received pre-discharge notice of the information needed to substantiate and complete his claims. As such the Board finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Legal Criteria, Factual Background and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of a current claimed disability, incurrence or aggravation of a disease or injury in service, and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Lay evidence may be competent evidence to establish incurrence. See 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), (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. Laypersons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 Fed. Cir. 2007). 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 Veteran 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). The Veteran contends that he injured his chest in service and service connection for a chest injury is warranted. Specifically, he noted at the hearing that his chest was injured when a 400-pound drum accidentally fell on him. His service treatment records during his entire period of service are negative for any complaints, treatment or diagnosis related to a chest injury. Notations found in his March 2011 service separation examination report are against his claim. He indicated on that report that since his last medical assessment/physical examination he had not had any illnesses or injuries that caused him to miss duty for longer than 3 days and that he had not suffered from any injury or illness while on active duty for which he did not seek medical care. Moreover, the accompanied separation medical history report is negative for any mention of a chest injury. In March 2011 he underwent a pre-discharge examination (conducted by QTC Medical Services). He reported that the chest injury has existed since 2008. He indicated that "the bone condition" was due to a trauma/injury. The injury occurred in the line of duty when a heavy object fell on his chest. He denied a history of pneumothorax, rib fractures, cardiac contusion or surgery. He stated that over time the condition had improved. He noted that the chest injury does not cause pain, nor was he receiving any treatment for the claimed chest injury. He further reported that he does not experience any overall functional impairment from the chest injury. On examination, including x-rays, the Veteran's chest was within normal limits. The examiner noted that no diagnosis of a chest injury was rendered because there was no pathology to render a diagnosis. October 2011 and June 2016 VA outpatient primary care reports show post-service denials by the Veteran of any chest pain. It appears there are no other records of chest complaints in the Veteran's record. A threshold legal requirement for substantiating a claim of service connection is that there must be evidence that the Veteran actually has the disability for which service connection is sought. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Here, the evidence does not show that the Veteran has (or during the pendency of this claim has had) a chest injury disorder. Absent competent evidence of a diagnosis of a disorder associated with chest injury, there is no valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board would further point out that while the Veteran may be competent to report a history of a chest injury, he does not have the requisite training or expertise to ascertain that such injury resulted in a chronic disability. Moreover, his statements as to his history of an injury have been inconsistent in this case, further limiting their probative value. Accordingly, the preponderance of the evidence is against the claim of service connection for a chest injury, and this claim must be denied. See Gilbert, 1 Vet. App. at 55. As to the right wrist, in a March 2011 in-service treatment report, the Veteran was seen for right wrist pain, which had been present for a year. The diagnosis was carpal tunnel syndrome. On March 2011 pre-discharge examination by QTC Medical Services, the Veteran reported right wrist pain that existed since 2010 that developed insidiously with a history of trauma. In a post-service October 2011 report, the Veteran reported that he was diagnosed with carpal tunnel in the previous year. He was given splints and antiflammatories and told to wear the splints at night. The diagnosis was carpal tunnel syndrome, wear braces at bedtime and take Ibuprofen or meloxicam for pain. In view of this treatment both during and post-service, the Board finds that service connection for right carpal tunnel syndrome is warranted. To this extent, the appeal is granted. ORDER Service connection for a chest injury is denied. Service connection for right carpal tunnel syndrome is granted. \ REMAND Medical evidence and the Veteran's lay assertions of record indicate a possible relationship between the claimed left wrist and lumbar spine disabilities and the Veteran's active service; therefore an examination is necessary to determine the nature and etiology of the claimed disabilities. While the Veteran's in-service treatment concerned the right wrist, the aforementioned October 2011 treatment record (which in large part is barely legible) contains language referencing the "wrists." It is unclear whether and to what extent a left wrist condition was present at this point, notably within one year of separation from service. This matter accordingly must be further addressed on examination. Additionally, at the March 2011 pre-discharge examination the Veteran reported that his lower back disability had existed for 3 years and was due to injury occurred in the line of duty. In an October 2011 (6 months after his discharge from service) VA outpatient primary care report, the Veteran reported having chronic back pain. He stated that while in the service, on his first cruise, he had to move a 55-gallon barrel (300 pounds) of oil. He was given the wrong type of dolly and while trying to pull the barrel up a ramp to get momentum it stopped abruptly and his back slammed against the ramp. Back pain was diagnosed. It is unclear whether this represents a clinical diagnosis of a chronic disorder, and a further examination as to this matter is warranted too. Accordingly, these matters are REMANDED for the following action: 1. The AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of his left wrist and lumbar spine disabilities. The Veteran's record should be made available to the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is asked to address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left wrist and lumbar spine disabilities were caused or aggravated by his service, or were present in the first year following service. The examiner is asked to provide a rationale for the opinions rendered. 2. After taking any further development deemed appropriate, readjudicate the issues on appeal. If a benefit sought is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs