Citation Nr: 1754798 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-10 665A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a bilateral wrist disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for bilateral plantar warts. 4. Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Stephen Pennington, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 2003 to May 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record. The issues of service connection for plantar warts and for a neck disability are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action is required. FINDINGS OF FACT 1. The Veteran is not shown to have a left wrist disability; the preponderance of the evidence is against a finding that any right wrist disability is etiologically related to his service. 2. It is reasonably shown that the Veteran's tinnitus began in service and has persisted. CONCLUSION OF LAW 1. Service connection for a right and/or left wrist disability is not warranted. 38 U.S.C. §§ 1101, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) This matter was filed as a "Fully Developed Claim" (FDC) pursuant to VA's program to expedite claims. The notice that accompanies the FDC form satisfies VA's duty to notify. Regarding VA's duty to assist the Veteran in these matters, the RO has obtained his service treatment records (STRs), his VA treatment records, and private treatment records he identified. The RO arranged for VA examinations in March 2012 and February 2012 (and addendum opinions in October 2012 and December 2015). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as deemed appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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). 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). Certain chronic diseases, to include arthritis and tinnitus (as an organic disease of the nervous system), may be presumed to be service connected if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis and organic disease of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 such issue shall be given to the claimant. 38 U.S.C. § 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 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). Bilateral wrist disability The Veteran claims that he incurred the claimed wrist disabilities in service. His STRs are silent for any complaint, treatment, or diagnosis relating to a wrist disability. In a February 2008 report of medical history, he reported, "occasional minor wrist soreness after long hours of typing". The provider noted, "no sequelae discussed forearm tendonitis". On February 2008 service separation examination, the Veteran's upper extremities were normal. A September 2011 clinical record from the Philadelphia Hand Center notes the Veteran's complaint of right wrist pain. On examination, range of motion was noted to be within normal limits. The examiner noted some evidence of "extensor carpi ulnaris subluxation" with active flexion and extension. X-rays of the right wrist were interpreted as showing no evidence of fracture, dislocation, soft tissue or bony mass and no evidence of instability. An October 2011 clinical record notes the Veteran's complaints of "right ulnar sided wrist pain and right wrist ECU subluxation". On examination of the right wrist, there was full active range of motion, without pain, and no instability. A right wrist MRI found no abnormality. An October 2011 VA treatment record notes the Veteran's report of wrist pain, exacerbated by typing and using a computer mouse. On February 2012 VA examination, the Veteran reported that he developed a wrist condition as a result of constant heavy lifting in the military. The diagnosis was right wrist sprain. Motor, sensory, and reflex examinations were within normal limits. There was no weakened movement, excess fatigability or incoordination. The examiner noted evidence of mild or minimal pain on right wrist range of motion. In an October 2012 addendum, the examiner opined that the Veteran's right wrist condition was not caused by or a result of his military service. The examiner noted that the Veteran's discharge physical examination revealed no evidence of a right wrist condition. In a December 2015 clarifying opinion, the February 2012 examiner opined that the Veteran's wrist condition was less likely than not incurred in or caused by or a result of his military service. The examiner noted that although the Veteran reported wrist soreness during service in February 2008, on evaluation, "no sequelae discussed forearm tendonitis "was noted. There is no competent evidence that the Veteran has, or during the pendency of the instant claim has had a left wrist disability. No examination report or treatment record shows a diagnosis or treatment for such disability during the pendency of the instant claim. Accordingly, he has not presented a valid claim of service connection for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). And service connection for such a left wrist disability is not warranted. Regarding the right wrist, there is less clarity whether or not there is a diagnosis of a chronic disability during the evaluation period; September 2011 treatment records note some physical findings suggestive of abnormality, "extensor carpi ulnaris subluxation," but X-rays at the time showed no underlying pathology. The complaints continued, and on February 2012 VA examination, right wrist sprain was diagnosed. Given the equivocal nature of evidence in the matter, it may reasonably be conceded, strictly for the purposes of the discussion herein, that the Veteran now has a right wrist disability. However, there is no competent evidence that such disability is, or may be, related to the Veteran's service, and specifically his reports on service separation of occasional wrist pain with prolonged typing. There is no diagnosis of a chronic wrist disability in service. Notably, on service separation examination, the upper extremities were normal on clinical evaluation. Accordingly, service connection for a right wrist disability on the basis that such disability became manifested in service and persisted is not warranted. Whether or not under such circumstances a current chronic wrist disability may be related to remote service/complaints reported therein is a medical question. The only competent (medical) evidence in the record that addresses the question is in the opinion of the VA examiner (with addendums). The provider is a medical professional, competent to offer the opinions, and the opinion reflects familiarity with the Veteran's record and includes rationale that cites to accurate factual data. It is probative evidence in the matter, and in the absence of competent evidence to the contrary, is persuasive. The Veteran is a layperson, and his own opinion relating a right wrist disability to his service is not competent and probative evidence in the matter. In light of the foregoing, the Board finds that any current right wrist disability is not shown to be etiologically related to the Veteran's service. Accordingly, the preponderance of the evidence is against this claim, and the appeal in the matter must be denied. Tinnitus The Veteran's DD Form 214 shows that he was received a parachutist's badge. Given his activities in service and his accounts of exposure to noise therein, it may reasonably be conceded that he was exposed to excessive levels of noise in service. An October 2011 VA treatment record notes the Veteran's report that he believed his tinnitus was due to "chronic noise pollution from military hardware". He reported wearing headphones 8-12 hours a day. A February 2012 VA treatment record notes the Veteran's complaint of constant ringing in both ears since service. He reported that during service, he worked in communications and wore a headset, and that due to constant background noise, he had to increase the volume of transmissions in order to hear them. On February 2012 VA examination, the Veteran reported recurrent tinnitus, beginning in service. He reported exposure to noise from artillery, firearms, radio equipment and aircrafts, and also reported he was a parachutist in service. He denied postservice recreational noise exposure. He reported that his tinnitus is more evident in quiet environments. The examiner opined that based on the information available, the etiology of the Veteran's tinnitus could not be determined without resorting to mere speculation. [The Board notes that this is essentially a non-opinion.] A February 2013 VA treatment record notes the Veteran's report of worsening tinnitus. The Board finds that the evidence reasonably supports that the Veteran has tinnitus that was incurred in service. It is not in dispute that he has tinnitus, and that he was exposed to noise trauma in service. What remains necessary to substantiate his claim is evidence of a nexus between the tinnitus and his service/exposure to noise trauma therein. He asserts that his tinnitus began in service. He is competent to observe he has ringing in his ears, and generally objective confirmation of such is not possible. See Charles v. Principi, 16 Vet. App. 370 (2002). Tinnitus (as an organic disease of the nervous system) is a chronic diseases listed in 38 C.F.R. § 3.309 (a). One method of establishing a nexus between such disease and service is by showing that it had its onset in service and has persisted since. The Veteran's accounts of onset of his tinnitus in service are not inconsistent with the circumstances of his service, and the Board finds no reason to reject them as not credible. Accordingly, all requirements for substantiating a claim for service connection are met. Service connection for tinnitus is warranted. ORDER Service connection for right and left wrist disabilities is denied. Service connection for tinnitus is granted. REMAND Regarding the claim of service connection for bilateral plantar warts, the Board finds there are medical questions that are not adequately addressed by the medical evidence in the record, and require further medical guidance. Specifically, on March 2012 VA examination, it was noted that that the Veteran's plantar warts in 2008, were eradicated. The diagnosis was "calluses and hyperkeratosis on the bilateral plantar feet without any evidence of warts". The examiner did not discuss whether or not the calluses may be residuals of plantar warts or whether the Veteran has any other