Citation Nr: 21065203 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-36 670 DATE: October 25, 2021 ORDER Entitlement to service connection for residuals of a right wrist injury is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence of record demonstrates it is at least as likely as not that the Veteran's residuals of a right wrist injury, including pain, is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a right wrist injury have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1978 to May 1978, from March 1991 to April 1991, and from January 2003 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issue on appeal in October 2019 for additional development. Specifically, the Board requested the RO to obtain the Veteran's Georgia National Guard Reserves service treatment records and a new VA examination. A review of the record shows substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the Board's prior October 2019 decision, the Board also addressed the issue of entitlement to service connection for residuals of a head injury. In a May 2021 rating decision, the RO granted service connection for a traumatic brain injury, migraine headaches, and scars related to the Veteran's in-service head injury. As this decision represents a full grant of the benefit sought, this issue is no longer on appeal. The Board further notes that on the Veteran's July 2018 substantive appeal, he requested a hearing before the Board. However, in an April 2019 third party correspondence, the Veteran's representative requested to withdraw the Veteran's hearing request. Therefore, the Veteran's hearing request is withdrawn, and the Board will proceed with adjudication of the issue. See 38 C.F.R. § 20.704(e). Entitlement to service connection for residuals of a right wrist injury. The Veteran seeks service connection for residuals of a right wrist injury. See May 2015 VA Form 21-526. The Veteran contends that he injured his wrist while moving a barricade while on active duty, was treated with a brace and pain relievers in service, and that pain persisted after stopping his pain medications since service. See August 2019 and November 2020 VA examinations. Generally, service connection may be established on a direct incurrence basis for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) 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, 1167 (Fed. Cir. 2004). The Board notes that service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including resulting from undiagnosed illness, that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Persian Gulf War is defined as beginning on August 2, 1990, through a date to be prescribed by Presidential proclamation or law. 38 U.S.C. § 101(33); 38 C.F.R. § 3.2(i). Regarding service connection on a presumptive basis, the Veteran's DD Form 214 indicates service in Southwest Asia during his active duty service. Therefore, he is a Persian Gulf veteran for these purposes. The evidence of record demonstrates the Veteran was diagnosed with a chronic right wrist sprain and chronic right wrist pain. See August 2019 and November 2020 VA examinations; April 2011 VA treatment records. Therefore, the presence of a current disability has been met. See Shedden, 381 F.3d at 1167. As such, the record does not support a finding that the Veteran's right wrist sprain is an undiagnosed illness or a medically unexplained chronic multi-symptom illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). Moreover, the Veteran does not assert that his right wrist sprain was caused by or otherwise etiologically related to any environmental exposures in Southwest Asia. Accordingly, the preponderance of the evidence is against finding that the Veteran is entitled to presumptive direct-incurrence service connection for his right wrist sprain. The presumptive regulations, however, do not preclude a claimant from establishing service connection with proof of direct causation. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In regard to an in-service event, injury, or disease, the Board finds that the Veteran has consistently reported that he injured his right wrist during a period of active duty service. The Board notes the Veteran is competent to provide lay evidence of the existence of symptoms that are capable of lay observation and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the Veteran stated that he injured his right wrist while moving barricades during his active duty service. See August 2019 and November 2019 VA examinations. The Veteran provided buddy statements from fellow servicemembers in support of his claim. In one statement, a fellow servicemember stated that the Veteran was assigned to move barricades on several occasions and that the Veteran reported to him that he injured his wrist while he was moving the barricades and advised the Veteran to go to the doctor to make sure it was okay. See August 2019 buddy statement. In another buddy statement, a fellow servicemember who served with the Veteran stated the Veteran injured his wrist while moving a barricade during a shift they worked together. See August 2019 buddy statement. The Veteran also provided an undated photograph that he contends shows him wearing a brace that was provided to him during his active duty service to treat his right wrist injury. See January 2016 photograph. In regard to the third element of service connection, the Veteran's VA treatment records demonstrate the Veteran's reports of right wrist injury in service, that he wore a brace for a while, and had intermittent discomfort since service that was increasing in frequency and severity. See February 2011 VA treatment records. The Veteran's VA treatment records also appear to indicate the Veteran's chronic right wrist pain has continued since he injured it on active duty service. See April 2011, May 2017, April 2019, and April 2020 VA treatment records. The Veteran was afforded a VA examination in August 2019 at the request of the Veteran through his primary care physician. The VA examiner noted the Veteran's report of injuring his right wrist in service. See August 2019 VA examination. However, the VA examiner did not provide a medical opinion as to whether the Veteran's current right wrist disability is at least as likely as not related to the reported right wrist injury in service. Id. Therefore, the August 2019 VA examination is inadequate for decision making purposes and not entitled to any significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Pursuant to the Board's October 2019 remand, the Veteran was afforded a second VA examination in November 2020. The VA examiner opined that it was less likely than not that the Veteran's right wrist disability was incurred in or caused by the claimed in-service injury. See November 2020 VA examination. As rationale, the VA examiner acknowledged the Veteran's statements and buddy statements that he injured his right wrist in service. Id. However, the VA examiner noted the Veteran did not seek treatment covering the period from the date of onset in service to 2016; and that it was mere speculation to conclude that the Veteran sustained such a traumatic injury in 2005 and did not begin receiving treatment until 2017. Id. The VA examiner also noted there was no evidence of treatment during military service, no scarring, disfigurement or radiographic changes to support the history of a traumatic injury. Id. However, the VA examiner did not address the Veteran's photograph showing a wrist brace and did not discuss the Veteran's VA treatment records demonstrating the Veteran's reports of right wrist pain related to his service since at least February 2011. Therefore, the November 2020 VA examination is inadequate for decision making purposes as it is not based on an accurate factual premise. See Nieves-Rodriguez, 22 Vet. App. at 302. The Board notes that a Veteran may be competent and credible to provide a lay opinion as to the nexus or etiology of a disability depending on the nature of the disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Moreover, in appropriate situations, the Veteran can report symptoms to establish the link between an in-service incurrence and subsequent diagnosis of a disability. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. (Continued on the next page) In this case, the Board finds the Veteran's current right wrist disability is related to his service. The Board reiterates that the Veteran has consistently and credibly reported experiencing symptoms, including right wrist pain, since his service that led to his diagnosis of chronic right wrist pain and sprain. Buddy statements from the Veteran's fellow servicemembers corroborate the Veteran's statements that he injured his right wrist in service. Additionally, VA treatment records note the Veteran's continued complaints of right wrist pain related to the injury in service. Moreover, there is no reason to doubt the Veteran's photograph shows the Veteran was provided a brace for his right wrist due to the reported injury in service. Thus, in applying the benefit of the doubt doctrine, the Board attributes the Veteran's symptoms of right wrist pain and sprain to his right wrist injury in service. Therefore, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's right wrist disability is related to his active duty service as his symptoms began in service, continued since service, and led to his current diagnosis. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(d); see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such, service connection for right wrist sprain is granted on a direct incurrence basis. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.