Citation Nr: 1818016 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 12-09 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a right wrist disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Zi-Heng Zhu INTRODUCTION The Veteran had active service from March 1974 to April 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. FINDINGS OF FACT The preponderance of evidence is against a finding that any right wrist disability is etiologically related to any incident or injury incurred during active service. CONCLUSION OF LAW The criteria for service connection for a right wrist disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in September 2007 and in June 2008. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the March 2017 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Service connection may be presumed for certain chronic diseases, such as arthritis and organic diseases of the nervous system, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2017). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2017). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of a showing of a current disability, service connection cannot be granted. Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Right Wrist Disability The Veteran contends that her right wrist disability is etiologically related to a fall during active service. The Board finds that although the service medical records show that the Veteran was treated during active serve for issues associated with falling down a flight of stairs, the preponderance of the competent medical evidence of record is against a finding of an etiological connection between a currently diagnosed right wrist disability and the fall during service. Therefore, as the preponderance of the competent medical evidence of record is against the finding that the Veteran's current disability is related to any in-service injury, the claim for service connection must be denied. The service medical records show that in August 1974 the Veteran was seen for an injury during service after falling down a flight of stairs. During the following months, the Veteran was seen on several occasions for complaints of pain of the right elbow and right wrist. No further complaints or treatments for the right wrist are noted in the service medical records, or at separation from active service. During the course of the appeal, the Veteran underwent several VA examinations in September 2008, July 2014, and November 2016, to assess the nature and etiology of her claimed right wrist condition. The Board finds that a close review of the VA medical evidence, to include VA examinations prior to November 2016, shows some discrepancy with regard to the claimed right wrist disability. The record shows some indications of diagnoses ranging from degenerative joint disease (DJD), rheumatoid arthritis, radiculopathy of the upper extremities, to a normal wrist, as noted by the July 2014 VA examiner. However, in the Veteran's most recent November 2016 VA examination, the VA examiner ultimately clarified the Veteran's diagnosis for the right wrist after a comprehensive review of the medical history and claims file. Specifically, the examiner found definitive evidence of degenerative changes related to DJD in both wrists, and ultimately diagnosed bilateral equally diffuse DJD of the wrists. In arriving at that conclusion, the examiner explained that reviews of past X-rays did not demonstrate "destructive eroded changes" seen in rheumatoid arthritis. Therefore, the examiner explicitly found past diagnoses of rheumatoid arthritis to be incorrect and diagnosed bilateral DJD. The Board finds that diagnosis and analysis of the Veteran's past medical history to be adequate and complete, and to be the most probative evidence of record regarding the diagnosis of the current right wrist disability. However, with regard to establishing a relationship, between any current diagnosed right wrist disability and a fall during active service, the Board finds that a review of the competent medical evidence of record shows that the preponderance of evidence is against the claim. A September 2008 VA examination, assessing the general nature of all of the Veteran's claimed disabilities, provided no assessment as to the etiology of a right wrist disability. In April 2014, the Board remanded the claim to obtain an opinion regarding the nature and etiology of any right wrist disability. In a July 2014 VA examination, the VA examiner conducted an in-person examination, and reviewed the claims file and medical history. The examiner ultimately concluded that that the Veteran's right wrist was normal, with no disabilities to evaluate for etiology. Therefore, the VA examiner provided a generalized negative opinion, noting generally that none of the claimed musculoskeletal disabilities, to include of the hip, back, neck, or wrist were etiologically related to the her fall and injury during active service. The examiner, speaking in general terms, noted no complaints or symptoms for any of such disabilities for many years after service. Subsequently, VA obtained another VA examination and opinion regarding the Veteran's right wrist disability in November 2016. Exclusively assessing the nature and etiology of the right wrist disability, the VA examiner diagnosed bilateral DJD of the wrist, noting explicitly the lack of diagnosis in July 2014 was in error. The examiner opined that the right wrist DJD was unrelated to any aspect of the Veteran's active service. The examiner reasoned that since the Veteran's fall in 1974, and subsequent treatment for that injury during service, there had been no indication of recurrent issues, chronic symptoms, or diagnoses of disabilities related to the right wrist for several decades. The examiner noted that based on the late-onset nature of such a condition, the diffuse nature of the DJD, and the fact that it was bilateral, that the right wrist DJD was less likely than not related to any incident during active service, to include a fall. The examiner ultimately opined that the wrist disability was more likely age-related degenerative changes. The Board notes the available evidence of record is silent for nearly thirty years after active service with regard to complaints, treatments, or diagnoses relating to the right wrist. That fact was corroborated by the Veteran at the June 2013 Board hearing. When asked specifically whether she had any symptoms or sought treatment for any right wrist issues between separation from service and 2000, the Veteran stated she did not. The Veteran, during that hearing, explicitly noted that she did not start experiencing problems with the wrist until after 2000. The Board acknowledges the Veteran's contentions that the right wrist disability is related to a fall in service. However, the Veteran's statements are considered lay evidence. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2) (2017); Bruce v. West, 11 Vet. App. 405 (1998) (person that is not a medical expert is nevertheless competent to offer evidence of symptoms in support of a claim for increased rating); Layno v. Brown, 6 Vet. App. 465 (1994). Here, while the Board acknowledges that the Veteran is a registered nurse, with some knowledge of human anatomy and medicine, the Board finds that her testimony regarding the etiology of the claimed disabilities is less probative than that of the November 2016 VA examiner's opinion regarding nexus. In evaluating the probative value of competent medical evidence, the value of medical opinion evidence depends on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The credibility and weight to be attached to opinions are within the province of the adjudicators. Black v. Brown, 10 Vet. App. 297 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing medical data). It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. Owens v. Brown, 7 Vet. App. 429 (1995). The Board finds that the November 2016 VA examiner's opinion regarding the etiology of the Veteran's right wrist disability is more probative in that it was concluded after a thorough review of the Veteran's medical history, which included analyses of radiological studies, and was based on review and consideration of the entire claims file. While the Veteran's opinion may be informed by her professional medical knowledge from being a registered nurse, her expertise in the field of medicine is exceeded by that of the medical doctor who ultimately provided the VA examination, and that opinion was also based upon review of radiology studies and analysis of the type of arthritis found by those studies. The Veteran has not shown that she has specific expertise regarding pathology of orthopedic diseases and disabilities. Therefore, the Board finds the opinions to not be in equipoise and that the November 2016 VA examination opinion is more probative and dispositive of the claim for service connection. As the preponderance of the medical evidence is against the claim, service connection must be denied on a direct basis. The Board notes that service connection may also be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 (2012). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the continuity of symptomatology language in 38 C.F.R. § 3.303(b) restricts itself to the chronic diseases found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As arthritis is a chronic disease, the Board finds that continuity of symptomatology must be considered. 38 C.F.R. § 3.309(a) (2017). However, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's DJD of the wrist arose during the presumptive period of one year after service or that such disability has been ongoing since service. Not only does a review of the medical records from that time not show any treatment or diagnosis for such a condition, but the Veteran herself explicitly denied any symptoms of problems related to the claimed disabilities until decades after separation from service. Therefore, with no medical evidence of a disability of the wrist arising to a compensable degree within a year after service and no evidence of a continuity of symptomatology, the claim for service connection on a presumptive basis for a chronic disability must also be denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt shall be resolved in favor of the claimant. However, the Board finds that the preponderance of the evidence is against the claim for service connection and the claim must be denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right wrist disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs