Citation Nr: 20031386 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 10-45 432 DATE: May 5, 2020 ORDER Service connection for a right wrist disorder is denied. Service connection for a right ankle disorder is denied. REMANDED The issue of service connection for an acquired psychiatric disorder, to include depression and anxiety is remanded. FINDINGS OF FACT 1. The Veteran’s right wrist disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. 2. The Veteran’s right ankle disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right wrist disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for a right ankle disorder 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 had active service in the United States Army from October 1980 through October 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to appear at a videoconference before a Veterans Law Judge in March 2013; however, he did not appear for the hearing and did not notify VA that he wished to reschedule the hearing. The Board thus finds that it may properly proceed with its adjudication of the case. The Board remanded the issues on appeal for additional development in April 2014. The RO was requested to schedule the Veteran VA examinations to determine the nature and etiology of his right wrist and ankle disorders, which were conducted in June 2019. There has been substantial compliance with the remand directives and the matters again are before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The remaining issue is discussed in the reasons for remand section. Service connection for right wrist and ankle disorders. 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). 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 his right wrist and ankle disorders are due to his active service, to include a May 1983 in-service fall. While the Veteran has current diagnoses of right ankle sprain and right wrist strain, the preponderance of the evidence is against finding that the Veteran’s right wrist and ankle disorders began during service or are otherwise related to an in-service injury, event, or disease. Service treatment records contain complaints of right hand and leg pain and diagnoses of muscular pain to the right leg in November 1981; tendonitis to the right leg in April 1983; and shin splints and achilles tendon to the right leg and soft tissue injury to right hand in May 1983. However, they were silent regarding any complaints of right ankle and wrist disorders. The Veteran indicated on his report of medical examination at separation normal upper and lower extremities clinical evaluations. See August 1983 Report of Medical Examination. The Veteran further indicated he did not have, nor did he ever have swollen or painful joints. Id. VA and private treatment records show the Veteran was not diagnosed with right ankle sprain until November 2008, 25 years after his separation from service, and with right wrist strain until June 2019, 36 years after his separation from service. An August 1993 VA radiology report revealed no evidence of a right wrist fracture or other bony abnormality. These medical records are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). A June 2019 VA examiner opined that the Veteran’s right wrist disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there were no service records indicating a right wrist disorder or symptoms related to the right wrist. The examiner further explained that there was a May 1983 note concerning pain in the right leg and hand after falling; however, the pain was stated to be in the hand and not the wrist. The examiner explained that the August 1983 separation examination was negative for a wrist or hand disorder. The examiner further explained that there were no records after the Veteran’s service concerning a right wrist disorder except a 1998 note stating, “pain in right wrist past 3 years” and later in the note stating, “5 years ago, suffered a fall and injured right wrist.” The examiner explained that there were records concerning right carpal tunnel, for which the Veteran did have surgery, but not a specific wrist disorder. The examiner further explained that there were no records after 1988 concerning a wrist disorder. Regarding the Veteran’s right ankle, the June 2019 examiner opined that the Veteran’s right ankle disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran was diagnosed with recurrent right ankle pain in 2011. The examiner further explained that the Veteran was noted in 2006 VA records to have right ankle pain. The examiner explained that a May 1983 service treatment record indicated a fall with right leg swelling and a diagnosis of shin splints to the right leg; however, the examiner noted that the diagnosis did not seem consistent with an injury. The examiner further explained that there was no mention of an ankle injury except on May 24, 1983 stating, “achilles tender to left leg.” The examiner explained that by the time of the August 1983 discharge, there was no indication of a leg or ankle disorder. The examiner further explained that there were no further records of an ankle disorder until the 2000s. The examiner’s opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his right wrist and ankle disorders are related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion regarding the issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the June 2019 VA examiner’s opinion. Accordingly, the Veteran’s claims of service connection for right wrist and ankle disorders are denied. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND The issue of service connection for an acquired psychiatric disorder, to include depression and anxiety is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: A November 2019 VA examiner opined that the Veteran’s major depressive and unspecified anxiety disorders were less likely than not proximately due to or the result of the Veteran’s service-connected sternum fracture. The examiner indicated that ¬he was unable to state with certainty that the Veteran’s residuals of an in-service sternum fracture (for which service connection is in effect) was the direct cause of the anxiety. To have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, remand is necessary. 2. Return the file to the examiner who conducted the November 2019 VA examination. If that examiner is no longer available, conduct the following development with a similarly qualified examiner. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinion: Identify whether the Veteran’s acquired psychiatric disorder, to include depression and anxiety, is proximately due to or the result of his service-connected residuals of sternum fracture. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner’s attention is drawn to the following: • August 2006 Physician Note indicating a negative depression screen. See “Medical Treatment Record – Government Facility” received January 29, 2009, page 10 of 13. • August 2006 Social Work Consult indicating three anxiety attacks in the past year. See “Medical Treatment Record – Government Facility” received January 29, 2009, page 3 of 13. • October 2006 BHN Intake Assessment indicating a diagnosis of major depression and generalized anxiety disorder. The Veteran reported depression since childhood and contributed some of his depression to his mother’s illness and his daughter being homeless with two children. See “Medical Treatment Record – Non-Government Facility” received February 9, 2009, pages 41 through 45 of 53. • November 2008 General Medicine Note Office indicating the Veteran’s reports of battling with depression and anxiety for the prior nine years. See “Medical Treatment Record – Non-Government Facility” received February 20, 2009, page 6 of 16. • September 2010 Appeal to Board of Veterans’ Appeals (VA Form 9) indicating the Veteran’s belief that his depression and anxiety stem from his other injuries. See “Form 9,” received February 27, 2010. • November 2019 Medical Opinion Disability Benefits Questionnaire (DBQ) opining that the Veteran’s major depressive and unspecified anxiety disorders were less likely than not proximately due to or the result of the Veteran’s service-connected sternum fracture. The examiner indicated that ¬he was unable to state with certainty that the sternum fracture was the direct cause of the anxiety. See “C&P Exam,” received December 9, 2019. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. Vito A. Clementi 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.