Citation Nr: A21016892 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 200922-110495 DATE: October 19, 2021 ORDER Entitlement to service connection for degenerative joint disease, arthritis, of the right wrist/hand with advanced collapse of the scapholunate (slack wrist), postoperative is denied. Entitlement to service connection for chronic disability of the lower back, lumbar spine, multilevel disc disease with spondylolisthesis is denied. FINDINGS OF FACT 1. The Veteran's degenerative joint disease, arthritis, of the right wrist/hand with advanced collapse of the scapholunate (slack wrist) was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's chronic disability of the lower back, lumbar spine, multilevel disc disease with spondylolisthesis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative joint disease, arthritis, of the right wrist/hand with advanced collapse of the scapholunate (slack wrist) have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.307, 3.309. 2. The criteria for service connection for chronic disability of the lower back, lumbar spine, multilevel disc disease with spondylolisthesis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from July 1957 to April 22, 1958. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA)'s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2020 AMA rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran disagreed with that decision by timely filing a September 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and selected a hearing review by a Veterans Law Judge (VLJ). The Veteran later withdrew his hearing request in a February 2021 correspondence. As a preliminary matter, the Board of Veterans' Appeals (Board) notes the RO previously adjudicated this matter and issued a rating decision denying the claim in September 2018. The Veteran did not timely appeal the July 2018 decision and therefore that decision became final. Thereafter, the RO readjudicated the matter in a January 2020 AMA decision which found there was no new and relevant evidence. In February 2020, the Veteran requested higher level review of the January 2020 AMA decision, submitted new and relevant evidence, and the RO readjudicated the Veteran's claim on the merits in a June 2020 AMA rating decision. Since in readjudicating the issue on the merits the RO implicitly found new and relevant evidence was submitted, the Board is bound by this favorable finding. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Arthritis is a chronic disease under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 49697 (1997)); see 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for degenerative joint disease, arthritis, of the right wrist/hand with advanced collapse of the scapholunate (slack wrist), postoperative. The Veteran contends that his right hand and wrist condition is due to an injury he sustained during basic service. Specifically, he describes being on mess duty when metal serving trays fell on his hand. He was taken to the sick bay where his hand was wrapped and put in a sling, and he was given three days light duty. However, he never received an x-ray or any formal treatment. Over the years, he reported, he has had pain in his hand which grew increasingly worse until he could not use it anymore. See Medical Treatment Record, October 2019. In its January 2020 decision, the RO made the favorable finding that the Veteran had a diagnosed a disability (slack wrist, right). In the June 2020 rating decision, the RO likewise made the favorable finding that the Veteran currently suffered from a chronic, current disability of the right hand/wrist area of degenerative joint disease (DJD), osteoarthritis, of the right wrist/hand with advanced collapse of the scapholunate, postoperative as first indicated to exist in February of 2004. The Board is bound by these favorable findings. The record shows the Veteran first sought aid for his right wrist in January 2004, wherein he noted that his wrist would get swollen after working. An x-ray of the wrist revealed separation of the right navicular-lunate joint presumably due to a disruption of the lunate ligament. He declined any pain medication. He was referred to an orthopedic specialist whom he saw in February 2004. It was noted that he complained of right wrist pain which was said to have existed for years. Importantly, there was no trauma recalled. An x-ray revealed widening of the space between lunate and scaphulate, with an impression of possible degenerative joint disease and prior trauma Surgery was performed on the Veteran's right hand and right wrist in March 2012. The Veteran stated his surgeon informed him his right hand and wrist condition at the time was due to an old injury which caused a bone fragment to break loose and float around in his hand. The Veteran noted the only injury he ever sustained to that hand was the aforementioned injury during basic training. A letter from his private orthopedic surgeon, Dr. C., dated in December 2017 and received by VA in September 2019, states that the Veteran came to him in January 2012 with right wrist pain. Tests indicated there was marked restriction in motion, with findings consistent with an old scapholunate dissociation which progressed to a scapholunate advanced collapse. After surgery, the Veteran reportedly continued to complain of pain and was diagnosed with primary osteoarthritis of the right hand and carpal tunnel syndrome. After reviewing the record, the Board finds that entitlement to service connection for the Veteran's wrist condition is not warranted. In pertinent part, the record indicates and the RO has favorably found that the Veteran has current diagnosis of DJD of the right wrist. However, service treatment records (STRs) are silent as to any reports of the incident which the Veteran reports, nor are there any complaints of or treatments for a right wrist condition in service or for many years thereafter. The Veteran contends his right wrist condition is related to his in-service injury involving being hit with falling metal trays. However, significantly, the first record of treatment for the right wrist was not until 2004, decades after the alleged injury. Additionally, as previously noted, he denied any history of trauma at that time. Therefore, it is reasonable to believe that had he injured his wrist in service it would not have been decades before he sought treatment, and he would have reported such an injury to his physician when specifically asked about trauma. This is in contrast to his more recent statements about the injury in the mess hall, which were notably made in the course of and for purposes of this appeal. Based on these inconsistencies in the Veteran's statements the Board finds the statements regarding the onset of his wrist condition to be not credible. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Additionally, as a lay person without any medical training, the Veteran is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body or interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While Dr. C. noted a probable old injury to the wrist, there is no indication from him that the Veteran's wrist condition was attributable specifically to the claimed in-service injury. Absent a nexus between a current disability and service or manifestations of arthritis in service, or within a year of separation pursuant to the chronic presumption, service connection cannot be granted. Therefore, the claim is denied. In reaching this decision, the Board acknowledges that the Veteran has not been provided a VA examination. The U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. This standard has not been met in this case. Essentially, beyond the Veteran's statements, no evidence is of record to suggest that the Veteran's right hand and wrist condition either began during or was otherwise caused by his active service. These statements alone are insufficient to trigger VA's duty to provide an examination. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for chronic disability of the lower back, lumbar spine, multilevel disc disease with spondylolisthesis. The Veteran contends he has a chronic low back disability which is related to his time in service. Specifically, the Veteran states that he received three spinal taps for chronic headaches in service. He refused further spinal taps and was separated from the military. He feels that his current chronic back disability is due to the spinal taps. See June 2020 HLR-Informal Conference Report. The RO favorably found in its decisions that VA treatment records show complaints and treatment for low back pain and that the Veteran suffers from a chronic, current disability of the back, as demonstrated by private treatment records which include a diagnosis of multilevel disc disease with spondylolisthesis. See January 2020 rating decision and June 2020 rating decision. Thus, what remains for the Board to determine is whether the current disability had its onset in service, became manifest within one year of the Veteran's separation from service, or is otherwise etiologically related to an in-service event. After reviewing the record, the Board finds that the issue must be denied. Notably, although there are indications in the STRs that the Veteran was treated for headaches in service, there is no indication that he received any spinal taps as treatment for these headaches. In fact, the STRs are silent for any complaints, findings, treatment, or diagnoses related to the back. Even if the Veteran had received spinal taps in service as he describes, there is no indication his current low back disability would be related to those spinal taps. The only indication that the Veteran's alleged spinal taps are related to his current back disability is the Veteran's own statements. However, he is not competent as a lay person to provide this medical nexus between any spinal taps and his current back disability. This issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body or interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). VA treatment records show that the first indication of any back problem did not arise until November 2006 when the Veteran was noted to have intermittent left lower back pain. In January 2008, he was noted to have occasional pain on the left side back and in April 2010, he presented to the emergency room with complaints of lower back pain reported to be once a day pain at a level of 10/10. In November 2014, it was noted the Veteran had been seen by a local neurosurgeon for his chronic low back pain, who advised against surgery. A January 2016 VA treatment record reported stiffness to the lower back with sitting or standing for a long period of time. An MRI was said to show spondylolisthesis and multilevel degenerative changes. None of these treatment records relate the Veteran's back condition to his military service. As there is no indication in the record that the Veteran received spinal taps in service as he reports, and there is no competent evidence (to include any medical opinions) that links any spinal taps he may have received to his current back disability, the Board finds the evidence is against granting service connection for his lower back, lumbar spine, multilevel disc disease with spondylolisthesis. Additionally, the chronic provisions of 38 C.F.R. § 3.309(a) are not applicable as the current back disability was not diagnosed in service or within a year of his service. In fact, it was not noted until 2006, decades after the Veteran left service. As above, the Veteran has not been provided a VA examination in this matter; however, there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon, 20 Vet. App. at 81. This standard has not been met in this case. Apart from the Veteran's statements, no evidence is of record to suggest that the Veteran's low back disability either began during or was otherwise caused by his active service. These statements alone are insufficient to trigger VA's duty to provide an examination. (Continued on the next page) In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Stuedemann, Angela L. 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.