Citation Nr: 1823360 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-27 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right wrist disability. 2. Entitlement to service connection for seasonal allergies. 3. Entitlement to service connection for high cholesterol. ORDER Service connection for a right wrist disability is denied. Service connection for seasonal allergies is denied. Service connection for high cholesterol is dismissed. FINDINGS OF FACT 1. A current right wrist disability is not related to service. 2. Current seasonal allergies are not related to service. 3. The Veteran withdrew his claim of entitlement to service connection for high cholesterol after certification to the Board. CONCLUSIONS OF LAW 1. A right wrist disability was not incurred in, or aggravated by, service. 38 U.S.C. §§ 1110, 1111, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. Seasonal allergies were not incurred in service. 38 U.S.C. §§ 1110, 1111, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria for withdrawal of an appeal have been met regarding the claim of entitlement to service connection for high cholesterol. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew the appeal regarding the claim of entitlement to service connection for high cholesterol on the record of the Board hearing. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to that issue. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2014). As the appeal has been withdrawn, the Board finds that dismissal is appropriate. Service Connection Claims The appellant is a veteran (the Veteran) who had active duty service from May 1994 to November 1996. He had a subsequent period of active duty which is non-qualifying for VA purposes. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the RO in Detroit, Michigan. In December 2017, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2017). The Veteran was informed of the basis for the RO's denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. The Veteran was afforded an additional period of 60 days following the hearing to submit additional evidence. A transcript of the hearing is associated with the claims file. 38 C.F.R. § 3.103 (2017). VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Diseases of allergic etiology may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380 (2017). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service treatment records reveal that, when examined, accepted, and enrolled in April 1994, normal findings were recorded for the upper extremities, nose, and sinuses. A report of medical history completed by the Veteran on the same day reveals the Veteran's account that he had no history of, or current, painful or swollen joints, sinusitis, or hay fever. A January 27, 1995, Clinical Note reveals complaint of nasal congestion for which the Veteran was given Sudafed. A report of medical examination performed on February 8, 1995, reveals normal findings for the upper extremities, nose, and sinuses. A report of medical examination performed on August 5, 1996, which serves as the service separation examination, reveals normal findings for the upper extremities, nose, and sinuses. A report of medical history completed by the Veteran on the same day reveals the Veteran's account that he had no history of, or current, painful or swollen joints, sinusitis, or hay fever. Although conducted during a non-qualifying period of service, a report of medical examination performed on August 21, 1997, also reveals normal findings for the upper extremities, nose, and sinuses. A report of medical history completed by the Veteran on the same day reveals the Veteran's account that he had no history of, or current, painful or swollen joints, sinusitis, or hay fever. Subsequently, there is no pertinent evidence until the current claim. A May 24, 2010, VA Orthopedic Clinic Note cites EMG and nerve conduction studies revealing chronic carpal tunnel syndrome with acute tendonitis (Record 09/15/2017 at 135). An August 23, 2010, VA Orthopedic Clinic Note reveals that carpal tunnel syndrome surgery was performed on that date (Record 09/15/2017 at 109). A March 13, 2014, Emergency Department Note reveals complaint of sinusitis. Also noted was a diagnosis of allergic rhinitis (Record 07/13/2015 at 90). A December 1, 2014, VA Orthopedic Clinic Note reveals complaint of right wrist carpal tunnel syndrome (Record 09/15/2017 at 146). A November 21, 2016, Orthopedic Surgery Note reveals X-ray findings of an old radius malunion with mild deformity; ulnar head deformity, old and probably posttraumatic; and a mild incongruity of the distal radial-ulnar joint, with possible early arthritis. MRI results showed a mild dorsal subluxation at the distal radial-ulnar joint; no definite arthritis; a slight ulnar positive variance, but no substantial changes consistent with ulnar impaction of carpus or ulnar head; triangular fibrocartilage complex intact, but appears deformed slightly by ulnar positive variance; no intrinsic ligament tears; no radial-collateral arthritis; and a small mass, not compressing structures (Record 09/15/2017 at 61). A January 31, 2017, Pre-Operative Note reveals a history of pre-existing hypoesthesias from transverse wrist laceration many years ago with median nerve injury and partial sensory recovery. The Veteran was having to shake his fingers out, with increased numbness. Nerve conduction testing showed deteriorating median nerve conduction. In 2009, he had tenolysis and neurolysis. After that, his finger flexion improved, but not really his sensation. He had full-strength thenar function (Record 09/15/2017 at 27). After a review of all of the evidence, the Board finds that a current right wrist disability is not related to service and was not aggravated by service. The Board also finds that a current allergic disability is not related to service. In this case, no wrist disability was noted at examination, acceptance, and enrollment into service. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease (1) existed before acceptance and enrollment and (2) was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2017); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran has never denied that he sustained a serious pre-service injury to the right upper extremity. The Veteran and several family members have submitted affidavits attesting to this injury, which was described as a cut from a sword through the muscles, nerves, and tendons surrounding his right wrist, and which required extensive reconstructive surgery. The Veteran and his family members are competent to describe the injury and the resulting surgery, as well as his observable symptoms at the time of service entrance. The Veteran has stated that he was unable to straighten his fingers out completely when he entered service. As these facts are undisputed, the Board finds that there is clear and unmistakable evidence of a pre-existing right wrist injury with resulting functional impairment. There are no pertinent complaints, treatments, or diagnoses at any time during service regarding the right wrist. The Veteran does not maintain that there was a specific injury or disease in service. He has described in written argument and hearing testimony undertaking strenuous physical activities in service, which he maintains aggravated his condition gradually over time. However, he was afforded an examination at service separation which evaluated, among other things, his upper extremities. The normal findings for the upper extremities at service separation, and again almost 1 year later, in August 1997, provide affirmative evidence that there was no aggravation of the condition in service or in the immediate post-service period. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) (VA must rely on affirmative evidence to prove that there was no aggravation). In other words, although the Board has found that there was a pre-existing right wrist injury, it was not so disabling as to have been noted on the service entrance examination. The fact that it was also not noted at service separation, and in August 1997, is affirmative evidence that there was no aggravation in service. Based on this affirmative evidence of normal upper extremities at service separation and after service separation, the Board finds that clear and unmistakable evidence of establishes that there was no aggravation of the pre-existing right wrist disability during service; and the presumption of soundness is rebutted. The Board notes that, even if the Board were to find that the presumption of soundness was not rebutted, this simply has the effect of turning the claim into a standard service connection claim. Wagner, 370 F.3d at 1094. As there is no persuasive evidence of an injury or disease of the right wrist in service, and as the Veteran's upper extremities were normal at service separation and again 1 year later, in August 1997, service connection would not be warranted under this alternative scenario. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (the Board has the fundamental authority to decide a claim in the alternative). Regarding the claimed allergies, it is uncontested that the Veteran has a current diagnosis of allergic rhinitis. However, there is no injury or disease noted in service, and no medical opinion that purports to relate the diagnosis to service. The Veteran has testified that he suffered the same symptoms in service that he now experiences. He related the onset of this condition to exposure to chemicals, including jet fuel, paint, paint thinner, and primer. However, despite the single treatment in service for congestion, there were normal findings at service entry and service separation. Thus, the only comparative study of severity at enlistment and subsequently shows that the condition, to the extent it existed at all during service, was not worsened. 38 C.F.R. § 3.380. His assertions regarding a relationship between current symptoms and remote exposure to chemicals amounts to lay speculation. Regarding the right wrist, the Veteran essentially asserts that strenuous physical activities in service constitute an in-service injury. However, given the normal findings at service separation, this assertion also amounts to lay speculation. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). The Board finds that relating any of the currently diagnosed neurological or musculoskeletal disorders to temporally remote strenuous activities in service is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Such an opinion requires specialized medical knowledge and is not capable of lay observation. Moreover, relating a current diagnosis of an allergy to similar symptoms in service or environmental exposures in service also requires specialized medical knowledge. Accordingly, the Veteran's lay statements are not competent evidence of an etiologic relationship between these claimed conditions and service. Moreover, without a right wrist injury or disease in service, there is also no duty to obtain a VA examination and medical opinion regarding direct service connection. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's claimed right wrist disability is related to his military service consists of his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not necessary. Regarding seasonal allergies, although the Veteran was treated for congestion in service, these symptoms were not attributed to allergies either in service or after service. Accordingly, the Board also finds that referral for a VA examination is not necessary. In sum, the Board finds that the Veteran's right wrist disability clearly and unmistakably predated service and clearly and unmistakably was not aggravated by service. In the alternative, the Board finds that a current right wrist disability is not related to service. In light of these findings, the Board concludes that service connection/aggravation for the claimed right wrist disability is not warranted. The Board further finds that the claimed seasonal allergies are not related to service. In light of this finding, the Board concludes that service connection for allergies is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD L. Cramp, Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs