Citation Nr: 1756041 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 13-11 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a bilateral wrist disability. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from September 1989 to February 2005, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) from the April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran appeared at a July 2016 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in September 2016 and was remanded for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's right shoulder disability is related to his military service. 2. The Veteran's bilateral wrist disability is not related to his military service. 3. The Veteran is shown to have had active service in the Southwest Asia theater of operations during the Persian Gulf War. 4. The currently demonstrated joint aches and pains of the bilateral wrists are not shown to be as likely as not due to an undiagnosed illness as due to the Veteran's service in the Persian Gulf War. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310, 3.317 (2017). 2. The criteria for service connection for a bilateral wrist disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As for the duty to notify, a VCAA letter was sent to the Veteran in July 2010. As for the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, several VA examinations have been secured in connection with the current claim satisfying VA's duty to assist with respect to obtaining a VA examination. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Other Due Process Considerations As noted in the Introduction, the Veteran was afforded a hearing before the undersigned VLJ in July 2016. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his right shoulder and bilateral wrist disabilities. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. In addition, the Veteran was assisted at the hearing by an accredited attorney. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). III. Compliance with Prior Board Remands The Board observes that this case was previously remanded by the Board in September 2016 The purpose of this remand was to obtain outstanding treatment records, obtain Social Security Administration (SSA) records, and schedule the Veteran for VA examinations. Upon remand, such directives were followed. The Board therefore finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). IV. Service Connection Generally Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be established under the provisions of 38 C.F.R. § 3.303 (b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity of symptoms after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Additionally, under 38 U.S.C. § 1117 (a)(1) (2012), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a), (b) (2017). A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 U.S.C. § 1117 (f); 38 C.F.R. § 3.317(e). The Veteran's military records document that he served in Southwest Asia during the Persian Gulf War. V. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Right Shoulder The Veteran contends that his current right shoulder disability was caused by an in-service right shoulder injury resulting from a bad parachute jump. The Board notes that the Veteran's DD Form 214 illustrates that the Veteran received the parachutist badge as well as the Kuwait Liberation medal for his active service, with a notation that he had service in Southwest Asia from September 1990 to April 1991. While in service, in October 1992, the Veteran sought medical care for a right shoulder injury after falling hard on his right shoulder during a parachute jump. The service treatment record states that the Veteran was diagnosed with acromioclavicular joint strain and was given pain medication and placed on light duty. The Board notes that the Veteran's entrance medical examination did not note any right shoulder disabilities. However, no exit medical examination is present in the Veteran's service treatment records. At his July 2016 Board hearing, the Veteran testified that during the in-service jump injury, he remembered feeling a last minute gust of wind which caused the Veteran to have to compensate for with his chute. The Veteran stated that he landed and hit the ground and heard a "pretty loud crunch." The Veteran recalled that although he had many jumps prior to this one, he knew that this one was different and his shoulder was subsequently in a lot of pain. The Veteran reported that he had a fellow soldier pack his equipment for him and sought medical attention. The Veteran testified that his shoulder has hurt ever since this jump. Additionally, the Veteran suffered another in-service injury to his shoulder during a football game. After separating from service, the Veteran stated that he continued to have pain in his shoulder even though he did not seek treatment until several years later. Ultimately, the Veteran's shoulder began to worsen and surgery was performed. The Veteran testified that he has not had any post-service injuries to his right shoulder. In May 2005, the Veteran underwent a private medical examination. The opinion stated that, after reviewing the Veteran's medical evidence, the Veteran's right shoulder disability is a direct result of his military service. However, no rationale was provided for this opinion. Therefore, the Board finds this opinion is inadequate. In June 2017, the Veteran underwent a VA shoulder examination. The examiner stated that the Veteran is diagnosed with right rotator cuff tendonitis, right labral tear, including superior labral anterior-posterior lesion (SLAP), and right acromioclavicular joint osteoarthritis. The examiner opined that the Veteran's right shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Additionally, the examiner concluded that it is less likely than not that the Veteran's claimed right shoulder condition with radiculopathy is due to, incurred in, or resulted from active military service in Southwest Asia, and did not result from exposure to environmental hazards while serving in Southwest Asia. The examiner stated that after reviewing the evidence of record, to include the Veteran's verbal testimony, he concluded that there is insufficient medical evidence to substantiate the Veteran's contention for service connection for a right shoulder disability. The examiner acknowledged the Veteran's October 1992 service treatment record indicating his right shoulder injury and subsequent diagnosis. However, the examiner stated that the lack of evidence of follow up visits following the Veteran's in-service injury "argue against the presence of a chronic disease process." Furthermore, the examiner stated that the Veteran's right shoulder disabilities are not undiagnosed nor part of a chronic multi-symptom illness of unknown etiology and are thereby not due to exposure to environmental hazards. The Board finds this opinion inadequate as it does not properly account for the Veteran's lay statements that he has had right shoulder pain since his military service. The Veteran's lay statements are competent evidence of symptomatology which is observable by a lay person. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran's statement is competent evidence as to events that are capable of lay observation). A medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). As the VA examination does not address the Veteran's competent reports of continuous right shoulder pain since active duty service, it is inadequate and entitled to little probative weight. Additionally, the Board finds that the Veteran's statements regarding his duties in service are credible and consistent with the circumstances of his service, including the duties associated with parachute jumps. Furthermore, the Veteran is competent to report right shoulder pain and continuity since his service and his service treatment records and post service records support his assertion. Additionally, the Veteran did not file a claim for service connection for a right shoulder disability for years after his initial complaints of right shoulder pain; thus, indicating that these statements were made for treatment purposes and not for compensation purposes. The Board finds that statements made for treatment purposes, without a view towards compensation, are generally credible. Overall, although there are no probative medical opinions addressing whether the Veteran's right shoulder disability is directly related to his active duty service, the Board finds the Veteran's lay statements to be sufficient to establish entitlement to service connection in this instance. Accordingly, resolving all reasonable doubt in favor of the Veteran, as is required by law, the Board finds that the Veteran's right shoulder disability is a result of his active service, and the entitlement to service connection is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). Bilateral Wrists The Veteran contends that his current bilateral wrist disability is a result of his military service. Specifically, the Veteran testified at his Board hearing that although there was no specific injury to his wrists, he had to lift, pull, and constantly train for medivac missions where he was responsible for dragging other soldiers and equipment. Additionally, the Veteran testified that, as a parachutist, he had to train to hold himself up in a harness so that he was able to pull the riser of the chute to go in any direction. The Veteran stated that this strength training involved pulling his entire body weight up and holding that position for several minutes. He reported that everything ached and hurts and he and his fellow parachutists would rely on Bengay and Motrin for the pain. Furthermore, the Veteran stated that every jump resulted in falling on either side of his body. However, the Veteran's service treatment records are negative for any complaints of or treatment regarding the Veteran's bilateral wrists. Several years after service, the Veteran sought medical care for his bilateral wrist disability. The evidence of record reveals that initially doctors believed the Veteran had carpal tunnel syndrome, however, the Veteran was ultimately diagnosed with tendonitis. Additionally, the Veteran stated that he has received braces for both of his wrists that he wears up to three times a week, however, the Veteran stated that they interfere with his daily life. The Veteran described his bilateral wrist disability as resulting in pain, limited range of motion, tightness, and a "pop" feeling. Additionally, the Veteran stated that he gets numbing in his fingers. November 2002 treatment records note numbness in the Veteran's hands and state that the Veteran's current job involves repetitive motion. A January 2004 questionnaire concluded that the Veteran has tendonitis. Additionally, March, April, and June 2004 treatment records note complaints of wrist pain. A November 2008 VA treatment note stated that the Veteran complained of bilateral wrist pain at a level 7 out of 10. The Veteran described the wrist pain as aching and that his wrists also get numb at night and that he frequently wakes up in a lot of pain. In May 2005, the Veteran underwent a private medical examination. The opinion stated that, after reviewing the Veteran's medical evidence, the Veteran's bilateral wrist disability is a direct result of his military service. However, no rationale was provided for this opinion. Therefore, the Board finds this opinion is inadequate. In June 2017, the Veteran underwent a VA wrist examination. The examiner stated that the Veteran is diagnosed with bilateral wrist tendonitis. The examiner concluded that the Veteran's bilateral wrist tenosynovitis was less likely than not incurred in or caused by any claimed in-service injury, event, or illness. Furthermore, the examiner opined that the Veteran's claimed bilateral wrist tenosynovitis condition is less likely than not a result of the Veteran's active military service in Southwest Asia and did not result from exposure to environmental hazards while serving in Southwest Asia. The examiner explained that there is insufficient medical evidence to substantiate the Veteran's contention for service connection for a bilateral wrist disability. The examiner stated that wrist tenosynovitis is an overuse condition which occurs due to repetitive strain or friction of the tendon. The examiner noted that this usually occurs in a tendon which rubs over a bony prominence of where excess repetitive strain has been placed on the tendon. The examiner stated that the Veteran's medical records reveal that he reported repetitive activities involving his hands in his civilian job at the time; the Veteran worked as a civilian range control maintenance worker and telecommunication contractor. The examiner noted that the Veteran did not seek treatment for any wrist condition in service or in close proximity to separation from service. Furthermore, the examiner stated that wrist tendonitis is neither an undiagnosed illness, nor part of a chronic multi-symptoms illness of unknown etiology due to exposure to environmental hazards. Finally, the examiner stated that there is a lack of rationalized medical evidence to establish the asserted causal relationship or aggravation of a continued or chronic wrist condition while in service. The Board finds that entitlement to service connection for a bilateral wrist disability is not warranted as the evidence of record does not show a causal relationship between the Veteran's military service and current diagnosis of bilateral wrist tendonitis. The Board acknowledges that the Veteran has stated that he has had wrist pain since his military service. However, there are no complaints of wrist pain or any other wrist injuries in service or shortly after separating from service. It was not until the early 2000's that the Veteran began to seek treatment for his bilateral wrist disability. Additionally, the Board finds the June 2017 VA examination probative in its determination that it is less likely than not that the Veteran's bilateral wrist disability is related to his military service. Thereby, service connection for a bilateral wrist disability is denied. ORDER Service connection for a right shoulder disability is granted. Service connection for a bilateral wrist disability is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs