Citation Nr: 21067114 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-05 301 DATE: November 3, 2021 ISSUES 1. Entitlement to service connection for a right elbow disability. 2. Entitlement to service connection for a right wrist disability. 3. Entitlement to service connection for a right arm disability. REMANDED Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a right arm disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, each of the above-listed claims were denied in a rating decision from May 2014. The Veteran filed a timely Notice of Disagreement (NOD) that same month, and he was issued a statement of the case (SOC) in December 2016. The Veteran then filed a timely VA Form 9 in December 2016, in which he requested a hearing before a Veterans Law Judge. The Veteran's claims were certified to the Board in February 2017. The Veteran was scheduled for a hearing in July 2020 which he did not attend. He was rescheduled for that hearing in October 2020, which he also did not attend. No good cause has been demonstrated by the Veteran as to why those hearings were not attended, and no request has been submitted for the hearing to be rescheduled. Thus, the Board considers the Veteran's request for a hearing abandoned. 1. Entitlement to service connection for a right elbow disability is remanded. The Veteran has claimed that he has a right elbow disability that is due to his active-duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). The Veteran wrote in his NOD that he was stationed in South Korea from 1981 to 1982 and was given mail-call duties. The Veteran wrote that he "hit a pothole that sent me off the bicycle I was riding, hitting the pavement," and that this led to a "fractured right elbow." He then stated that he was treated at the 121st Evac Hospital, and that his right arm was "set in a half case for 8 weeks." The Board has confirmed that the Veteran's service treatment records include a July 1982 note from the 121st Evac Hospital, stating that the Veteran had injured his "right radial neck." The medical note indicates that the Veteran's right arm was placed in a sling. The Veteran was given a VA examination for his claimed right elbow disability in December 2016. The Veteran was seen in person and his claims file was reviewed. The examiner noted the Veteran's elbow diagnosis to be "history of alleged radial neck fracture, right elbow." No current diagnosis was noted. During the exam, the Veteran stated that he fell off his bike while in South Korea and broke his elbow. The Veteran stated that he has pain in his arm and right elbow, and that his "fingertips go numb." The examiner then opined that the Veteran's claimed disability was less likely than not due to his active-duty service. The following rationale was provided: Based on review of all medical records available, history and exam today, it is the medical opinion of this examiner that this Veteran's [carpal tunnel syndrome] is not related to the radial neck fracture, right elbow. The fracture of the radial neck is anatomically very distantly located (elbow area) in comparison to the anatomical location of the [carpal tunnel syndrome] (in the wrist area), therefore this type of correlation cannot be explained with any known neuroanatomic principles and with the available objective evidence. The examiner continued that I cannot resolve this issue without resort to mere speculation due to the fact that the x-ray of right elbow obtained today does not reveal any evidence of old fracture of the radial head; the documentation of the fracture in the Veteran's STR is hand-written, illegible and difficulty to read. As such, the examiner provided a negative etiological opinion as to the Veteran's claimed right elbow disability. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In consideration of the above, the Board finds that the December 2016 VA examination is inadequate. To begin, the examiner noted that the Veteran's diagnosis was "history of alleged radial neck fracture, right elbow." In noting that the right elbow disability was a "history of" as well as being "alleged," the examiner did not confirm whether or not the Veteran had a current diagnosis. This is required under 38 C.F.R. § 3.303(a). As the current diagnosis, if any, has not been confirmed, the opinion provided did not address the correct question as it relates to the Veteran's claim for entitlement to service connection. The second portion of the opinion, whereby the examiner noted that the current x-ray did not reveal any residuals of the in-service injury to the radial head of the right elbow, was not based on a diagnosis made which considers the recent holding in Saunders v. Wilkie. In Saunders v. Wilkie, the Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Thus, the examiner must consider whether or not the Veteran has a current diagnosis under Saunders, and then an etiological opinion must be provided as it relates to the Veteran's in-service injury. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. 2. Entitlement to service connection for a right wrist disability is remanded. The Board incorporates its discussion from the sections above by reference. The Veteran has claimed that he has a right wrist disability that is due to his active-duty service. The Veteran wrote in his NOD that the pain in his right wrist and right arm is linked to "the ulnar nerve." He wrote that that pain was "caused by the constant repetition of welding which I was trained to do by the U.S. Army." The Board notes that the Veteran's DD-214 indicates that he was a "metal worker" for approximately 2 years and 9 months, and that he was given 8 weeks of metal worker training. As such, the lay statements he provided in relation to his welding have been confirmed. As noted above, the Veteran was given a VA examination in December 2016. The examiner wrote that the Veteran had a diagnosis of bilateral carpal tunnel syndrome, specifically with incomplete paralysis of the right median nerve. The examiner then only included the negative etiological opinion that was discussed in the prior section related to the Veteran's claimed right elbow disability. In consideration of the above, the Board finds that the December 2016 VA examination is also inadequate as it relates to the Veteran's claim for entitlement to service connection for a right wrist disability. While the examiner noted that the Veteran did have a current diagnosis of bilateral carpal tunnel syndrome, which includes his right wrist, the examiner provided a negative etiological opinion in relation to the Veteran's right elbow disability. As noted however, the Veteran has not claimed that his right wrist disability was due the in-service injury of falling off the bicycle, but instead that it was due to his military occupational specialty (MOS) of being a welder, which involves constant repetition of the wrist area. As such, the Veteran's claim must be remanded for an additional VA examination, so that an etiological opinion can be given which addresses the Veteran's lay statements, as well as his MOS of being a welder while on active duty. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. 3. Entitlement to service connection for a right arm disability is remanded. The Board incorporates its discussion from the sections above by reference. As noted above, the Veteran has claimed that his right wrist and right arm disability is due to his active-duty service, specifically the constant repetitive motions of welding that he completed as part of his MOS. During the Veteran's VA examination from December 2016, a disability related to the right arm, separate and distinct from his right wrist and right elbow, was not found. The examiner noted that the Veteran's right wrist disability was carpal tunnel syndrome, but the examiner did not note that the incomplete paralysis of the median nerve also impacted the Veteran's right arm. Again, an etiological opinion was only provided in relation to the Veteran's claimed right elbow disability. As such, the Veteran's claim must be remanded so that a VA examiner can confirm what, if any, current disability the Veteran has to his right arm, and whether or not that disability is separate and distinct from his right wrist and claimed right elbow disabilities. That diagnosis must be made pursuant to the holdings in Saunders. Id. If a separate and distinct right arm disability can be confirmed, the examiner is asked to provide an etiological opinion that addresses the Veteran's lay statements and his MOS of being a welder while on active duty. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Following Step 1, schedule the Veteran for VA examinations (or telehealth interviews, reviews of the record, etc., if an in-person examinations are not feasible) by appropriate clinicians to determine the nature and etiology of the Veteran's right wrist disability, and his claimed right arm and right elbow disabilities. Multiple VA examinations should be scheduled as deemed necessary. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner should provide responses to the following questions: (a.) the examiner is to provide a diagnosis which accounts for the Veteran's present symptoms of his claimed right elbow and right arm disabilities. The diagnosis, if any, of the right arm should be one that is separate and distinct from the right wrist disability and the claimed right elbow disability. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as pain, or instability. Complete the "Functional Impact" section of the report. (b.) The examiner is also asked to confirm the Veteran's current right wrist disability. Then, for any/all current disabilities found, address: (c.) Is it at least as likely as not (50 percent or greater) that the Veteran's disabilities were caused by a disease or injury in service? **Please note new case law: pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). The examiner is reminded that the Veteran has provided competent lay statements that he experiences pain and functional loss to his right elbow, right arm, and right wrist. The examiner is also reminded that the Veteran's in-service right radial neck injury from July 1982 has been confirmed, as well as his MOS of being a metal worker, which likely required constant repetitive motion of the right wrist and right arm. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.