Citation Nr: 21077216 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-57 457 DATE: December 29, 2021 ORDER Entitlement to service connection for a left wrist disability is denied. FINDING OF FACT The evidence of record shows that the Veteran's pre-existing left wrist condition was not aggravated by his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left wrist disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1997 to September 2001 as well as additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Army National Guard. In August 2019, the Veteran testified at a Board of Veterans' Appeals (Board) hearing before a Veterans Law Judge (VLJ). The transcript from that hearing is of record. In May 2021 correspondence, the Veteran was informed that the VLJ who conducted his August 2019 hearing was no longer employed at the Board and was asked if he desired another Board hearing. The Veteran did not respond to correspondence offering him another hearing; thus, the Board will proceed with adjudication of this appeal. This matter was previously remanded by the Board in November 2019 and July 2021. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a left wrist disability The Veteran asserts that his left wrist was injured in May 2008 during a period of Active duty for training (ACDUTRA). Specifically, at his August 2019 hearing he testified that he was running during physical training while on active duty for training on May 26, 2008 and injured his left wrist during a fall. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Inactive duty for training (INACDUTRA) is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6(c)(1). Active duty also includes authorized travel to or from such duty or service. 38 C.F.R. § 3.6(e). ACDUTRA is not defined as "active" service unless the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). INACDUTRA is not defined at "active" service unless the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. A July 2013 written statement from the Veteran reflects his assertion that he injured his left wrist on May 26, 2008 during active duty for training. Service treatment records dated October 2008 record the Veteran's report of injuring his left hand on May 26, 2008 while riding a BMX bike. The Veteran had an examination for his left wrist condition in March 2013. The Veteran reported a left wrist injury in 2008 that required hardware fixation of his scaphoid bone and some tendon damages. The examiner opined that it was at least as likely as not that the Veteran's left wrist condition was the result of his reported left wrist injury in 2008. Leave and earning statements of record detail the Veteran served a period of INACDUTRA, morning and afternoon drill, from May 2, 2008 to May 4, 2008. Medical treatment records and service treatment records both reflect the Veteran reported his injury occurred May 26, 2008, his subsequent left wrist surgery took place on June 2, 2008, and all subsequent treatment records for the left wrist are dated after May 26, 2008. The Veteran had another examination for his left wrist condition in September 2021. The examiner opined that it was less likely than not that the Veteran's left wrist condition was due to an in-service condition, since the date of the Veteran's injury was not in an active-duty period. The examiner further opined that the Veteran's left wrist condition was clearly and unmistakably not aggravated beyond its natural progression during his period of service after May 2008. The examiner stated that there was no evidence medically that the wrist fracture was aggravated beyond the natural progression. The examiner noted that natural progression is stiffness, limited range of motion which existed in service, then eventually diagnosed with degenerative joint disease in 2013, five years post-surgery. The Board finds that no evidence of record supports the Veteran's left wrist injury occurred during his INACDUTRA or ACDUTRA service. Although the March 2013 examiner opined that it was at least as likely as not that the Veteran's current left wrist condition is the result of his left wrist injury that occurred in 2008, it appears to have been based on an inaccurate factual premise. Specifically, the probative evidence of record indicates that the injury did not occur during active service, ACDUTRA, or INACDUTRA. Furthermore, although the Veteran has stated that the injury occurred during a period of ACDUTRA, the Board finds the contemporaneous medical treatment records and leave and earning statements to carry significantly more probative weight. 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). In this case, there is a question as to whether the Veteran's left wrist condition preexisted his military service during periods of ACDUTRA from August 1, 2008 to August 27, 2008 and from October 17, 2008 to October 28, 2008 as well as additional periods of INACDUTRA from November 12, 2008 to November 16, 2008 and from December 5, 2008 to December 6, 2008. The Veteran's appeal is based on the periods of ACDUTRA from August 1, 2008 to August 27, 2008 and from October 17, 2008 to October 28, 2008 as well as additional periods of INACDUTRA from November 12, 2008 to November 16, 2008 and from December 5, 2008 to December 6, 2008. Veteran status is not the only requirement for the presumption of soundness to attach. The presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected". See Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). In this case, an entrance examination was not conducted for the period of service in question. As such, the presumption of soundness cannot apply. An entrance examination is not required for a claimant to receive the presumption of aggravation for a claim based on a period of ACDUTRA or INACDUTRA where the Veteran is able to establish "veteran" status by virtue of one service-connected disability and attempts to service connect a second disability under the presumption of aggravation. Hill, 28 Vet. App. 243, 246. Instead, a Veteran need only submit evidence that helps establish that there is an increase in disability during such service. 38 U.S.C. § 1153. If Veteran submits documentation that, together with the rest of the record, evidences both the baseline severity of the preexisting condition prior to the period of ACDUTRA and a permanent increase in disability during a period of ACDUTRA, the claimant may take advantage of the presumption of aggravation. Hill, 28 Vet. App. 243, 246. The most competent and credible evidence of record illustrates that the Veteran's left wrist condition preexisted active service. The evidence of record is clear that the Veteran injured his left wrist in May 2008 prior to his periods of ACDUTRA from August 1, 2008 to August 27, 2008 and from October 17, 2008 to October 28, 2008 as well as additional periods of INACDUTRA from November 12, 2008 to November 16, 2008 and from December 5, 2008 to December 6, 2008. Therefore, the Board must next consider whether the most competent and credible evidence of record establishes baseline of severity at entrance to service and that there was a permanent increase in severity during the relevant period of service. The September 2021 left wrist examination noted that the Veteran's left wrist condition had gotten worse. The examiner specifically noted that the Veteran was diagnosed with degenerative joint disease in 2013. As the most competent and credible evidence of record establishes the baseline of severity on entrance to the relevant period of service and that a permanent increase in severity occurred after, (i.e., the diagnosis of degenerative disease thereafter), the presumption of soundness aggravation attaches. Once this showing has been made, the government has the burden to rebut by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. See 38 C.F.R. § 3.306(b). 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). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Board finds the September 2021 examiner's opinion to be highly probative because the examiner provided an adequate rationale based on the pertinent evidence of record. Furthermore, there is no medical evidence of record that directly contradicts the September 2021 examiner's opinion. As there is clear and unmistakable evidence that the Veteran's left wrist condition was not aggravated during the relevant period of service and the worsening was due to the natural progression of the disability, the presumption of aggravation is rebutted. As the presumption of aggravation has been rebutted and the evidence of record does not illustrate that the Veteran's left wrist condition was not aggravated during the relevant period of service and the worsening was due to the natural progression of the disability, the Veteran's claim must be denied. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application here. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.