Citation Nr: 1815950 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-21 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right wrist disability. REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1979 to September 1980, and in the Army National Guard from April to July 1977. This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 2012, the Board remanded the claim to obtain ongoing treatment records and to provide the Veteran with a VA examination. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his current right wrist disability was incurred in service. CONCLUSION OF LAW The criteria for service connection for a right wrist disability have been met. 38 U.S.C. § 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.655 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the Veteran's service treatment records are incomplete. In 1982, the Veteran's records were unavailable. The few records available were received sometime prior to the 2012 rating decision on appeal. However, those records are mostly blank except for dental records. The AOJ (Agency of Original Jurisdiction) attempted to obtain records from the Fort Carson hospital cited by the Veteran, but were informed that all records older than 3 years old were transferred to the National Personnel Records Center (NPRC) in St. Louis, Missouri. The AOJ noted that since the limited service treatment records they received were from NPRC, that those limited records were the extent of the available records for the Veteran. Although the AOJ did not provide a memorandum of unavailability regarding the records, the responses show that the records are unavailable, and the AOJ noted that no additional records were available in the August 2012 rating decision. The Board observes that, where records are unavailable, "VA has no duty to seek to obtain that which does not exist." See Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile]. So it is in this case. The United States Court of Appeals for Veteran's Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). As noted above, the Veteran's service treatment records are unavailable. The Veteran initially filed a claim of entitlement to service connection for a right wrist disability in January 1981. On this claim, he indicated that he fractured his right wrist in August 1979, during his Army service. The Veteran was provided a VA examination in July 1981, where he reported that he fractured the radius and ulna of his right wrist in July 1979. He had a short cast for a number of weeks. The examiner noted that the Veteran's service treatment records were unavailable. The Veteran noted that after the cast was removed, he had a hard area on the dorsum of his hand at the 2nd metacarpal bone. The 2nd metacarpal was tender, and if he attempted to make a fist, it was painful. On physical examination, he had a bony protuberance on the dorsum of the mid portion of the second metacarpal that was slightly tender. His grip was considered to be slightly weaker than normal and in comparison to this left hand, in that they were equal in strength despite the fact that the Veteran was right-handed. An accompanying x-ray showed a possible old healed fracture of the distal radius, and an old healed oblique fracture of the midshaft of the second metacarpal which was in good position and alignment. There was also an old healed fracture of the distal neck of the 5th metacarpal with slight residual dorsal angulation at the fracture site. VA treatment records which were obtained following the February 2016 Board remand, showed that the Veteran complained of right wrist pain in January 2014. He stated he had suffered an right wrist fracture in service. He again complained of right wrist pain in March 2014, although he stated the wrist fracture occurred in 1981. A March 2014 x-ray revealed mild degenerative arthropathy in the radiocarpal joint. The Veteran was scheduled for a VA examination in March 2016. He failed to report to the scheduled examination. His attorney has noted that, unfortunately, the Veteran is currently incarcerated, and was unable to attend this scheduled examination for that reason. Although incarceration is "good cause" to fail to report to the VA examination; instead of remanding for additional attempts to schedule an examination, the Board will determine the claim based upon the evidence of record. See 38 C.F.R. § 3.655. As this is a favorable determination, the Veteran is not disadvantaged by VA's failure to attempt to provide an additional examination. Although an examination may be necessary for the AOJ to properly rate his disability, this decision is based solely on service connection. Here, the Veteran filed a claim for service connection for a right wrist fracture in January 1981, and that he was discharged from service in September 1980. The July 1981 VA examination indicated that the Veteran had well-healed fractures and he complained of pain in the 2nd metacarpal, at the site of one of his fractures. As the Veteran's service treatment records are unavailable, he is presumed to have entered his period of service in 1979 in sound condition. There is no evidence of record demonstrating that the Veteran had a right wrist fracture prior to active duty service. His reports of an in-service wrist injury and treatment are credible and competent. As his July 1981 VA examination was less than a year after his discharge from service, and his fractures were noted to be well-healed at that time, the Board will resolve reasonable doubt in the Veteran's favor that he has provided a truthful accounting of in-service fractures to the right wrist. As treatment records since his claim to reopen continue to show that he had right wrist disability, a "current disability" has been shown despite the Veteran's inability to report to his scheduled VA examination. Entitlement to service connection for a right wrist disability is warranted. ORDER Entitlement to service connection for a right wrist disability is granted. ____________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs