Citation Nr: 18155645 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-48 056 DATE: December 4, 2018 ORDER Service connection for a right wrist condition, to include cubital tunnel syndrome and De Quervain’s tenosynovitis, is denied. REMANDED The issue of service connection for left shoulder acromioclavicular joint arthritis, to include as secondary to service-connected lumbar spine disc disease, is remanded. FINDING OF FACT The Veteran’s right wrist condition, to include cubital tunnel syndrome and De Quervain’s tenosynovitis, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a right wrist condition, to include cubital tunnel syndrome and De Quervain’s tenosynovitis, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from March 1990 through March 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran’s representative submitted to revoke representation pursuant to 38 C.F.R. § 14.633. The Veteran is unrepresented. 1. Entitlement to service connection for a right wrist condition, to include cubital tunnel syndrome and De Quervain’s tenosynovitis. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Cubital tunnel syndrome, as an organic disease of the nervous system, is a “chronic disease” under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). De Quervain’s tenosynovitis is not a “chronic disease” under 38 C.F.R. § 3.309 (a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303 (b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are not applicable to that diagnosis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as cubital tunnel syndrome, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive 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. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Veteran has cubital tunnel syndrome, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not manifested or diagnosed in service or within a presumptive period, and continuity of symptomatology is not established. Treatment records show the Veteran was not diagnosed with cubital tunnel syndrome until September 2012, 18 years after his separation from service and years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of cubital tunnel syndrome. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). At separation, the Veteran indicated discomfort with flexion of his right wrist. However, the evaluator indicated there was full range of motion. See November 1993 Report of Medical Examination. There are no post-service records reflecting any right wrist injury until 2010. See August 2010 Primary Care Physician Note. Between the Veteran’s separation examination and this August 2010 note, there are no objective reports of any right wrist injury. There were no sufficient manifestations to identify the disease entity in service or within the first post-service year nor has a continuity of symptomatology been shown, as no evidence indicates continuous symptoms since service. Therefore, the preponderance of the evidence is against a finding that the Veteran’s cubital tunnel syndrome was chronic in service or during the presumptive period and that a continuity of symptomatology exists. Service connection for the Veteran’s right wrist condition, to include cubital tunnel syndrome and De Quervain’s tenosynovitis, may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right wrist condition and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Although the Veteran indicated in his report of medical examination at separation discomfort with flexion of his right wrist, symptoms of numbness and tingling were not noted in his service treatment records. See November 1993 Report of Medical Examination. The evaluator indicated there was a full range of motion. Id. These medical records are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). As discussed above, treatment records show the Veteran was not diagnosed with cubital tunnel syndrome until September 2012, 18 years after his separation from service. While the Veteran believes his right wrist condition is related to an in-service injury, event, or disease, including 1993 right wrist treatment for De Quervain’s tenosynovitis, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). A September 2012 VA examiner opined that the Veteran’s cubital tunnel syndrome is not at least as likely as not related to an in-service injury, event, or disease. The examiner opined that the Veteran’s symptoms of numbness and tingling were not noted in the service treatment records. The examiner further opined that the Veteran’s De Quervain’s tenosynovitis is not at least as likely as not related to an in-service injury, event, or disease. The examiner opined that the Veteran does not have evidence of De Quervain’s tenosynovitis, which was diagnosed in service. The Veteran’s decreased range of motion on dorsiflexion is less likely as not related to the service as separation exam dated November 3, 1993 notes “FROM,” i.e. full range of motion. The examiner’s opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the competent medical evidence. Therefore, the preponderance of the evidence is against a finding of a nexus and service connection on a direct basis is not warranted. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that the Veteran’s right wrist condition is causally related to his service, manifested within an applicable presumptive period, or was chronic in service. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for left shoulder acromioclavicular joint arthritis, to include as secondary to service-connected lumbar spine disc disease, is remanded. A September 2012 VA examiner opined whether the Veteran’s left shoulder condition is proximately due to or the result of his service-connected injury to lumbar spine with disc diseases at L5-S1. However, the VA examiner did not opine whether the Veteran’s left shoulder condition was incurred in service or caused by an in-service injury, event, or illness. The matter is REMANDED for the following action: 1. Request the Veteran provide any service treatment records he possesses or identify and secure any relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record. 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. Return the file to the examiner who conducted the September 2012 VA examination. If that examiner is no longer available, conduct the following development with a similarly qualified examiner. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinion: (a.) Identify whether the Veteran’s current left shoulder acromioclavicular joint arthritis was incurred in service or caused by an in-service injury, event, or illness. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner’s attention is drawn to the following: • November 1993 Report of Medical Examination at Separation indicating no arthritis and no painful or “trick” shoulder or elbow. See “STR - Medical,” received March 23, 2001, page 15 of 64. • September 2010 Physical Therapy Note indicating date of onset for left shoulder pain at December 2009. See “CAPRI,” received December 26, 2012, page 20 of 22. • September 2011 Statement in Support of Claim indicating the Veteran’s left shoulder condition is a result of an injury during strengthening exercises for his service-connected back condition. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. (Continued on the next page)   The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel