Citation Nr: 1753085 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-10 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES Entitlement to service connection for a right wrist disability. Entitlement to service connection for a right ankle disability. Entitlement to service connection for right ear hearing loss. ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. As a matter of background, this appeal previously came before the Board in March 2017, at which time it issued a remand of the issues on appeal for further development. At that time, the appeal also included claims of service connection for a right shoulder injury, a left 5th finger injury, left ear hearing loss, and tinnitus. Following the development ordered by the Board, those issues were granted in an August 2017 rating decision, which also confirmed and continued the denial of service connection for right ear hearing loss. As such, the issues of entitlement to service connection for a right shoulder injury, a left 5th finger injury, left ear hearing loss, and tinnitus are no longer before the Board, as they have been granted in full. FINDINGS OF FACT 1. The Veteran's right wrist tendonitis is less likely than not related to his in-service wrist injury. 2. The Veteran does not have a presently diagnosed right ankle injury. 3. The Veteran does not have right ear hearing loss within the regulatory definition of hearing loss for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection of right wrist tendonitis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection of a right ankle injury have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection of right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters sent in January, March, and May 2010. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's service treatment records, private treatment records, VA examination reports, and statements from the Veteran. Further, the Board finds there has been substantial compliance with its March 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand). To the extent that the March 2017 remand instructed VA to contact the Veteran and request authorization for release of any additional medical records, the Veteran was notified in a March 23, 2017, letter of those requirements. There was no indication that the letter was returned as undeliverable. The Veteran did not respond to VA's request, and VA was subsequently unable to obtain any further private treatment records. The VA examinations, as ordered, have been accomplished, and the matter readjudicated before being returned to the Board. The Veteran has not notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Service Connection The Veteran seeks service connection for a right wrist disability, right ankle disability, and right ear hearing loss. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board finds that service connection should be denied for all three issues remaining on appeal. At the outset, the Board finds that the Veteran does not have a presently diagnosed right ankle disability, nor does he have right ear hearing loss within the statutory definition of that disability. Specifically, the Veteran was afforded a VA examination of his ankle in May 2017 to address any possible diagnosed condition associated with his reports of pain in that ankle. The examiner conducted a physical examination, as well as a review of his available medical records, and determined that the Veteran does not have any present pathology related to his symptoms. Particularly, the examiner noted that the Veteran reports a mild shooting pain on the top of the right foot, lasting a minute, when walking 2-3 times per week. He is not presently getting healthcare for the issue, and reports no treatment for it. Further, there were no VA or private treatment records relevant to treatment of the reported ankle pain. Range of Motion was normal, muscle strength was complete and full, no ankylosis was found, and the ankle was stable. As such, the examiner concluded that the Veteran did not have a presently diagnosed disability in the right ankle. The Board does acknowledge the Veteran's complaints of pain in his right ankle and foot, but finds them to be less than probative of this issue. The Veteran, as a lay person, is competent to provide testimony as to observable symptomatology, such as pain. Barr v. Nicholson, 21 Vet. App. 303, 307-08. However, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of ankle pain, especially in light of the VA examiner's conclusions to the contrary and the fact that the evidence fails to demonstrate any known pathology associated with the reported pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Further, to the extent that the Board does acknowledge the Veteran's right ankle pain, which he is competent to report, pain alone is not a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (pain alone without a diagnosed or identifiable underlying disability does not in and of itself constitute a disability for which service connection may be granted). As such, the Board concludes that the Veteran does not have a presently diagnosed right ankle disability. Likewise, For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies, 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). In the instant case, the Veteran was afforded a VA examination in February 2017. At that time, audiogram testing showed the following puretone thresholds in Hertz: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 35 LEFT 20 20 25 20 40 Maryland CNC Testing showed speech discrimination scores of 96 percent in both the right and left ear. Although the results of the VA examination showed evidence of hearing loss in the left ear (indeed, that claim was subsequently granted in the August 2017 rating decision), it does not show hearing loss within the statutory definition of that disability in the right ear. In light of the above, the Board must deny the claims of service connection for a right ankle disability and right ear hearing loss because both claims fail the first criteria of service connection, namely, a presently diagnosed disability. Regarding the claim of service connection for a right wrist injury, the Veteran was afforded a VA examination in May 2017. The examiner conducted a physical examination and reviewed the Veteran's medical history, to include his service treatment records, and diagnosed mild, non-disabling tendonitis of the right wrist. Thus, the Veteran does have a presently diagnosed disability. Likewise, a review of his service treatment records confirms the Veteran's report that in November 1988 he reported for treatment of right wrist pain after a fall, and was diagnosed with a right wrist sprain. He was told to avoid pushups for three weeks thereafter. His service treatment records also confirm that in July 1989 he reported right wrist pain ongoing for seven months, for which he was ordered to avoid aggravating activities and use an ace bandage, as necessary, as well as squeeze balls. No further complaints of right wrist pain are documented in his service treatment records. Next, the evidence does not indicate that the Veteran experienced wrist symptoms for many years after service. Specifically, the first indication of a wrist disorder post-service was not until he filed the claim on appeal in November 2009. This i approximately 4 years after he left service and approximately 20 years after his last complaints of these symptoms in service. Therefore, continuity of the evidence is not shown on a clinical basis. As part of this claim, the Board recognizes the Veteran's statements regarding his history of wrist symptoms. In this regard, while the Veteran is not competent diagnose a wrist disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. Specifically, the Board notes that even though he experienced a wrist injury in 1989, he did not mention experiencing wrist symptoms again, despite undergoing many additional years of treatment while in the military. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. The Board has also considered whether there is otherwise a nexus between the Veteran's in-service injury and his current complaints. However, in May 2017, a VA examiner opined that the condition was less likely than not incurred in or caused by the in-service injury. Particularly, the examiner stated that, based on a review of the evidence of record, as well as the Veteran's own reports, there is inadequate supporting evidence to demonstrate that there is a continuity of symptoms from service to the present. The duration of time is too long to support that claim that his current symptoms are caused by the sprain in 1988 and 1989. This opinion was provided by a medical professional, and in contemplation of the complete records, to include the Veteran's own reported medical history and complaints of pain. Thus the Board finds it to be both competent and credible. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran has not provided any medical evidence that would contradict the VA examiner's conclusion. The Board does acknowledge the Veteran's reports of ongoing pain, which he is competent to provide, but finds those statements to be less persuasive than the VA examiner's opinion. Again, the Board observes that the Veteran is a lay person and is not competent to make an etiological conclusion regarding the cause of his tendonitis, especially in light of the VA examiner's conclusions to the contrary, which was rendered in contemplation of the Veteran's reported ongoing history of pain. See Jandreau, supra. In sum, although the Veteran has a present diagnosis of right wrist tendonitis, and he did sprain his wrist in 1988, the evidence does not support a medical nexus between the two. As such, the Board must deny the claim. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine does not apply. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2017). ORDER Service connection for a right wrist disability is denied. Service connection for a right ankle disability is denied. Service connection for right ear hearing loss is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs