Citation Nr: 21001496 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 19-31 429 DATE: January 8, 2021 ORDER Service connection for a right ear condition, to include residuals of otitis media and a ruptured ear drum, is denied. Service connection for a disability of the right wrist, claimed as tendonitis and diagnosed as traumatic arthropathy, is denied. Service connection for a left wrist condition, claimed as tendonitis, is denied. REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a left ankle disability, to include Achilles tendonitis, is remanded. Entitlement to an initial rating higher than 0 percent for residuals of an injury to the coccyx is remanded. FINDINGS OF FACT 1. The Veteran does not have a current disability of the right ear. 2. The Veteran has been diagnosed with traumatic arthropathy of the right wrist; he has not been diagnosed with a left wrist condition during the pendency of this claim, but wears a brace for left wrist symptoms. 3. A right or left wrist condition or symptoms did not manifest in active service. 4. Traumatic arthropathy of the right wrist, or any other wrist condition, is not shown to be related to disease or injury incurred or aggravated in active service. 5. A left wrist condition, if any, is not shown to be related to disease or injury incurred or aggravated in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ear condition, to include residuals of otitis media and a ruptured ear drum, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right wrist condition, claimed as tendonitis and diagnosed as traumatic arthropathy, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left wrist condition, claimed as tendonitis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2009 to June 2009, and from September 2012 to September 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2020. A transcript of the hearing is of record. Service Connection Service connection generally will be awarded when a veteran has 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(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the “nexus” element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Service connection for a right ear condition. The Veteran claims service connection for a right ear injury or condition. See January 2016 VA Form 21-526EZ. For the following reasons, the Board finds that the criteria for service connection are not satisfied. The service treatment records show that in March 2013, the Veteran had otitis media of the right ear with a ruptured ear drum, which was found to be incurred in line of duty. The service treatment records do not otherwise show right ear complaints or findings. The Veteran separated from service in September 2013. He began receiving treatment at VA that same month. A general examination at that time included examination of his ears, which showed that the tympanic membranes were non-erythematous. No abnormalities were noted. The VA treatment records show that there were no complaints with respect to the Veteran’s right ear until February 2017, when he reported a fluid sensation in his ears that had been present for about a week or two after a cold. The assessment was eustachian tube congestion. He was seen again in March 2017 with a complaint of loss of hearing in the right ear since the day before. He was still experiencing ringing and popping sounds, with pain. He was diagnosed with eustachian tube “dysfunction,” but an infection could not be ruled out. He was prescribed medication, including antibiotics. He was seen for follow up treatment of ‘bilateral otalgia” about a week later. The treating clinician noted that it had been treated with antibiotics and decongestants, and that the Veteran’s symptoms had resolved. The Veteran was diagnosed with eustachian tube dysfunction/otitis which had “resolved with treatment.” It was noted that no further evaluation or treatment was required. A January 2018 VA treatment record reflects that on a general physical examination, which included examination of the Veteran’s ears, his right ear canal and right tympanic membrane were normal. The records do not show further complaints, treatment, or abnormal findings with respect to the Veteran’s right ear. The Veteran has not stated that he has continued to experience right ear symptoms or has been since been diagnosed with a right ear condition. While the Veteran’s right ear eustachian tube congestion or dysfunction and a possible infection from February 2017 to March 2017 occurred during the pendency of this claim, that episode in itself does not establish a current disability. Rather, to establish a current disability, the evidence must show a chronic right ear condition. See 38 C.F.R. § 4.87 (schedule of ratings for diseases of the ear). In this regard, VA’s Schedule for Rating Disabilities recognizes chronic otitis externa (Diagnostic Code (DC) 6210), chronic nonsuppurative otitis medial with effusion (serous otitis media) (DC 6201) and chronic suppurative otitis media, mastoiditis, or cholesteatoma (DC 6200) as disabilities. Id. Thus, as indicated by consistent use of the word “chronic” in the rating schedule, a single episode of right ear congestion or infection that resolves with treatment does not constitute a disability for VA compensation purposes absent evidence of a chronic or recurring condition. The rating schedule also recognizes perforation of the tympanic membrane as a disability. Id., DC 6211. The Veteran had a ruptured ear drum during active service, but his right tympanic membrane has been normal during the pendency of this claim. Accordingly, a current disability of the right ear is not established. Consequently, the criteria for service connection are not satisfied. See Holton, 557 F.3d at 1366; see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (upholding VA’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   Service connection for bilateral wrist conditions (claimed as tendonitis). The Veteran claims service connection for bilateral wrist conditions, which he characterizes as tendonitis. See January 2016 VA Form 21-526EZ. For the following reasons, the Board finds that the criteria for service connection are not satisfied. At the October 2020 Board hearing, the Veteran testified that he had bilateral wrist conditions prior to active service. He stated that he had done a lot of computer work since he was eleven years old, and that he wore wrist braces when he slept. He stated that if he did not wear the braces, he would pinch his wrist when he slept, cutting the circulation off. He stated that during his deployment to Afghanistan he did not “really have access” to wrist braces. He added that his doctor had told him that if he skipped even one day of wearing braces, he would “cancel out a month’s worth of doing it correctly.” His representative observed that the Veteran “obviously couldn’t wear those braces on duty in the prison.” When asked whether he believed his wrist tendonitis worsened because of his duties as a prison guard while serving in Afghanistan, the Veteran responded, “That’s very likely. I think it did.” When asked why, he responded that it was due to lack of wearing braces while sleeping. He also used handcuff keys often, which were “tiny and . . . annoying.” He stated, “That’s the only thing I can think of that I did over there that would contribute to that.” The Veteran’s service treatment records include an April 2012 medical questionnaire—filled out several months before his active service period— which notes with respect to his “yes” responses to certain questions that he had seen a doctor for “carpal tunnel/arthritis” of the right wrist, which had improved. He was also taking an ani-inflammatory, but the record does not specify whether that was for the wrist condition. The service treatment records do not reflect treatment or complaints with respect to the Veteran’s wrists during his period of active service. A January 2014 post-deployment questionnaire reflects that he endorsed feeling “bothered a little” with regard to “pain in the arms, legs, or joints (knees, hips, etc.).” However, the form does not specify the area that bothered him, and the record shows that he also injured his coccyx while deployed, and experienced ankle pain. Similarly, he endorsed being “bothered a lot” by “numbness or tingling in the hands or feet,” but the form does not specify whether he was referring to the upper or lower extremities. Notably, however, at the October 2020 Board hearing, the Veteran stated that he experienced left ankle symptoms which he described as “on fire or tingly.” He stated in this regard that he did a lot of walking at the prison. Thus, there is every indication that the numbness or tinging the Veteran endorsed in the January 2014 post-deployment form referred to his ankle. The Veteran has not stated that he experienced wrist problems during active service. He began receiving care at VA in September 2013, shortly after separation from service, and did not seek treatment for his wrists or mention wrist symptoms until September 2014, about a year later. At that time, he was seen by prosthetics/orthotics for bilateral wrist braces, which were issued for “carpal tunnel syndrome symptoms.” He stated that these symptoms could be due to the way he holds his hands while driving during patrol, and that he used a computer “quite a bit.” An April 2015 VA treatment record reflects that the Veteran reported elbow pain radiating to his wrists that had been present for about one year. He denied a history of any injury. In July 2015, the Veteran underwent electrodiagnostic testing of his bilateral wrists to rule out carpal tunnel syndrome and cubital tunnel syndrome. The nerve conduction study and electromyography (EMG) study were normal, and the conclusion was that there was no carpal tunnel or cubital tunnel syndrome. An October 2015 VA treatment record reflects that the Veteran complained of chronic wrist pain secondary to sleeping with his wrist flexed. In March 2016, the Veteran reported right wrist pain that had been present for three weeks. He denied any injury, and examination was negative for evidence of trauma. The treating physician noted that the July 2015 electrodiagnostic studies were negative for carpal tunnel syndrome and cubital tunnel syndrome. The physician diagnosed traumatic arthropathy of the right wrist. The VA treatment records do not show complaints or findings with respect to the left wrist during the pendency of this claim, which was filed in January 2016. Based on the above evidence, the Board finds that the Veteran did not incur or aggravate a disease or injury in service related to a current right or left wrist condition. He states he had been told to wear wrist braces during sleep, but does not explain why he did not have “access” to wrist braces while deployed to Afghanistan, or why he could not have brought the ones he had already been issued, if such was the case. Moreover, the April 2012 questionnaire makes no mention of wrist braces. Indeed, the earliest evidence that he was issued wrist braces is the September 2014 VA treatment record, which is dated about a year after the Veteran’s separation. It seems implausible the Veteran would not have obtained wrist braces earlier had he generally been wearing them since prior this period of active service. While his representative observed at the hearing that the Veteran could not wear the wrist braces while performing his duties as a prison guard, the Veteran stated that he has only worn them while sleeping. Thus, that observation does not have a bearing on the plausibility of whether the Veteran could have brought the wrist braces he reportedly had been issued prior to service and continued wearing them during his deployment when he slept at night. Significantly, at the time he was issued the wrist braces, in September 2014, he stated that his symptoms could be due to the way he holds his hands while driving during patrol, and that he used a computer “quite a bit.” He made no mention of his military service. Also significant is the April 2015 VA treatment record reflecting that the Veteran reported a history of experiencing wrist pain for about one year, which is more or less in keeping with the fact that he did not seek to obtain wrist braces or treatment until September 2014. Even if the wrist symptoms had manifested as early as April 2014, one year prior to that record, that would still be more than half a year after his separation from service, and with examinations showing no objective pathology that might suggest a chronic condition. In the October 2015 record, the Veteran again did not attribute his wrist symptoms to service, but instead to sleeping with his wrist flexed. In short, the probative evidence shows that the Veteran did not have wrist problems during service or for at least several months after his separation from service, with the earliest treatment occurring about a year after separation. At that time, he believed his wrist problems may be due to his computer use or the way he held his hands while on patrol, and later stated it may be due to the way he slept. With regard to the Veteran’s statements that he believed not wearing wrist braces during active service, and using handcuff keys, may have aggravated his wrist condition, the Board finds such testimony does not constitute competent evidence that he aggravated a preexisting wrist condition in active service. In this regard, lay testimony may be competent evidence as to matters capable of lay observation or within a person’s first-hand experience, both with respect to the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical complexity. Id; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). The Board must determine based on the specific facts of the case whether lay testimony is competent on the matter at issue, or whether medical evidence is required. See Davidson, 581 F.3d at 1316 (holding that it was error to reject categorically lay statements on the issue of medical nexus, or to make a categorical finding that a medical opinion was required). Here, assuming the Veteran had been issued wrist braces to wear during sleep prior to his period of active service, the issue of whether not wearing the braces, or using small handcuff keys, aggravated a pre-existing wrist condition, is a determination that is too complex to be made based on lay observation alone, since a cause-and-effect relationship cannot be perceived solely through the senses. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has not stated that he experienced wrist symptoms during service, and it seems he did not wear wrist braces until September 2014, when they were issued by VA. Thus, even if not wearing wrist braces may have contributed to the Veteran’s wrist condition, such aggravation may have occurred during that post-year period. Accordingly, the Veteran’s statements are not competent evidence on this issue. See Jandreau, 492 F. 3d at 1376-77. When the Veteran first received treatment for his wrist symptoms at VA, in September 2014, he attributed them to the way he used his hands when he drove, or use of a computer, which indicates that his wrist problems had not been longstanding or present during service. That inference is borne out by the fact that in the April 2015 record, the Veteran stated his wrist problems had been present for about a year. Even if only approximate, that statement strongly indicates his symptoms had not occurred during or shortly after his period of active service, from which he separated in September 2013. In sum, the Board finds that a wrist condition or symptoms did not manifest in active service, and that there is no competent or probative evidence indicating that the Veteran’s current wrist conditions may be related to an in-service disease, injury, or event, including not using wrist braces or working with small handcuff keys. A VA examination or opinion has not been obtained with respect to these claims. VA’s duty to provide an examination or opinion is required when the following elements are satisfied: (1) evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c)(4). In this case, while competent evidence is not required to satisfy the third McLendon element, there must still be some credible basis for an apparent possible link between the Veteran’s right or left wrist conditions and a disease, injury, or event in service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that while competent evidence is not required, a claimant’s “conclusory generalized statement that his service illness caused his present medical problems” was not sufficient to trigger the duty to provide an examination or opinion). The Veteran’s speculation that not wearing wrist braces during service when he slept at night is related to his current wrist condition (putting aside the credibility of whether he had been advised to wear wrist braces on a nightly basis at that time), or that the use of small handcuff keys aggravated his wrist condition, does not satisfy the “low threshold” of indicating that a current condition of either wrist may be related to a disease, injury, or event in service. See id.; McLendon, 20 Vet. App. at 83. Underscoring the conclusory nature of the Veteran’s assertions is that no pathology of either wrist has been found on examination, including diagnostic testing, his wrist symptoms did not manifest in service or until at least half a year after separation, he apparently did not wear wrist braces for about a year after his separation from service, and he has described intensive use of his hands working on computers since he was a child which he also states may have caused or aggravated his wrist symptoms, along with sleeping with his wrist flexed. He has not submitted any supporting evidence, such as a statement from a medical professional, for the proposition that not wearing braces when he slept at night during service, or using handcuff keys, may have aggravated a pre-existing wrist condition. Indeed, the phrasing of his testimony highlights the speculative nature of these theories: “That’s very likely. I think it did” (with respect to not wearing wrist braces); “[t]hat’s the only thing I can think of that I did over there that would contribute to that” (with respect to using handcuff keys). For the same reasons, the second McLendon element is not satisfied, since there is no plausible evidence of an in-service disease, injury, or event which could support service incurrence or aggravation. See McLendon, 20 Vet. App. at 83. Accordingly, the Board finds that the Veteran did not incur or aggravate a disease or injury with respect to either wrist during active service, and that a current condition of either wrist is not otherwise shown to be related to his period of service. Consequently, the criteria for service connection are not satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). Because the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disorder, to include PTSD and major depressive disorder, is remanded. The Board finds that a new medical opinion is warranted to address the issue of whether the Veteran has a current psychiatric disorder related to active service. VA treatment records show that he has been diagnosed with depressive disorder. A VA PTSD examination was performed in April 2016. The examiner found that the Veteran’s symptoms did not meet the criteria for PTSD. The examiner noted that the Veteran had symptoms consistent with depression and anxiety, but did not provide an opinion as to whether the Veteran’s current psychiatric disorder is related to service. On remand, such an opinion should be obtained. The Veteran has submitted an August 2019 private psychiatric examination report and medical opinion authored by a licensed mental health counselor (LMHC), in which the counselor concluded that the Veteran’s experiences while serving as a prison guard in Afghanistan led to the development of his major depressive disorder and generalized anxiety disorder. The agency of original jurisdiction (AOJ) has not reviewed that evidence, and will have that opportunity on remand. 2. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran claims service connection for obstructive sleep apnea as secondary to a psychiatric disorder. See October 2020 Hearing Transcript. Accordingly, the Board remands this claim as inextricably intertwined with the claim for a psychiatric disorder. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991). 3. Entitlement to service connection for a left ankle disability, to include Achilles tendonitis, is remanded. The Board finds that a VA examination and opinion are warranted as to the likelihood that the Veteran has a left ankle disability related to his in-service left ankle symptoms. In this regard, the Board finds it credible the Veteran experienced left ankle pain in service with extensive walking as a prison guard, and which he described at the October 2020 Board hearing as a burning pain or tingling. That testimony is in keeping with a January 2014 post-deployment questionnaire, in which the Veteran endorsed feeling “bothered a lot” by “numbness or tingling in the hands or feet” during his deployment. In light of that testimony, the Board assumes the Veteran was referring to his ankle in the post-deployment questionnaire. Moreover, the VA treatment records reflect that when he was seen as a new patient in October 2013, the Veteran reported just coming back from deployment (from which he returned in September 2013), and that he had a history of tendonitis of the ankle. At that time, he reported some tenderness in the ankle, and ankle arthralgia after walking. Finally, a June 2014 periodic health assessment for the U.S. Army National Guard noted that the Veteran was diagnosed with left ankle tendonitis in October 2013 (i.e. per the October 2013 VA treatment record), with significant pain and limitation, which “recurred” while deployed. The ankle was “currently . . . symptomatic intermittently.” That assessment is dated years before the Veteran submitted the present claim, which was in January 2016. It is not clear why the word “recurred” is used, as there is no indication the Veteran had a pre-existing left ankle disability. In any event, that record also constitutes probative evidence supporting service incurrence of a left ankle condition. In short, the probative evidence shows that a left ankle condition manifested in active service during the Veteran’s deployment, and that he continued to have left ankle symptoms following his deployment. More recent VA treatment records dated during the pendency of this claim reflect diagnoses of Achilles tendinopathy of the left ankle, thus supporting a current disability. See August 2016 VA Treatment Record. Accordingly, a VA examination should be performed, when safe to conduct one, and an opinion provided as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current left ankle disability is related to the left ankle symptoms he experienced during and since his period of active service, which have been diagnosed as tendonitis or Achilles tendinopathy. 4. Entitlement to an initial rating higher than 0 percent for residuals of an injury to the coccyx is remanded. At the October 2020 Board hearing, the Veteran indicated that his disability of the coccyx had worsened since the last VA examination, which was performed in April 2016, nearly five years ago. Accordingly, when safe to do so, a new VA examination should be performed to assess the current severity of that disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); 38 C.F.R. § 3.327(a). The matters are REMANDED for the following action: 1. Add to the file the Veteran’s outstanding VA treatment records, if any, dated since October 2019. 2. Obtain a VA medical opinion from a VA psychologist or psychiatrist as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has a current psychiatric disorder, such as depressive disorder and/or anxiety disorder, related to his period of active service, including his duties as a prison guard in Afghanistan. A complete explanation must be provided in support of the conclusion reached. As there is extensive documentation of the Veteran’s psychiatric symptoms in the VA treatment records, and as an examination was previously performed, a new examination need not be conducted, unless deemed necessary by the examiner for purposes of rendering the opinion. If so, an in-person examination should be arranged, or a virtual examination by videoconference, if possible. 3. The August 2019 private examination and opinion authored by Z. Gleason should be considered in readjudicating the service connection claim for a psychiatric disorder. 4. Arrange for a VA examination and medical nexus opinion regarding the Veteran’s left ankle disability, as specified below. The claims file must be made available to the examiner for review. When considered safe to do so, a thorough in-person examination should be performed. However, if arranging for an in-person examination would unduly delay readjudication of this claim owing to conditions associated with the pandemic, the AOJ may consider alternatives, within its discretion, including obtaining an opinion based solely on review of the record, or a telehealth examination, so long as any such alternative would not prejudice the Veteran’s claim. After reviewing the file and examining the Veteran (assuming an examination is conducted), the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current left ankle disability is related to his in-service left ankle symptoms, which were diagnosed as tendinitis shortly after separation. While the service treatment records do not directly document left ankle symptoms or injury during the Veteran’s active service, there is sufficient evidence to conclude that his left ankle tendonitis first manifested in active service on extensive walking during his duties as a prison guard. The Veteran has since experienced intermittent left ankle symptoms for which he received physical therapy in 2016, with a recent diagnosis of Achilles tendonitis. The examiner must provide a complete explanation in support of the conclusion reached. 5. Arrange for an examination to assess the current severity of the Veteran’s coccyx injury residuals, when considered safe to conduct one. If necessary due to conditions associated with the pandemic, a virtual (“telehealth”) examination should be considered, if feasible. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.