Citation Nr: 21003541 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-17 557 DATE: January 21, 2021 ORDER Entitlement to service connection for residuals of a left leg injury is dismissed. Entitlement to service connection for a right wrist disability is granted. FINDINGS OF FACT 1. In November 2019, prior to the promulgation of a decision in the appeal, the Veteran’s representative confirmed on the record that he wanted to withdraw the issue of entitlement to service connection for residuals of a left leg injury. 2. Resolving reasonable doubt in the Veteran’s favor, his right wrist disability is at least as likely as not related to injuries he sustained in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for residuals of a left leg injury have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for a right wrist disability have 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 had active service from August 1988 to August 1992. In November 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Withdrawn Issue – Residuals of a Left Leg Injury The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the November 2019 hearing, the Veteran’s representative confirmed on the record that he wanted to withdraw the issue of entitlement to service connection for residuals of a left leg injury. Prior to the representative’s confirmation, the VLJ afforded the Veteran and his representative an opportunity to discuss the issue off the record. Given that there remain no allegations of errors of fact or law for appellate consideration as to the issue of entitlement to service connection for residuals of a left leg injury, the Board does not have jurisdiction to review this issue. It is, therefore, dismissed. Service Connection – Right Wrist Disability The Veteran contends that his current right wrist disability stems from an in-service injury. Specifically, he asserts that he was shot in the wrist during the last month of his military service. See Board hearing transcript at 4. He also asserts that symptoms of his in-service right wrist injury have continued since service. Service connection may be established 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. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also 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). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. Here, the Board finds that the Veteran has a current right wrist strain disability, as indicated on a January 2013 VA Disability Benefits Questionnaire (DBQ). In addition, private treatment records from Dr. F.M., obtained in December 2019, show diagnoses of wrist pain and wrist weakness. An accompanying DBQ obtained from Dr. F.M. reflects diagnoses of chronic right wrist pain and complex regional pain syndrome. Service treatment records (STRs) dated in April 1989 show that the Veteran sustained an injury to his right wrist and that the pain and swelling persisted for approximately five days. STRs dated in April 1991 reveal right wrist swelling and pain. The Veteran was diagnosed with right wrist strain, for which he was prescribed pain medication. Also, private treatment reports from M.M.C., dated in August 1992, reveal that the Veteran sustained a gunshot wound to his right hand. The question remaining for the Board is whether the evidence establishes that the Veteran’s current right wrist disability is related to the injuries he sustained in service. There are opinions both in favor of, and against, this question. Evidence against the claim includes the January 2013 VA DBQ, on which the examiner negatively opined that the Veteran’s right arm injury is less likely as not related to service. The examiner noted that, although STRs reveal that the Veteran sustained a right wrist sprain, the X-rays were negative in 1989. He stated that there is no further evidence of a right wrist condition until the date of the VA examination. The examiner further noted that there are no medical records to confirm details of the Veteran’s report of a gunshot wound sustained to the right wrist in 1992. The examination report shows that the examiner did not review any of the Veteran’s private treatment records or post-service VA medical records. Evidence in favor of the claim includes the Veteran’s Board hearing testimony, private treatment records, and a private medical opinion. At the November 2019 Board hearing, the Veteran testified that he sustained a gunshot wound to his right hand in August 1992, shortly before leaving service. See Board hearing transcript at 4. The Veteran’s statements are corroborated by private treatment records submitted in December 2019, which document a gunshot wound to the Veteran’s right hand. The Veteran also testified that he underwent surgery on his right wrist in March 2017. See Board hearing transcript at 8. In a private medical opinion obtained in December 2019, Dr. F.M. opined that the Veteran’s right wrist disability is directly caused by the gunshot wound to his right hand in August 1992, and the resulting surgery from that gunshot wound. He noted that he has examined and treated the Veteran and believes that the persistent symptoms such as pain, weakness, and parasthesia are the direct result of the gunshot wound. Dr. F.M. discussed details surrounding the Veteran’s injury, symptoms, and continuity of symptoms. He also indicated that he reviewed the Veteran’s STRs and all post-service medical records. Based on a review of the above evidence, the Board finds that service connection for the Veteran’s right wrist disability is warranted. In making this determination, the Board finds that the private assessment and opinion, obtained in December 2019, provide the more probative evidence of record. The private clinician reviewed the Veteran’s claims folder and considered the Veteran’s report of symptoms and medical history. This private clinician also indicated that he physically examined the Veteran. The private medical opinion is probative as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As previously stated, the January 2013 VA examiner indicated that he did not review the Veteran’s private treatment records, which contain information pertinent to the Veteran’s disability. As such, the Board assigns it less probative value. As the evidence is in equipoise as to whether the Veteran’s right wrist disability began in service and has been continuous since service, service connection for this disability is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.