residuals of plantar warts (such as scarring from wart removal). Notably, a subsequent (January 2013) VA treatment record notes that the Veteran had plantar warts on his left foot. The diagnosis was "recurrent warts". As a threshold measure, some clarification of the nature of plantar wart pathology is necessary (i.e., whether it is a disability subject to exacerbations and remission or acute pathology that resolves with removal, with further appearances unrelated). Accordingly, an examination for an advisory medical opinion that adequately addresses the medical questions presented in the matter is necessary. Regarding the claim of service connection for a neck disability, the Veteran reported he received treatment for his neck from a private chiropractor (Dr. Gilbert) (from June 2003 to November 2004 (i.e., during service)). In a February 2015 statement, Dr. Gilbert stated that he treated the Veteran over six years ago, but such records were destroyed in accordance with state laws. Notably, that statement by Dr. Gilbert does not identify when he treated the Veteran (beyond more than six years ago), what was treated, the nature of the treatment, and why treatment was terminated (e.g. the problem was resolved or the treatment provided no relief). Significantly, after 2003-2004 (when the Veteran reports he was treated by Dr. Gilbert), the Veteran served on active duty for approximately 5 years, and when he was examined for separation from service, a chronic neck disability was not noted. In October 2016, the Veteran submitted an opinion from a private provider (Dr. JOK) in support of his claim. Upon review of a buddy statement, an October 2014 statement by the Veteran noting he received private chiropractic treatment in 2003-2004 (apparently from Dr. Gilbert), and Dr. Gilbert's February 2015 statement, Dr. JOK concluded "after considering this new information, I consider it more medically probable than not that [the Veteran's] cervical issue is service connected". That opinion lacks adequate rationale; although Dr. JOK indicated that he reviewed some records, the opinion does not reflect familiarity with the entire record (for example, the reports of the Veteran's service separation examination and his VA treatment records) and does not explain how information Dr. Gilbert provided supports the conclusion reached. . Accordingly, the case is REMANDED for the following: 1. The AOJ should arrange for the Veteran to be examined by an appropriate medical professional to ascertain determine the nature and likely etiology of his claimed plantar wart disability. The Veteran's entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on review of the record and interview and examination of the Veteran, the examiner must provide opinions that respond to the following: a. Does the Veteran have plantar warts (or residuals of plantar warts removal) on either or both feet? If not, please reconcile that conclusion with the clinical record (in January 2013) indicating that he has recurring plantar warts. b. If so, is it at least as likely as not (a 50% or greater probability) that the plantar warts (or residuals) now found are etiologically related to the plantar warts excised in service? The examiner must include rationale with all opinions. The rationale must include discussion of the nature, features, and etiology of plantar warts, to include whether they are considered acute pathology that resolves with removal or a chronic condition (or may have chronic residuals). 2. The AOJ should invite the Veteran to provide a clarifying statement from Dr. Gilbert, identifying the disability for which the Veteran was treated, the approximate dates of treatment, the circumstances under which the treatment was terminated, and the basis for any recollection of information he provides/has provided. The Veteran should also be afforded opportunity to submit a supplemental opinion by Dr. JOK explaining (with citation to factual data) the rationale for relating the Veteran's current neck pathology to service (in light of the observations above). 3. The AOJ should arrange for any further development suggested by the response to the development sought above (e.g., an orthopedic examination of the Veteran if additional evidence received includes any probative evidence that a current neck disability may be related to the Veteran's service). If such examination is conducted, the Veteran's record should be reviewed by the examiner in conjunction with the examination. Following review of the record and examination/interview of the Veteran, the consulting provider should respond to the following: a) Please identify (by diagnosis) each current neck disability found/shown by the record. b) Please identify the likely etiology of each neck disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that the diagnosed disability is related to the Veteran's service? The examiner must include rationale with all opinions. 4. The AOJ should then review the record and readjudicate the remaining claims. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. The appellant 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. §§ 5109B, 7112 (2012). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs