Citation Nr: 21007483 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 12-02 018 DATE: February 9, 2021 ORDER Entitlement to service connection for a left wrist disability is denied. REMANDED Entitlement to service connection for a left foot disability is remanded. FINDING OF FACT The preponderance of the evidence is against finding that left wrist disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for left wrist disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to December 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2010 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in November 2017 and February 2020. In a November 2017 decision, the Board denied, in part, entitlement to service connection for left wrist and left foot disabilities. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the Court granted a Joint Motion for Partial Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to partially vacate and remand the November 2017 decision. Specifically, the Court found that the Board erred in holding that pain alone, without an accompanying diagnosis or identifiable condition, cannot constitute a disability. Therefore, the Court remanded the appeal for the Board to discuss the application of Saunders v. Wilkie 886 F.3d 1356 (Fed. Cir. 2018) and determine whether the Veteran’s left wrist and left foot cause functional impairment. In February 2020, the Board, in pertinent part, remanded the issues of entitlement to service connection for left foot and left wrist disabilities for actions consistent with the JMR. The appeal has now returned to the Board for review. The Board finds that, regarding the left wrist disability appeal, there has been substantial complaint with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In the April 2015 substantive appeal (VA Form 9), the Veteran requested a Board hearing at a local VA office by videoconference. In March 2017, the Veteran was notified of a Board videoconference hearing scheduled for May 16, 2017. In a letter dated and received by facsimile in April 28, 2017, the Veteran’s attorney stated that she and the Veteran withed to withdraw the Veteran’s request for a Board hearing and cancel the May 16, 2017 hearing. Thus, the Board hearing is deemed withdrawn and there is no pending hearing request. The Board notes that the AOJ requested that the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records for his left wrist disability, should any exist. VA requested records for which the Veteran submitted a proper release. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 1. Entitlement to service connection for a left wrist disability The Veteran contends that he has a current left wrist disability that is causally related to service. In a VA form 21-4138 Statement in Support of Claim received in June 2010, the Veteran asserts, in pertinent part, that regarding his left wrist disability, he is enclosing copies of his service treatment records showing he injured his left wrist in service. Further, the Veteran, through his attorney, asserts that he is entitled to service connection for his left wrist disability based on limitation of motion of the wrist. As rationale, the attorney states that the April 2019 VA examiner found that the Veteran’s left wrist “continues” to demonstrate limitation of motion on flexion and dorsiflexion. See written correspondence dated and received in January 2020. 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). In the February 2020 decision, the Board held that the Veteran’s left wrist causes functional impairment which reaches the level of a functional impairment of earning capacity, and thus constitutes a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The April 2020 VA examiner also stated that the Veteran had a diagnosis of acute wrist sprain, resolved. Thus, the first element of service connection, a currently disability, has been met. The question for the Board is whether the Veteran has a current left wrist disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has diagnoses of record including acute wrist sprain, resolved, and pain which rises to the level of a disability, the preponderance of the evidence is against finding that a left wrist disability began during active service, or is otherwise related to an in-service injury, event, or disease. With respect to an in-service injury or disease, the Veteran’s service treatment records (STRs) do not contain complaints, findings or a diagnosis with respect to the Veteran’s left wrist. Further, STRs do not show complaints of, or treatment for symptoms which could later be identified as symptoms of a left wrist disability. In April 1974, the Veteran reported to the dispensary and reported that when fell on his right wrist when he was playing combat football. The clinician noted that the Veteran’s right wrist, hand and fingers were swollen, an X-ray of the right wrist was ordered and it was placed in a cast. There are no notations of report of injury of or treatment for the Veteran’s left wrist. In the April 2019 VA examination for wrist conditions, the examiner noted that the STRs stated that the Veteran injured his right wrist playing football in April 1974. In September 1974, the Veteran was asked to report his military medical history. He stated that he had not been treated by a physician for anything within the last year and he was asked to provide any information that have not been covered that concerned him or may influence treatment. The Veteran signed the document without reporting any complaints of, or treatment for any left wrist condition. A May 1975 STR notes that the Veteran reported a history of contusion to his left elbow, with current complaints of numbness to the left hand, and the clinician’s impression was ulnar nerve trauma of the left arm. The Veteran did not make any complaints of or seek treatment for, his left wrist, and the clinician did not make any findings regarding the Veteran’s left wrist. Upon testing, the Veteran had full use of his left hand and arm and good muscle control. As noted, the Veteran’s STRs do not contain complaints of or treatment for left wrist problems. The Veteran underwent a medical examination for discharge in December 1975. Upon clinical examination, the examiner noted that the Veteran’s upper extremities were normal. The only defect and diagnoses noted upon separation is defective visual acuity. The Veteran was provided with an opportunity to report additional information about any left wrist problems in December 1975 when he was asked to make a Statement of Medical Condition. In the Statement of Medical Condition, the Veteran noted that there had been no change in his medical condition since the separation medical examination which was performed more than 3 working days prior to his departure. The Veteran had a VA examination in August 2010. The Veteran reported that he wore a cast on his left wrist after injuring it playing football in-service, a contention that is not supported by the STRs. He stated that he had aching, throbbing, and intermittent pain in his left wrist with flare-ups once a month which last 1-2 days. The VA examiner ordered x-rays of the left wrist which showed no evidence of recent or old fracture. The VA examiner then opined that based on the negative x-rays, negative examination and lack of any documentation to relate his complaints to an in-service injury, it is less likely than not that the Veteran’s present complaints (including the left wrist) are related to or aggravated by or caused by his military service. The Veteran had another examination for joints in addendum opinion for his right wrist in February 2011, and the VA examiner was asked to opine as to the etiology of any right wrist disability. The Veteran then reported that he injured his right wrist in-service playing football, an assertion which is supported by the STRs. The Veteran had a VA examination in July 2011 for his claimed right wrist disability. The examiner reviewed the record and noted the April 1974 STR which shows that the Veteran wore a cast on his right wrist after injuring it playing football in-service. The examiner noted that the Veteran has a poor recollection of how he injured his right elbow and wrist, but that he required a cast on his right wrist. The examiner diagnosed the Veteran with status post fracture, right wrist. The Veteran had another VA examination for his right wrist claim in April 2019. As previously noted, the Veteran, through his attorney, asserts that he is entitled to service connection for his left wrist disability based on limitation of motion of the wrist shown in this exam. As rationale, the attorney states that the April 2019 VA examiner found that the Veteran’s left wrist “continues” to demonstrate limitation of motion on flexion and dorsiflexion. See written correspondence dated and received in January 2020. However, the Board does not agree that the April 2019 examiner, who was performing an examination for the Veteran’s right wrist, provided any probative evidence regarding the etiology of any left wrist disability. The Veteran had a VA examination in April 2020. The examiner reviewed the Veteran’s VA e-folder and examined the Veteran. The Veteran reported that he broke his left wrist playing football in-service, was treated, and it was placed in a cast and that he still had aching, stiffness and pain in the left wrist. As previously noted, the Veteran’s STRs support a finding of an in-service injury to his right wrist, not his left wrist. The examiner noted that the Veteran had injured only his right wrist in-service playing football and there was no evidence in the Veteran’s STRs or post-discharge records which support any chronic left wrist injury residual. The examiner opined that the claimed left wrist disability was not at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. She noted that the x-rays dated August 2010 showed that the Veteran’s left wrist was normal, and that such x-rays were 37 years since his claimed injury. She further noted that his December 1975 separation examination did not indicate any left wrist concerns or residuals of injury. She also noted that the STRs reflect that the Veteran injured his right wrist playing football inservice. Finally, she stated that there was no evidence in the STRs or post discharge records diagnosing or supporting a chronic left wrist injury residual. The examiner’s opinion is probative, because 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). The Veteran also submitted a written correspondence from private physician R. C., M.D., dated December 2011 and received in January 2012 which states that he has reviewed the Veteran’s military medical problems and he believes that the Veteran’s ongoing joint problems are related to his previous military employment. The private physician then references other joints, and makes no mention of the Veteran’s left wrist. As the physician did provide an opinion regarding the Veteran’s left wrist with supporting rationale, the Board affords this opinion no probative value regarding the left wrist appeal, The Veteran submitted a written correspondence dated March 2012 and received in April 2012 from M. T. M.D., a private physician, who stated that the Veteran is under his care for numerous orthopedic conditions and that in his opinion these current conditions are at least as likely connected to his active duty service in the United States Army. The doctor did not specify whether he was opining about the Veteran’s left wrist and he did not provide a rationale for his opinion, consequently, the Board affords it no probative value regarding the left wrist appeal. Consequently, the Board gives more probative weight to the August 2010 and April 2020 VA examiner’s opinions. The preponderance of the evidence is against a finding that the Veteran has a current left wrist disability that began during service or is related to an in-service injury, event or disease. The Veteran believes his left wrist disability is related to an in-service injury, event, or disease. The Veteran, in this case, is not competent to provide a nexus opinion regarding this issue, as the issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the August 2010 and April 2020 VA examiner’s opinions. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a left wrist disability. The preponderance of the evidence does not show that a left wrist disability began during service or is at least as likely as not related to an in-service injury, event, or disease, thus the benefit of the doubt rule does not apply, and the appeal is denied. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for a left foot disability is remanded. The Veteran contends that he injured his left foot in-service playing football while stationed in Korea, and that he reinjured his left foot in-service when he slipped and fell while doing field service training during a mountain climb. See VA form 21-526, Veteran’s Application for Compensation and/or Pension received December 2009. The Veteran had a VA examination for foot conditions in April 2020. The Veteran described his left foot as having aching pain and becoming easily fatigued with prolonged walking and standing. He described stepping on something during service, which he had to have removed, and that he has had pain in his left foot ever since, which has not improved. The Veteran’s STRs reflect that he had a dog bone removed from his foot during service. The examiner found that the Veteran had left foot pain and that contributing factors of the disability are excess fatigability, pain on weight-bearing and swelling. Thus, the Board finds that this evidence, along with the Veteran’s other statements that his claimed disabilities prevent him from working, qualify as a disability pursuant to Saunders. The Board finds that further development is necessary before a decision on the merits may be made. The Veteran’s records reflect that in the September 1972 Report of Medical History, the Veteran reported having foot trouble. Additionally, the condition was not clinically noted on the September 1972 Report of Medical Examination. At the January 2013 VA Foot conditions examination, for the Veteran’s left foot, the examiner, the Veteran reported that the scar on top of his left foot is from a childhood accident. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. To rebut the presumption of soundness the burden is on VA to satisfy a two-prong test by showing by clear and unmistakable evidence that the Veteran's disability both existed prior to service and was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The Board cannot make a fully-informed decision on the issue of service connection for the Veteran’s claimed left foot disability because no VA examiner has opined whether his left foot disability clearly and unmistakably preexisted his service, and if so, whether such was clearly and unmistakably not aggravated by his service. Upon remand, an addendum opinion must be obtained to address whether any left foot disability clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated during service. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records and associate them with the Veteran’s claims file. 2. After all outstanding medical records have been associated with the file, schedule a VA examination for the left foot disability. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The Veteran’s claims file and complete copy of this Remand must be made available to and reviewed by the examiner. *The examiner is asked to provide the following opinions, regardless of whether the examiner finds that the Veteran has a current left foot disability and/or functional impairment of the left foot: (a.) The examiner should first identify the Veteran’s current left foot disabilities. Regarding each left foot disability, including pain which results in functional loss, the examiner is asked to answer the following: (b.) Is it clear and unmistakable that the Veteran had a left foot disability that preexisted his service? The examiner should consider the entire body of evidence related to the left foot, including the September 1974 Report of Medical History and the January 2013 VA examination for Foot miscellaneous where the examiner observed a scar on the Veteran’s left foot and the Veteran stated that the scar is from a childhood accident. (c) If so, is it clear and unmistakable that any left foot disability was not aggravated during his active service? Note that in this context aggravation means permanent worsening beyond the natural progression of the disability. Complete rationales must be provided for each opinion offered. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary, 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.