Citation Nr: 21010577 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-20 509 DATE: February 25, 2021 REMANDED Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right wrist disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2009 to March 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2019. The issues of entitlement to service connection for a bilateral wrist disability was denied. The Veteran appealed the November 2019 decision to the Court of Appeals for Veterans Claims (CAVC). In a September 2020 Order, the CAVC granted a Joint Motion for Partial Remand (“JMPR”), vacating and remanding the right wrist claim upon finding the Board failed to ensure VA satisfied the duty to assist to provide the Veteran with an adequate VA examination. The left wrist claim was vacated and remanded due to the Board’s failure to address the March 2019 testimony in discussing whether Appellant’s left wrist pain causes functional impairment that results in impaired earning capacity. The Board finds a remand is warranted for both claims, as discussed below. 1. Entitlement to service connection for a left wrist disability The Veteran alleges he has a left wrist disability related to service. In the November 2019 Board decision, the Board found the Veteran did not have a left wrist disability based on the July 2013 VA examination. The July 2013 VA examiner found the Veteran does not have a current diagnosis related to his left wrist as there was a normal examination for the left wrist. The Veteran reported pain for the left wrist was rare and there was no pain or palpation found during the examination. In June 2018 VA treatment records, the Veteran reported pain in both wrist for the last two months. He described the pain as sharp shooting pain with numbness in his hands. An assessment revealed a decrease in grip strength and wrist pain. The physician noted the plan was to conduct an x-ray of the wrists. In February 2019 VA treatment records the Veteran reported the prescribed diclofenac gel is not helping the swelling or pain in his wrist or neck. The specific wrist was not identified. During the March 2019 Board hearing the Veteran testified to soreness, tightness, swelling, pain and stiffness in both wrists; he further testified the symptoms were worse when typing and participating in daily activities. In April 2019 VA treatment records reflected complaints of achy wrist. The JMPR states, in part: “on remand, the Board must address Appellant’s March 2019 testimony in discussing whether Appellant’s left wrist pain causes functional impairment that results in impaired earning capacity.” The Board notes that, under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Allen v. Brown, 7 Vet. App. 439 (1995): Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) the Federal Circuit held 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.” In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit did emphasize that they were not holding a veteran could demonstrate service connection “simply by asserting subjective pain.... To establish the presence of a disability, the veteran will need to show that her pain reaches the level of functional impairment of earning capacity.” In other words, subjective pain in and of itself will not establish a current disability. In this case the Veteran’s March 2019 testimony reflected testimony different from his reports to the VA examiner in July 2013. During the March 2019 Board hearing the Veteran testified to soreness, tightness, swelling, pain and stiffness in both wrists; he further testified the symptoms were worse when typing and participating in daily activities. As there is evidence of functional impairment, as demonstrated in the Veteran’s testimony, the Board finds the Veteran may suffer from a disability and a VA examiner should assess the Veteran’s current left wrist impairment. In light of the Veteran’s consistent complaints of pain in his left wrist as demonstrated with the June 2018 and April 2019 treatment records coupled with the March 2019 testimony regarding functional impairment, the Board finds a VA examination addressing the nature and etiology of a current left wrist disability, if any, is warranted. 2. Entitlement to service connection for a right wrist disability The JMPR states, in part: Appellant was afforded a compensation and pension (C&P) examination in July 2013; although the examiner diagnosed a right wrist condition, he did not discuss Appellant’s medical history or provide an etiology for Appellant’s right wrist condition. Failure to offer an etiology opinion rendered the July 2013 examination inadequate. Therefore, remand is necessary. On remand, the Board must obtain a medical opinion addressing the etiology of Appellant’s right wrist condition. In view of the JMPR’s findings, the Board finds a new VA examination is warranted for the service connection claim for the right wrist disability. The matters are REMANDED for the following action: 1. Obtain any ongoing VA or private treatment records. Should they exist, associate them with the claims file. 2. Provide the Veteran with a VA compensation examination to ascertain the current nature and etiology of a current left and right wrist disability. The claims file should be made available to the examiner for review of the medical history in conjunction with the examination, and the examination report should reflect that such review was accomplished. The examiner must review the March 2019 Board hearing testimony as it relates to the left and right wrist. The examiner shall provide an opinion as to the following questions: a. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s current left wrist disability, if any, was incurred in or is a result of his period of active duty service? b. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s current right wrist disability was incurred in or is a result of his period of active duty service? In doing so, the examiner should be aware that the Veteran has reported testified to soreness, tightness, swelling, pain and stiffness in both wrists. Furthermore, he testified the symptoms were worse when typing and participating in daily activities. If functional impairment is found this will constitute a current left wrist disability under Saunders, 886 F.3d at 1361. A detailed rationale supporting the examiner’s opinion should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. Note: 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. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. To the extent that telehealth technology permits an alternative to an in-person examination, such opportunity is fully acceptable in lieu of an in-person examination. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.