Citation Nr: 20006162 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 13-04 176 DATE: January 24, 2020 ORDER Service connection for a right wrist disability is denied. Service connection for a left wrist disability is denied. REMANDED The claim for a rating in excess of 10 percent for a left elbow disability, to include a compensable rating prior to November 11, 2016, is remanded. FINDINGS OF FACT The evidence is insufficient to show that the Veteran’s right and left wrist disabilities occurred during or were otherwise caused by his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right wrist disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a left wrist disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Navy from September 1977 to September 1980,with periods of active duty for training (ACDUTRA) from March 14, 1981 to March 27, 1981, and from October 18, 1982 to October 29, 1982. His miliary specially (MOS) was electrical/mechanical equipment repairman. Service Connection - Wrists The Veteran is seeking service connection for his left and right wrists. He stated in July 2012 that he believed his wrist, elbow, and back conditions were related to his service in Navy, specifically, the constant wear and tear due to climbing up and down ladders and the use of hand tools on a regular basis. This matter had been previously before the Board. An April 2015 Board decision denied service connection for left and right wrists, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In June 2016, the Court remanded the issues to the Board to consider the Veteran’s July 2012 lay statement and decide whether a VA examination was warranted. The Board remanded the issue in January 2017 and again in May 2018 for further developments (to include conducting VA examinations). The Board is satisfied that there has been at least substantial compliance with the Board’s remand directives. 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. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 active service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Active service includes (1) active duty, (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury (but not a disease) incurred or aggravated in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). There are several small exceptions carved out for specific medical conditions such as heart attacks and strokes that occur during a period of ACDUTRA or enroute to or from ACDUTRA. There is a clear distinction between individuals who serve on active duty and those who only serve on active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). An individual seeking VA disability compensation based on ACDUTRA must establish he or she was disabled or died from an injury or a disease incurred or aggravated in the line of duty. 38 U.S.C. § 101 (24). Here, the Veteran had ACDUTRA from October18, 1982 to October 29, 1982. Service treatment records (STRs) show that he sought treatment on October 18, 1982 for left wrist pain due to an injury when he fell down three days prior to October 18, 1982. The impression at that time was a sprained left wrist. Neither STRS or other records show any follow-up treatment for the October 1982 wrist injury. Since the Veteran’s left wrist injury occurred prior to ACDUTRA and there is no evidence showing the worsening of the injury during ACDUTRA, the October 1982 injury will not be considered as an injury occurred or was aggravated (getting worse) during active service. STRs do not contain any complains of or treatment for any wrist problems (other than the treatment in October 1982). The separation physical show that the Veteran’s upper extremities were found to be in normal condition at the time of the separation. The private treatment records show that the Veteran had a slip and fall accident in February 1988 which caused him immediate pain in his knees. In October 1988, he complained about pain and stiffness in bilateral knees, left hip, and low back, and reported that he did not have significant musculoskeletal problems until the February 1988 fall. Rheumatologic evaluation in October and November 1988 by Dr. H. referred to a July1988 bone scan showing increased uptake in the spine and multiple joints (including shoulders, knees, elbows, and wrists). Dr. H concluded that the Veteran had chronic musculoskeletal pain syndrome currently most bothersome in the low back, hips, and knees. Dr. H. opined that although the July 1988 bone scan suggested a diffuse arthritic process and some symptoms did suggest the possibility of a low-grade inflammatory arthritis, the data base was too incomplete to allow for a definitive rheumatologic diagnosis. Dr. H. added that the then physical findings were relative benign to allow any confirmation of evidence of inflammatory arthritis and the bone scan may be unreliable. Dr. H. suggested that in light of his propensity for musculoskeletal pain, the Veteran should avoid vocational activities requiring physical exertion or sustained standing or walking. The July 1988 bone scan is the earliest evidence of the record showing a possible wrist problem after the left wrist injury occurred in October 1982. The VA treatment records show that in October 2002, the Veteran was treated for left hand median nerve compression with a wrist splint. This is the earliest VA record showing a wrist problem. In February 2003, Tinel’s sign was positive in both wrists, and the Veteran was diagnosed with bilateral carpal tunnel syndrome. However, a January 2004 EMG showed normal wrists. In September 2004, the Veteran reported continued wrist pain, especially in the left wrist, and that he experienced numbness of last three fingers when he turned his wrist. An EKG and x-rays in April 2014 of the wrists both show normal results. The Veteran was afforded a VA examination on wrist conditions in January 2018, at which the examiner diagnosed him with early Degenerative Joint Disease (DJD) in the right wrist based on x-rays performed during the examination. X-rays of left wrist show no significant abnormalities. A VA examination on peripheral nerves conditions was also conducted in January 2018, at which the examiner noted the diagnoses of bilateral carpal tunnel syndrome in February 2003 and the median nerve compression in the left wrist in October 2002. The examiner opined that the Veteran’s bilateral wrist conditions were less likely (less than 50 percent probability) occurred during or caused by his active service. The examiner explained that a formal diagnosis of carpal tunnel syndrome was not made until February 2003 (approximately 23 years after separation from service) and a diagnosis of median nerve compression of left wrist was not made until October 2002 (approximately 22 years after separation from service), it would be mere speculation that the Veteran’s bilateral carpal tunnel syndrome and DJD in right wrist were related to his service with onset of both conditions diagnosed over 20 years after separation from service. The examiner further opined that these conditions were likely due to overuse due to driving and electrical and maintenance work he performed after service because STRs were silent to any wrist condition. Of note, the Veteran reported his post service employment history to the VA examiner during a shoulder examination in February 2013 as follows: • 1980 to 1984: as electrician for multiple contactors, • 1986 to 1989: Oaks apartments, as a maintenance staff, • 1992 to 1997: Sigma house treatment center, as a driver and detoxication technician, • 1997 to 1999: Dealer’s Automobile Auction, as a driver, and • 2006 to 2009: Sigma House Treatment Center: as a driver and detoxication Technician. The Veteran was afforded a VA examination on wrist conditions in June 2019 at which the examiner diagnosed him with bilateral wrist sprain and DJD in the right wrist. A VA examination on peripheral nerves conditions was also conducted in June 2019, at which the examiner noted the diagnoses of bilateral carpal tunnel syndrome in February 2003 and the median nerve compression in the left wrist in October 2002. The examiner opined that the Veteran’s bilateral wrist conditions were less likely (less than 50 percent probability) than not to have either occurred during or been caused by his active service. The examiner explained that a formal diagnosis of carpal tunnel syndrome was not made until February 2003 (approximately 23 years after separation from service) and a diagnosis of median nerve compression of left wrist was not made until October 2002 (approximately 22 years after separation from service), it would be mere speculation that the Veteran’s bilateral carpal tunnel syndrome and DJD in right wrist were related to his service with onset of both conditions diagnosed over 20 years after separation from service. The examiner further opined that these conditions were likely due to overuse due to driving and electrical and maintenance work he performed after service because STRs were silent to any wrist condition, and his three years of service including going up and down ladders on a ship and use of hand tools was unlikely to have been the cause of his wrist conditions. The examiner further added that the self-reported in-service bilateral fifth digit paresthesias were consistent with ulnar nerve irritation which was not associated with median nerve root compression as seen in carpal tunnel syndrome. The examiner explained that median nerve compression was reflective of thumb, index and middle finger paresthesias. The Veteran’s representative provided a medical article in November 2019 entitled “Tinel’s Sign”, which explained what Tinel’s Sign was, how it was tested, and what positive and negative tests meant. However, this article in no way addressed the etiology of the Veteran’s wrist problems, so it is ultimately of little probative value to this adjudication. The Board finds that the evidence of record is insufficient to support the finding that the Veteran’s wrist conditions either occurred during or were otherwise caused by his active service. STRs do not show any records of complains of or treatment for any wrist condition during active service. His injury to the left wrist in October 1982 occurred after he separated from active duty service and was not occurred or aggravated during an ACDUTRA period. Although a bone scan in July 1988 showed increased uptake in the spine and multiple joints (including shoulders, knees, elbows and writs) suggestive of diffuse arthritic process, the rheumatologist opined that bone scan may not be reliable and the data was too incomplete to allow for a definitive rheumatologic diagnosis. Additionally, the Veteran did not report any wrist problem at his rheumatologic evaluation in October 1988 while reporting pains in hips, knees and back, suggesting a lack of wrist symptoms in October 1998. While the Veteran stated in his July 2012 lay statements that he experienced constant wear and tear due to climbing up and down ladders and the use of hand tools on a regular basis during his service in the Navy, he reported in October 1988 that he did not have any significant musculoskeletal problems until the slip-and-fall accident in February 1988 and he also reported a longer history of post service employment involving use of wrists as a driver, electrician or maintenance staff Further, the examiner in January 2018 and June 2019 twice opined that the Veteran’s wrists conditions were less likely (less than 50 percent probability) than not to have either occurred during or been caused by his active service based on lack of evidence of wrist problem in the STRs, the remote onset of bilateral carpal tunnel syndrome and DJD in right wrist (both over 20 years after separation from service), as well as other wear and tear during his post service employment. The examiner’s opinions were rendered after thorough review of the medical records, based on well-reasoned rationales, and was consistent with other evidence of the records, thus they are found to be the most probative medical evidence and are afforded the greatest weight. Accordingly, service connection for a left wrist disability and a right wrist disability is denied. REASONS FOR REMAND Increase Rating - Left Elbow A Board decision in April 2015 granted the service connection for Veteran’s left elbow disability. An April 2015 rating decision assigned a non-compensable rating for the left elbow effective December 20, 2010 (the date that VA received the Veteran’s formal service connection claim), to which the Veteran timely filed an appeal to the Board. In January 2017, the Board remanded the matter to the agency of original jurisdiction (AOJ) to provide a SOC. A December 2017 SOC increased the rating for left elbow to 10 percent effective November 11, 2016 and continued the non-compensable rating prior to that date. A May 2018 Board decision remanded the issue for a new VA examination. An April 2019 rating decision continued the 10 percent rating in the previous AOJ decision without conducting a new VA examination as the AOJ found that the Veteran missed the scheduled VA examination without a good cause. A Board decision later in April 2019 remanded the issue for a new VA examination as the Board found that the Veteran had cancelled the VA examination prior to its scheduled date with a good cause and requested a re-scheduling of the examination. Subsequently, VA examinations on elbow condition were conducted on June 24, 2019, November 8, 2019 and November 11, 2019. As of the date of this decision, the AOJ has yet to readjudicate the issue based on the new VA examinations. Of note, an August 2019 rating decision found a clear and unmistakable error (CUE) regarding the previous AOJ decision on the effective date of the service connection for the left elbow, and granted an earlier effective date of November 9, 2010 (the date that the VA received the Veteran’s informal service connection claim). The Board notes that, in September 2019, the Veteran (through his representative) submitted a Supplemental Claim Review Request (Form 20-0995) under the VA’s new regulations implementing the Veterans Appeals Improvement and Modernization Act, effective February 19, 2019 (AMA), requesting an AOJ review of the April 2019 rating decision on the issues of increased ratings for the left elbow and the right ankle. However, as the April 2019 rating decision regarding the issue of an increased rating for the left elbow has been determined by the Board’s decision in April 2019 to be incorrect, and the AOJ is yet to issue a new decision based on the examinations conducted after April 2019. Accordingly, the Veteran’s Supplemental Claim Review request made in September 2019 is premature, and Veteran may submit a new decision review request after the new AOJ decision is made. The matters are REMANDED for the following action: Re-adjudicate the claim for a compensable rating for a left elbow disability from November 9, 2010 and a rating in excess of 10 percent for a left elbow disability from November 11, 2016. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.