Citation Nr: 21010335 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-23 706 DATE: February 24, 2021 ORDER Service connection for a back disability is granted. Service connection for a right wrist disability is denied. REMANDED A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has experienced low back pain related to degenerative arthritis since his separation from service. 2. The preponderance of the evidence is against finding that a right wrist disability began in active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for thoracolumbar spine degenerative arthritis are met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a right wrist disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1982 to October 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision. The Board remanded the claim in October 2019 to obtain a medical examination. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 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; 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). Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disability. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). Additionally, the Board has a heightened duty to assist and explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where service records are missing or presumed destroyed. However, the threshold for allowance of a claim is not lowered; and there is no presumption, either in favor of or against the claimant. See Washington v. Nicholson, 19 Vet. App. 362 (2005); O’Hare v. Derwinski, 1 Vet. App. 365 (1991). At the outset, the Board notes that in August 2012, the National Personnel Records Center (NPRC) indicated that the Veteran’s service treatment records (STRs) were missing. VA has a heightened duty to assist a claimant in developing a claim when the veteran’s STRs are not available for any reason, including because they were destroyed in the fire at the NPRC in the early 1970s. This duty includes the search for alternate medical records, as well as a heightened obligation on the Board’s part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). Back Disability Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of thoracolumbar spine degenerative arthritis as evidenced by an August 2020 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Although the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, the Board finds the Veteran’s low back disability was noted in service with attributable continuity of symptomatology. As stated previously, the Veteran’s STRs could not be located after multiple attempts to locate them. The Veteran has consistently claimed that his low back disability is the result of an injury sustained while transporting ammunition when on active duty. This claim was noted in the Veteran’s August 2020 VA examination, as well as in multiple notes in the Veteran’s medical records, and several lay statements from the Veteran and co-workers, all corroborating the Veteran’s claim. Conversely, the August 2020 VA examiner opinioned that the Veteran’s low back disability was less likely than not incurred while in service. Specifically, the examiner noted that the Veteran’s STRs were missing and there was no evidence in the record from the Veteran’s separation from service establishing any back disability, until 2011. However, this opinion fails to account from the multiple lay statements in the record regarding the Veteran’s history of back pain and in-service injury. Further, the examiner fails to account for the history taken by the examiner that acknowledges the Veteran’s claim of an in-service back injury. This inconsistency as well as the failure to address the several lay statements of record give this opinion less probative value. Based on this credible continuity of symptoms, service connection for thoracolumbar spine degenerative arthritis is warranted. Right Wrist Disability The Veteran underwent a VA examination in August 2020 regarding his claimed right wrist disability. The examiner found the Veteran to have a diagnosis of tenosynovitis of the right wrist. Therefore, the Veteran has met the first element of a service connection claim. As discussed previously, the Veteran’s STRs are missing, and not of record. However, the Veteran has consistently claimed that his wrist injury is the result of an injury incurred in-service when transporting ammunition. These competent credible claims are sufficient to establish an in-service injury fulfilling the second element of a service connection claim. Regarding a nexus between the in-service injury and the current diagnosis, the Veteran underwent a VA examination in August 2020 to determine if such a connection exists. The VA examiner found the right wrist disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner stated that there is no evidence of an ongoing wrist condition between his separation from service and the present, therefore, a nexus of continuity cannot be established. There is no competent medical opinion to refute this conclusion or otherwise link the Veteran’s wrist disability to his service. To the extent that the Veteran himself has asserted such a link, he does not possess the requisite medical knowledge or training to render such an opinion. As no causal connection between the Veteran’s wrist disability and his military service has been established service connection is not warranted. REASON FOR REMAND TDIU With respect to the Veteran’s claim of entitlement to a TDIU, the claim is inextricably intertwined with the grant of service connection for a low back disability, contained in the decision herein, because the TDIU issue may be affected by the assignments of the disability rating and effective date for the grant of service connection. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the TDIU claim will be held in abeyance pending the assignment of a disability rating and effective date for the Veteran’s low back disability. The matter is REMANDED for the following action: Once the RO has assigned a disability rating and effective date for the grant of service connection for a low back disability, and completing any other development deemed necessary, readjudicate the claim of entitlement to a TDIU considering all pertinent evidence and legal authority. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, 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.