Citation Nr: 18158845 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 18-18 845 DATE: December 18, 2018 ORDER Entitlement to service connection for left wrist degenerative arthritis with joint sprain (left wrist disability) is denied. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to an initial disability rating in excess of 10 percent for a lumbosacral strain (back disability) is remanded. FINDING OF FACT A left wrist condition was noted on the Veteran’s entry to service and the disability was not aggravated by his active service. CONCLUSION OF LAW The Veteran’s left wrist disability was not aggravated by service. 38 U.S.C. §§ 1110, 1111, 1153, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from February 2012 to February 2016, and additional unverified Reserve service. In June 2016, the RO denied service connection for left wrist degenerative arthritis with joint sprain, status post left wrist fracture. In May 2017, the Veteran submitted additional evidence. The RO continued the denial in a July 2017 rating decision. Because the record does not indicate that the Veteran was provided with a “directly responsive” determination that the evidence he submitted was not new and material, his claim has remained open. See Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014) (“[T]he VA must provide a determination that is directly responsive to the new submission and... until it does so, the claim at issue remains open.”). Additional evidence in the form of VA treatment records was obtained after the case was certified to the Board, but this evidence is duplicative. Thus, a waiver or remand for AOJ consideration is not warranted. 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). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2018); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Left Wrist The Veteran contends that his currently diagnosed left wrist disability is related to his period of active service. Specifically, he maintains that he injured his wrist during a parachute jump at Fort Bragg. The DD 214 reflects receipt of a parachute badge. Service connection is also warranted if a preexisting disorder was aggravated by a veteran’s active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The Veteran acknowledges a pre-existing left wrist fracture, but contends that he was “sound” when he entered active service. See October 2018 Informal Hearing Presentation. The Board finds that a pre-existing left wrist disability was noted on the Veteran’s August 2011 active duty enlistment examination. Specifically, the clinician noted a prior wrist fracture that required a cast, but was not currently disabling. See Verdon v. Brown, 8 Vet. App. 529, 534-535 (1996) (holding that a disorder can be asymptomatic, but still considered as “noted” on entrance). Thus, the presumption of soundness does not apply. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); see also Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). The case is then one of service aggravation. In a January 2015 service record, the Veteran complained of left wrist pain of 3-4 months’ duration and noted that it was “popping lately a lot.” He denied any trauma. The doctor noted the Veteran had constant pain, limited range of motion, and that his wrist was getting progressively worse. X-rays showed an ununited ulnar styloid process fracture. In February 2015, the Veteran reported wrist pain of 6-7 months’ duration. He received a temporary physical profile. A March 2015 CT scan showed cystic formation of both sides of the distal radioulnar joint, and a March 2015 X-ray showed an old appearing ununited styloid fracture. In April 2015, the doctor reviewed the X-rays and CT scan and stated that the Veteran had “a very difficult problem.” He noted “signs of degenerative changes both between the distal ulna and proximal lunate as well as in the distal radioulnar joint.” He recommended against surgery and advised the Veteran to tolerate the pain and avoid aggravating activities. The Veteran received a permanent physical profile, which has continued. See March 2017 Physical Profile Record. In October 2015, the Veteran submitted to a VA examination. The examiner reviewed the claims file and diagnosed chronic left wrist sprain. No nexus opinion was provided. In May 2016, the RO obtained an opinion using the Acceptable Clinical Evidence (ACE) process. The examiner noted the Veteran’s in-service complaints of left wrist pain and medical treatment. He noted that in-service X-rays showed mild degenerative joint disease (DJD) and an old fracture. Nevertheless, the examiner concluded the Veteran’s chronic sprain with DJD was not due to his military service and instead was “a natural progression of a fracture over a period of years.” The examiner determined that the Veteran’s pain would have occurred despite his military service. November 2018 X-rays showed an old fracture of the ulnar styloid. The May 2016 VA examiner’s opinion was based on a thorough review of the Veteran’s medical records. The opinion is supported by a rationale and is based on an accurate understanding of the Veteran’s medical history. As there is no medical opinion to the contrary, it is persuasive. The Board finds that the evidence does not show aggravation of the Veteran’s pre-existing left wrist disability during his active service. That it, based on the lay and medical evidence, the Board finds there was no increase in disability beyond any temporary flare-up. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the left wrist disability is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The condition involves a pathological process that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of the origin of the diagnosed condition is a medical question requiring medical training, expertise and experience. REASONS FOR REMAND 1. Bilateral Knees The Veteran seeks service connection for a bilateral knee disability. Specifically, he maintains that his knee pain is due to repeated parachute jumps during his active service. The August 2011 enlistment examination contains a normal clinical evaluation of the lower extremities. STRs contain no findings, complaints, or diagnoses related to the Veteran’s knees. The Veteran submitted to a February 2018 VA examination. At that time, he was employed in IT support. He reported bilateral knee pain ever since a physical fitness test during active service. He stated that the pain stopped him from running and interfered with playing sports. The examiner found no diagnosis of a right or left knee disability. However, she did find that the Veteran’s knee pain resulted in functional impairment, to include the ability to perform occupational tasks, noting that the pain prevented him from running and interfered with playing sports. She opined that it “is less likely than not” that the Veteran’s bilateral knee pain was caused by parachute jumps in the military. She acknowledged the Veteran’s lay report of in-service knee pain, but found that this was acute and transitory because there are no additional visits, complaints, or reports of sequalae from that incident. It is recognized that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). Remand is necessary for an addendum opinion. Although the examiner determined that the Veteran’s pain causes functional impairment, it is unclear how interference with running and playing sports reaches the level of functional impairment of earning capacity given the Veteran’s current employment in IT support. 2. Lumbosacral Strain The Veteran’s private medical records were submitted as part of the claims file. In a November 2018 record, the Veteran reported constant, mild back pain for the past 3 months. Furthermore, the private examiner specifically noted the Veteran’s low back disability had worsened. The Veteran’s most recent VA examination was in June 2017. Thus, a new VA examination is necessary to assess the current severity of the Veteran’s disability. The matters are REMANDED for the following action: 1. Return the claims file to the VA examiner who conducted the February 2018 VA knee examination (or another examiner if unavailable) for preparation of an addendum opinion. The entire claims file should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. The examiner should determine whether the Veteran’s currently diagnosed bilateral knee pain has a functional impairment on his earning capacity. The examiner should address the Veteran’s current employment. A complete rationale must be provided for any opinions expressed. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his lumbosacral sprain disability. 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. Additionally, the examiner must should range of motion testing in the following areas for the lumbar spine: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must provide all findings, along with a complete rationale for any opinions provided. 3. Then, readjudicate the claims. If any decision is averse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. Rebecca N. Poulson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel