Citation Nr: 21001814 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 12-17 010 DATE: January 11, 2021 ORDER Entitlement to service connection for left wrist arthritis is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, left wrist arthritis is at least as likely as not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for left wrist arthritis are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from November 1973 to March 1974. This matter initially came to the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board remanded the appeal for additional development in May 2016, July 2017 and April 2019. It is once again before the Board. The Veteran testified before the undersigned at a Travel Board hearing in February 2016 and a Board virtual tele-hearing in November 2020. Transcripts of both hearings are of record. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), if a chronic disease is noted in service (or in the presumptive period) but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran in this case contends that his current left wrist arthritis is related to service. Although he does not dispute that he suffered a left wrist fracture approximately one year before entering service, the Veteran asserts that his current disability is the result of injury or aggravation from basic training. Service treatment records show that at a November 1973 entrance examination, the appellant reported that as a result of a high school football injury in December 1972, he underwent a bone graft procedure of his left wrist. Although this report prompted a medical evaluation of his left wrist, the orthopedist found that the Veteran was fit for full military duty. The orthopedist noted that although he was not certain that the Veteran would not develop posttraumatic arthritis, the wrist “is quite good now and articular surfaces look as good as can be expected.” He was then accepted into service without any defects noted; normal upper extremities were found upon evaluation. March 1974 service treatment records show that the Veteran complained of left wrist pain which he attributed to basic training. The Veteran reported that he hit the side of his wrist that he previously fractured and that it was sore. X-rays revealed “no change from previous description” but the plan was to allow the Veteran to separate from service. A permanent profile restricted the Veteran from any assignment requiring prolonged handling of heavy material, including weapons. He was not to perform overhead work, pull ups or push-ups. At separation, the Veteran reported left wrist pain and abnormal upper extremities were noted upon examination. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). As noted above, although the Veteran was accepted into service without any defects noted, service treatment records show that he later reported reinjuring his left wrist during basic training. The presumption of soundness therefore attaches. 38 C.F.R. § 3.304(b). To rebut the presumption of soundness, there must be clear and unmistakable evidence that the disorder both preexisted service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). As to the first prong, here, there is clear and unmistakable evidence that the Veteran fractured his left wrist prior to entering service. As discussed above, this fact is well documented in the service treatment records and the Veteran does not dispute that this took place. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). This question was most recently addressed in a February 2020 VA opinion. Although VA etiological opinions were also obtained in May 2011, September 2016 and November 2017, the May 2011 and September 2016 VA examiners did not directly address preexistence and aggravation and the November 2017 VA examiner stated that she could not comment on the question of aggravation without speculating. In February 2020, a VA examiner concluded that the Veteran’s current left wrist arthritis clearly and unmistakably was not aggravated beyond its natural progression by in-service injury. The examiner observed the lack of evidence showing in-service aggravation and stated that although it was reasonable to presume that the Veteran experienced pain when he directly struck his wrist during service, X-rays taken after the in-service injury did not reveal a permanent injury to his wrist. Moreover, given the Veteran’s very brief military history, the examiner reasoned she “would not expect him to have any significant overuse injury to the wrist to progress his disease beyond the usual course [and that t]his progression is more likely than not due to the natural history of post-traumatic arthritis, as well as his subsequent military employment and leisure activities.” The Board finds the above opinion insufficient to establish, by clear and unmistakable evidence, that there was no aggravation during service. The examiner’s statements that she “would not expect” an overuse injury and that it is “more likely than not” due to the natural history of the disease do not express the level of confidence needed to show that this evidence is undebatable and cannot be misinterpreted or misunderstood. Moreover, the examiner relies on the premise that a relatively brief military experience would not typically result in an overuse injury; however, while this may hold in many cases, here, evidence shows that the Veteran did in fact injure his left wrist during basic training and that it was severe enough for him to be restricted from overhead work, pull ups and push-ups. In sum, there is not clear and unmistakable evidence that the disability was not aggravated by military service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. The February 2020 VA examination reveals a current diagnosis of left wrist arthritis and, in support of a nexus to service, the Veteran has submitted a November 2020 private medical opinion. He has also testified that he has experienced pain and weakness in the left wrist ever since service. See November 2020 hearing testimony. In the November 2020 opinion, the Veteran’s treating orthopedist stated, in relevant part, that the Veteran “injured his left wrist while in the Army, he fell and fractured the wrist. He pressed on in the Army but has had pain with any heavy lifting or overhead lifting since that time.” The orthopedist further noted that the Veteran’s left wrist was “as bad an arthritic wrist as I have ever seen on X-ray. The distal radius and almost all of the carpal bones are either fused or broken.” Based on the above opinion and the Veteran’s competent and credible reports of experiencing pain and weakness since service, the Board finds that the evidence is approximately in equipoise as to whether the Veteran’s current left wrist arthritis is related to service. Arthritis, a chronic disease, may be shown to be related to service where continuity of symptomatology is shown. 38 C.F.R. § 3.303(b). In this regard, although the private opinion suggests that the orthopedist was under the impression that the left wrist fracture occurred during service – which is not correct – his opinion that radiographic imaging of the left wrist showed very severe arthritis lends support to the Veteran’s assertions that he has experienced pain and weakness ever since the left wrist injury during service. That this testimony was offered at a Board hearing under oath also bolsters its credibility. In sum, therefore, the evidence of record includes a current diagnosis of left wrist arthritis and the Veteran’s competent and credible reports that he has experienced left wrist pain and weakness since service. The Board acknowledges that there are four VA opinions that have concluded that the left wrist disorder is not related to service. None, however, have adequately addressed the high threshold required to rebut the presumption of soundness and, indeed, when the Veteran was accepted into service without defects, the physician noted that the wrist was “quite good.” Hence, the evidence is approximately in equipoise. As such, and resolving all doubt in the Veteran’s favor, the Board finds that entitlement to service connection for left wrist arthritis is warranted. 38 U.S.C. § 5107. (Continued on the next page)   GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Schlickenmaier, 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.