Citation Nr: 20003960 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 19-10 961 DATE: January 16, 2020 ORDER Service connection for a right arm condition, to include arthritis, is denied. FINDING OF FACT The Veteran’s right arm condition, to include arthritis, did not manifest in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, and is not etiologically related to his active duty service. CONCLUSION OF LAW The criteria to establish service connection for a right arm condition, to include arthritis, have not been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from August 1974 through April 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Duty to Notify and Assist In a case in which a veteran’s service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist him in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215 at 217-18 (2005) (Court declined to apply “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). VA requested the Veteran’s service treatment records from the VA Records Management Center (RMC) in December 2014. 38 C.F.R. § 3.159(c)(2). In January 2015, correspondence from the RMC indicated that his treatment records were not present. The Veteran was informed in a May 2015 letter that VA was unable to locate his service treatment records. VA informed the Veteran that all efforts to obtain the needed information have been exhausted and that further attempts to obtain the records would be futile. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VA’s duty to assist with records has been met. The Veteran has not made any other arguments concerning the Veterans Claims Assistance Act of 2000 (VCAA). 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 duty to assist argument). Service connection for a right arm condition, to include arthritis. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis constitutes a “chronic” disease listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has a right arm condition due to his active service. Initially, as noted above, the Veteran’s service treatment records could not be obtained. See the VA letter dated May 2015. The 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). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). In this matter, while the Veteran has degenerative arthritis of the right wrist, which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Private treatment records do not document evidence of an arthritis condition until 2009, 28 years after his separation from service and 27 years outside of the applicable presumptive period. However, private treatment records indicate status post open reduction and internal fixation surgery for the right wrist in 1990, which is still 9 years after his separation from service and 8 years outside of the applicable presumptive period. Private treatment records further describe three surgeries to the Veteran’s right wrist in 2007. While the Veteran is competent to report having experienced symptoms of right wrist pain since service and consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a right wrist condition. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran’s service treatment records are unavailable. There is no objective medical evidence establishing that the Veteran’s right arm condition was chronic in service or manifest to a compensable degree in service or within a presumptive period and continuity of symptomatology is not established. Therefore, the preponderance of the evidence is against a finding of service connection on a presumptive basis. Service connection for a right arm condition may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right arm condition and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. A March 2019 VA examiner opined that the Veteran’s right wrist condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran’s previous injury had resolved. The examiner further explained that the Veteran’s surgery and current diagnosis would not be related to his 1976 tire injury but to another more recent injury during that time. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As discussed above, the Veteran’s service treatment records are unavailable. In light of this finding, the Board has carefully considered the benefit-of-the-doubt doctrine but finds that the preponderance of the evidence is against the claim. No presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215 at 217-18 (2005) (Court declined to apply “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). There is no objective medical evidence establishing a nexus between the Veteran’s right arm condition and his active service. The Veteran has indicated that he was told at the time of his right arm injury that arthritis would more than likely develop as a result of his injury. He further indicated that he injured his arm while working in motor transport when a tire fell on his right arm while he was doing preventative maintenance. The Veteran reported that he went to sick call, had to wear a brace for approximately six weeks, and was placed on limited duty. The Veteran also submitted a lay statement from his wife describing his 1976 injury. While the Veteran and his wife believes his right arm condition is related to an in-service injury, event, or disease, to include a 1976 right arm injury, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the March 2019 VA examiner’s opinion. Therefore, the preponderance of the evidence is against a finding of a nexus and service connection on a direct basis is not warranted. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that the Veteran’s right arm condition is causally related to his service, manifested within an applicable presumptive period, or was chronic in service. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. McLendon, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.