Citation Nr: 18146976 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 12-20 701 DATE: November 2, 2018 ORDER Entitlement to service connection for a left wrist disability is denied. FINDING OF FACT The Veteran’s left wrist disability was not incurred during his active service; and current left wrist disability is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a left wrist disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1959 to July 1962 and had service in the Naval Reserve from July 1974 to February 1992. In July 2013, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) that is no longer with the Board; a transcript of that hearing is in the record. As the VLJ who presided at a hearing must participate in the decision on the claim (38 U.S.C. § 7107(c); 38 C.F.R. § 20.707), the Veteran was offered the opportunity for another hearing before the VLJ who would decide the claim. The Veteran did not respond to the opportunity for a new hearing within the allotted 30 days. Accordingly, the Board determines that the Veteran did not wish to request a new hearing and the claim will be adjudicated based on the evidence of record. In June 2014 and again in February 2017, the Veteran’s appeal was before the Board but was remanded to the agency of original jurisdiction (AOJ) for further development. Specifically, the AOJ was to attempt to obtain the Veteran’s service treatment records from July 1959 to July 1962, and attempt to verify the Veteran’s specific periods of service. In addition, the AOJ was required to obtain the Veteran’s authorization to obtain treatment records from the HIP Health Center in Queens, NY, and request medical records from the New York State Labor Board regarding any worker’s compensation claim that may have been filed by the Veteran. Finally, the AOJ was directed to obtain all VA treatment records from the Veterans Affairs Medical Centers (VAMCs) located in East Orange, New York and Brooklyn, New York, and schedule the Veteran for new VA examinations if necessary. In response to the February 2017 remand, the AOJ requested and received all the Veteran’s existing service treatment records and entire military personnel file. In a November 2017 letter, the Veteran was asked to complete and submit VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, in order for the AOJ to obtain medical records from the HIP Health Center in Queens, New York, and the New York State Labor Board. To date, no response has been received. The AOJ did obtain and associate with the claims file the VA treatment records from VAMCs in East Orange, New York and Brooklyn, New York. Finally, The Veteran was scheduled for additional VA wrist and spine examinations to be completed in April 2018. However, the Veteran failed to report for the scheduled examinations and to date has not offered good cause for his absence. The Board recognizes that there is deviation from the remand directive because the examinations were not conducted. However, this is due to the Veteran’s failure to report for his rescheduled VA examinations. Remand for another examination is not necessary. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor his representative have 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 a duty to assist argument). Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Veteran completed VA examinations in November 2009 and May 2010. The Veteran was scheduled for additional VA examination to be completed in April 2018, however, the Veteran failed to report. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with the type of claim. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the Veteran, and death of an immediate family member. See 38 C.F.R. § 3.655(a). As the Veteran failed to report for the April 2018 examination and has not demonstrated good cause, the Board will decide the entitlement to service-connection based upon the evidence already of record. See 38 C.F.R. § 3.655(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a disease is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a left wrist disability The Veteran claims entitlement to service connection for a left wrist disability. Specifically, the Veteran contends he injured his wrist attempting to move a file cabinet while serving on a period of ACDUTRA in May 1986. When a chronic disease manifests to a degree of 10 percent or more within 1 year from the date of separation from service, that disease is presumptively service-connected. 38 C.F.R. §§ 3.303(b), 3.307(a)(3). The Veteran’s claimed left wrist degenerative joint disease is chronic a disease as defined by 38 C.F.R. § 3.309(a). Claims based on a period of ACDUTRA are never entitled to the presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309. Smith v. Shinseki, 24 Vet. App. 40, 46-48 (2010). The presumption of service connection for chronic diseases does not apply in this case because it is based on a period of ACDUTRA for which “veteran” status has not been established. This is because no service-connected disability has been established for this period of ACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 471 (1995) (an individual who has served only on active duty for training must establish a service-connected disability in order to achieve veteran status and to be entitled to compensation.”). The Veteran has a current left wrist disability. In a May 2010 VA joints examination, the VA examiner noted the Veteran’s diagnosis of mild degenerative The Veteran had an injury to his wrist during a period of ACDUTRA. The Veteran’s STRs note that in May 1986 that Veteran sustained an injury to his left wrist. However, the Board finds that probative evidence of record does not establish a nexus between the Veteran’s injury during service and his current degenerative joint disease. Following the May 2010 VA joints examination, the VA examiner noted: I am asked to give an opinion if his current left wrist condition is due to his military service. Based on [the Veteran’s claims file], patient’s history, and my exam, specific attention is paid to left wrist injury on 05/14/1986, I believe his current left wrist condition is less likely as not due to his military service. This is based on the fact that the service treatment record for 05/14/1986 states left wrist contusion. There were no fractures on x-rays. He was never followed up. [The Veteran] never complained of left wrist after this incident, was never seen for further treatment. If that left wrist injury in 1986 was responsible for the complaints in 2009, he would need to have had at least a fracture or severe trauma to damage the wrist to cause posttraumatic arthritis all these years later, and that does not appear to be the case. The Board acknowledges the Veteran’s submitted statements and testimony that his current left wrist disability was incurred during his active service and that it has bothered him intermittently since then. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 435. However, determining the etiology of the Veteran’s left wrist degenerative joint disease requires medical inquiry into the Veteran’s physiological and anatomical functioning. With regard to the specific issue in this case, whether his current left wrist degenerative joint disease was incurred during his active service, falls outside the realm of knowledge of the Veteran in this case. See Jandreau, 492 F.3d at 1377 n.4. Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. He is not competent to state that the symptoms he currently experiences are the result of his in-service injury. As a result, the probative value of his lay assertions is low. The opinion of the May 2010 VA examiner is of significantly more probative value. Finally, there is no other competent, credible, and probative medical or lay evidence or opinion of record to support the Veteran’s assertion that his currently diagnosed left wrist disability is etiologically related to his active service. At his hearing, the Veteran testified that doctors have told him that his in-service injury was the cause of his arthritis. The claims file is absent for a probative opinion from these physicians. Even assuming that the Veteran is a reliable historian and accurately asserts that such an opinion was provided, because it is not of record, the Board cannot assess the probative value of such a medical opinion. Specifically, the Board is unable to determine the factual basis or rationale supporting the reported opinion. The Veteran’s report that his physician provided a favorable opinion carries little probative weight and is not sufficiently persuasive to outweigh the findings of the VA examiner who reviewed the record, examined the Veteran, and provided a complete rationale for the findings. The preponderance of the evidence is against the claim for service connection for the Veteran’s left wrist disability. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. REMANDED Entitlement to service connection for a back disability, to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a back disability, to include as secondary to service-connected disabilities is remanded. The Veteran contends that his current back disability was caused or aggravated by his service-connected scar, status post pilonidal cyst removal. He asserts that his current back disability was caused or aggravated by a pilonidal cyst surgery completed during the Veteran’s active service in 1960. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran has a current back disability. A November 2009 VA spine examination diagnosis the Veteran with lumbar degenerative disc disease. The November 2009 VA spine examiner explains: I do not believe his current lumbosacral spine degenerative disc disease is related to his pilonidal cyst surgery in 1960. This is due to the fact he states he just started developing back pain 2 years ago and the cyst was removed 49 years ago. If it was due to his surgery he would have had back pain within a few years after the surgery. He would not have just developed back pain recently. The back pain he has is due to degenerative disc disease and aging. The opinion is adequate with regard to the causation prong of a secondary service connection claim. However, it is inadequate with regard to the aggravation prong of a secondary service connection claim. See 38 C.F.R. 3.310. The November 2009 opinion only indicates that the Veteran’s current back disability was not caused by his pilonidal cyst surgery. The medical opinion does not address if the Veteran’s current back disability was aggravated beyond its natural progression by his service-connected status post-pilonidal cyst surgery. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. Atencio v. O’Rourke, 30 Vet. App. 74 (2018). Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to a suitable clinician so a supplemental opinion may be provided. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner should opine as to whether: a) Any lumbar spine disability shown since the current claim was filed in 2010 at least as likely as not (50 percent or greater) had its onset in service or is the result of a disease or injury in service. b) It is at least as likely as not (50 percent or greater) that disability was aggravated beyond its natural progression by his service-connected disability. The examiner must account for the Veteran's report of symptoms beginning in approximately 1960. If the examiner rejects the Veteran's reports, the examiner must provide reasons for doing so. The absence of supporting records is not, standing alone, sufficient reason to reject the Veteran's reports. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then readjudicate the claim. If the benefit sought on appeal is not granted, the Veteran and his agent should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel