Citation Nr: 18157553 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 10-26 163 DATE: December 12, 2018 ORDER Entitlement to service connection for a right wrist disability is denied. Entitlement to service connection for a left leg disability is denied. REMANDED Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right wrist disability began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The Veteran does not have a left leg disability that is due to disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right wrist disability are not met. 38 U.S.C. §§ 1131, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a left leg disability are not met. 38 U.S.C. §§ 1101, 1131, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from September 1977 to September 1981. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision by the Chicago, Illinois Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, granted service connection for bilateral hearing loss and assigned a noncompensable disability rating, denied service connection for a right wrist sprain, and denied service connection for a left leg condition (unspecified). The Veteran timely filed a notice of disagreement (NOD) and substantive appeal, via a VA Form 9, where he specifically limited his appeal to the issues as noted above. In July 2014 and December 2016, the Board remanded the claims for further development. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). 1. Entitlement to service connection for a right wrist disability The Veteran contends that his right wrist disability is related to service; specifically, an in-service right wrist sprain. Service treatment records (STRs) reflect that in May 1978, the Veteran was seen for pain to his right wrist. The examiner noted that there was no swelling, little tenderness, no deformity, and good range of motion. The examiner noted an impression of a sprained right wrist. On May 25, 1978, the Veteran was seen for a follow up on his wrist sprain. Again, no swelling was noted, his range of motion was good, there was no deformity, and he had some tenderness. He was advised to use an ace wrap. The August 1981 separation report of medical examination reflects a normal clinical evaluation for the Veteran’s upper extremities. Post-service, a November 2009 VA examination report reflects that the Veteran reported that he had right hand and wrist pain while in service and the onset of symptoms began at some point in time in the late 1970’s. The examiner noted that he had to have a chaperone throughout the examination due to how the Veteran responded to the examiner’s questions. He reported that the Veteran was hostile throughout all the questioning and consistently used profanity. He reported that he attempted to examine the Veteran the best he could, but the Veteran was very uncooperative. On examination, the examiner reported that he could not appropriately evaluate the right hand and wrist region. He reported that the Veteran basically held his hand and wrist in a fixed position and was unwilling to allow the examiner to move his hand and he refused to move his hand or wrist at all actively or passively. The examiner noted that none of his joints had any kind inflammatory arthritis and crepitus. There was no synovitis, warmth, redness, swelling, or other signs of systemic inflammatory arthritis or underlying connective tissue disease that would explain the Veteran’s severe mentioned symptoms. The Veteran was diagnosed with previous right wrist injury with no residual abnormality. The examiner clarified that he could not find any specific diagnoses for a previous right wrist/hand condition as he did not believe there was chronic, current, underlying diagnoses or disability for those specific regions. He went on to explain that the Veteran was diagnosed with multiple areas of strain, sprains, and spasms and those sorts of soft tissue conditions are usually self-limited and resolve when activity decreases or normalizes. The Veteran did not have any injuries like that of a fracture or dislocation which predisposed him to degenerative arthritis or underlying chronic conditions. The examiner concluded that the Veteran had so many complaints that one would be concerned about there being an underlying connective tissue disease or inflammatory arthritis, but his clinical scenario is inconsistent with that picture—not just on examination but also his laboratory and radiographic evidence did not support any sort of underlying connective tissue disease or systemic inflammatory process that would lead to his many diffuse his complaints. An August 2014 VA examination report notes a diagnosis of degenerative joint disease (DJD) of the bilateral wrist. The examiner reported that STRs reflect a right wrist sprain in May 1978 with no swelling, good range of motion, and no further mention of a right wrist condition. The Veteran reported that he had wrist pain for the past six to seven years. He reported stiffness and swelling in the morning in his bilateral wrists. The examiner found that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner reported that based on the examination and the available documentation, the Veteran had a diagnosis of bilateral wrist arthritis. He reported that he was treated for a sprain in service which was mild and left no residuals. He stated that there was no mention of wrist condition on separation examination. He reported that there was no documented medical evidence of treatment of right wrist condition in the years since discharge from service. He concluded that the Veteran had osteoarthritis of the bilateral wrist which is a condition of wear and tear that develops over the years and is less likely as not (less than 50 percent probability) related to an old sprain of the soft tissue of right wrist which was adequately treated in 1978, resolved, and from which there are no sequelae. Private treatment records from Dr. Okereke reflect that in December 2014, the Veteran reported back pain and neck pain that radiated down to the left arm and thigh, and down his right arm and thigh which the doctor stated resulted related to time in the military from 1977 to 1981. In an October 2015 letter, Dr. Okereke reported that he has been treating the Veteran for multiple chronic infirmities to include chronic bilateral hand and wrist pains likely from advancing osteoarthrosis. He reported that it was his professional medical opinion that his bilateral hand and wrist pains were exacerbated or caused by his time in the military. VA treatment records reflect weakness in the wrist. Upon review of the evidence of record, the Board finds that service connection for a right wrist disability is not warranted. The medical evidence of record reflects that the Veteran has a diagnosis of DJD in the right wrist. Therefore, a current disability has been established. Consequently, the issue at hand is whether there exists a relationship between the Veteran’s right wrist disability and service. There are conflicting medical opinions regarding a nexus between the Veteran’s current right wrist disability and service. The Board finds the specific reasoned opinion of the August 2014 VA examination to be more probative. The August 2014 VA examiner provided his opinion based on an accurate characterization of the evidence, took into account the Veteran’s statements, and addressed the in-service right wrist sprain. Significantly, he provided reasoning for why the current diagnosis is not related to the in-service right wrist sprain. To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). Contrary to the VA medical opinion, Dr. Okereke conflictingly reported that the Veteran’s bilateral hand and wrist pains likely were from advancing osteoarthrosis and reported that his bilateral hand and wrist pains were exacerbated or caused by his time in the military. Dr. Okereke did not report whether or not the Veteran’s STRs and medical treatment records were reviewed in connection with this medical opinion. Furthermore, he did not provided reasoning for his conclusory statement. Additionally, the Veteran, himself, during the 2014 VA examination reported that he had wrist pain for the past six to seven years, indicating that his wrist disability was not continuous since service. Thus, this opinion is not adequate. For the foregoing reasons, entitlement to service connection for a right wrist disability is not warranted. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a left leg disability The Veteran contends that he has a left leg disability that is related to an in-service fall. STRs reflect that in April 1978, the Veteran was seen for a fall. The examiner noted that the Veteran fell on his left thigh right above the knee. He reported that there was only small abrasion. He noted that there was full range of motion in the left leg and mild tenderness. As his assessment, he noted soft tissue contusion. The examiner stated that there should be no marching or running for five days. The August 1981 separation report of medical examination reflects a normal clinical evaluation for the Veteran’s lower extremities. Post-service, a November 2009 VA examination report reflects that the examiner found that the Veteran had a previous left leg injury with no residual abnormality. As noted above, a chaperone was present throughout the examination due to the Veteran’s hostile behavior and consistent use of profanity. The Veteran was uncooperative. The examiner noted that the left leg was grossly normal. There was no length strength abnormality, no bony abnormality, and there did not appear to be any neurological involvement either. Additionally, the examiner reported that none of his joints had any kind inflammatory arthritis and crepitus. There was no synovitis, warmth, redness, swelling, or other signs of systemic inflammatory arthritis or underlying connective tissue disease that would explain the Veteran’s severe mentioned symptoms. The examiner reported that he could not find any specific diagnoses for a left leg condition as he did not believe there was chronic, current, underlying diagnoses or disability for those specific regions. The examiner reported that the Veteran was diagnosed with multiple areas of strain, sprains, and spasms and those sorts of soft tissue conditions are usually self-limited and resolve when activity decreases or normalizes. He stated that the Veteran did not have any injuries like that of a fracture or dislocation which predisposed him to degenerative arthritis or underlying chronic conditions. The August 2014 VA examination report reflects that the examiner reviewed the STRs and noted that the Veteran had a soft tissue contusion after falling on his left leg in April 1978. He noted that he was placed on medical profile for five days and had full range of motion in his left leg, mild tenderness, and no crepitus. The Veteran reported that he injured his left leg in service and has pain from his thigh to his foot since then. An examination of the left thigh and knee were normal. He concluded that there is no disability of the left lower extremity except the left knee arthritis which was previously determined not to be service-connected. He reported that the Veteran sustained a soft tissue injury to left thigh in April 1978, there was no further mention of left thigh condition in service, and no diagnosis or treatment of left thigh condition in ensuing years. Private treatment records from Dr. Okereke reflect that in August 2014, the Veteran complained of pain to the feet, left leg, left thigh, and lower back which resulted, the Veteran stated (but could not recall exactly), from the Marines for several years. An examination of his lower extremities revealed tenderness in his leg/ankle. In December 2014, the Veteran complained of back pain and neck pains radiating down to the left arm and left thigh and down to the right arm and right thigh, which Dr. Okereke stated resulted related to time in the military from 1977 to 1981. VA treatment records were reviewed in connection of the claim. No left leg diagnosis was recorded in the records. Upon review of the evidence of record, the Board finds that service connection for a left leg disability is not warranted. The weight of the above evidence reflects that the Veteran has not had a left leg disability during the pendency of the claim. While a “disability” for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any “other physical or mental defect.” 38 U.S.C. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing “eligibility for disability compensation for service connected disabilities”), here the evidence does not reflect any notation of physical defect of the Veteran’s left leg. As the Veteran has not had a left leg disability, entitlement to service connection is not warranted. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (“Without a current disability, of course, there can be no service connection and, thus, no disability compensation”). The Board notes that the Veteran has reported that he has had left leg pain following service. Recently the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In that decision, the Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” However, the August 2014 specifically found that the Veteran did not have functional loss and/or functional impairment of the lower leg. Thus, “pain alone” of the left leg does not signify a left leg disability. For the foregoing reasons, entitlement to service connection for a left leg disability is not warranted. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is remanded. In his December 2009 NOD, the Veteran reported that his hearing loss has worsened. Additionally, in the November 2018 appellate brief, the Veteran’s representative requested an updated VA examination. VA’s duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran’s disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124). The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect due to the passage of time and a possible increase in disability. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (“Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination”). See also 38 C.F.R. § 3.327 (Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect”). The Veteran’s last VA examination was in August 2016. Since the Veteran is claiming he is experiencing worsening symptoms, and this change in disability would possibly affect his disability rating, the Board finds that a remand is appropriate in order for the Veteran to undergo a new VA examination. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current severity of the service-connected bilateral hearing loss. All indicated tests and studies should be performed and findings reported in detail. The claims folder must be made available to the examiner for review prior to examination. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel