Citation Nr: 20028098 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 18-37 425 DATE: April 22, 2020 ORDER Entitlement to service connection for residuals of a right arm fracture is denied. Entitlement to service connection for residuals of a left wrist sprain is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran had a current diagnosis of any residuals of an arm fracture at any time during the pendency of the appeal. 2. The preponderance of the evidence is against finding that the Veteran had a current diagnosis of any residuals of a left wrist sprain at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right arm fracture residuals have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for entitlement to service connection for residuals of a left wrist sprain have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to September 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Service Connection 1. Entitlement to service connection for residuals of a right arm fracture 2. Entitlement to service connection for residuals of a left wrist sprain The Veteran contends that he has right arm fracture residuals and left wrist sprain residuals related to his period of active service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Based on a review of the record, the Board finds that the preponderance of the evidence is against awarding service connection for right arm and left wrist disabilities. The threshold question that must be addressed is whether the Veteran actually has the disability for which service connection is sought. In the absence of proof of a present disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was afforded a VA hand and finger examination in January 2015. No wrist or arm diagnosis or pathology was noted. The examiner noted no functional limitation of the fingers or thumbs. The Veteran reported left hand pain, but no functional impact was noted for any hand or wrist condition. VA treatment records similarly do not document right arm or left wrist treatment or diagnosis. VA medical records note that the Veteran has diabetic peripheral neuropathy in his feet and fingertips. See March 2017 VA treatment note. However, private orthopedic records the Veteran submitted, dated in March 2018, show that the Veteran is neurologically and vascularly intact in the upper extremities. Simply, there is no arm or wrist treatment or diagnosis of record. The Board has considered the Veteran’s assertion that a right arm and left wrist disability exist. However, the Veteran has not submitted evidence of said disabilities. The Veteran testified before the undersigned in a December 2019 hearing that he injured his wrist in service and has experienced pain ever since. He conceded that he did not seek treatment for his wrist injury. Similarly, he testified to slipping and fracturing his right arm in service, but stated that he is not receiving medical treatment for this condition. The Veteran testified he received treatment at an orthopedic institute for neuropathy, which he stated was attributed to his wrist. However, the diagnosis of a musculoskeletal or neurological disability is a complex medical question that requires medical expertise that the Veteran is not shown to possess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his comments are afforded limited probative value and are outweighed by the competent medical evidence of record. The Board has also considered the recent holding in Saunders v. Wilkie, which held that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability, and should not be discounted as a bar to benefits based on a finding of no current diagnosis. In that connection, the Board notes that the medical evidence of record shows that the Veteran experiences some pain. However, the record contains no evidence of functional impact of any hand, wrist or arm condition. Consequently, the Board finds that the preponderance of the evidence is against a finding that the Veteran now has (or at any time during the appeal period had) a right arm or left wrist disability manifesting in functional impairment. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Absent evidence of a disability, there is no valid claim of service connection, and the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.159(c)(4) provides that an examination or opinion is necessary if the evidence of record: 1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; 2) establishes that the Veteran suffered an event, injury, or disease in service; and 3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but 4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The Court noted that the third prong of 38 C.F.R. § 3.159(c)(4) is a “low threshold” standard. The first McLendon element, that of a current disability, is met. In this regard, the Board notes that the Veteran has a current diagnosis of PTSD. See August 2018 VA treatment records. The second McLendon element is also met. Here, during his December 2019 hearing the Veteran described being on a ship which was buzzed by Russian bombers on a regular basis. He further described an incident that he witnessed where one bomber crashed into the ocean after buzzing the ship, killing six people and requiring rescue and recovery operations. The Board finds the Veteran’s testimony, supported by newspaper articles documenting the event, to be credible, and indicative of a valid in-service stressor. Finally, the third and fourth elements are met. The Veteran’s testimony of chronic symptoms since service is credible. Based on the above, the Board finds there is sufficient evidence to warrant a remand under McLendon for the issue of entitlement to service connection for a psychological disorder, to include PTSD. The matters are REMANDED for the following action: 1. Obtain and associate with the record any outstanding VA and private treatment records pertinent to psychiatric treatment. 2. The Veteran must then be scheduled for an examination to determine whether it at least as likely as not (50 percent or greater probability) that he has any psychiatric disorder, to include PTSD, which began in service, within one year of service separation, or was otherwise caused by his military service. The VA examiner is asked to address the following questions: a) The VA examiner should confirm whether any of the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran’s symptoms are related to the claimed stressor(s). b) If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran’s claimed stressor(s). c) If the examiner determines that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not that any diagnosed psychiatric disorder began during or was otherwise caused by the Veteran’s military service. The examiner must consider and discuss all pertinent evidence of record, to include the Veteran’s service treatment records and his credible testimony that his ship was buzzed by a Russian bomber, which then crashed into the ocean, killing six people, requiring the ship to engage in rescue and recovery operations. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data or medical literature, as appropriate. Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.C., 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.