Citation Nr: 21012615 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 05-34 555 DATE: March 4, 2021 ORDER Entitlement to service connection for left wrist degenerative joint disease (DJD) is granted. REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 18, 2019 is remanded FINDING OF FACT The Veteran’s left wrist DJD had its onset during active duty for training (ACDUTRA). CONCLUSION OF LAW The criteria for entitlement to service connection for left wrist DJD are met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1972 to November 1974 and from December 2002 to October 2003. He also had additional periods of Reserve service, to include ACDUTRA from August 7 to August 17, 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2013, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the appeal in December 2013, August 2015, and May 2019. Notably, during the pendency of this appeal, a November 2019 rating decision awarded service connection for dextroscoliosis. This issue is accordingly not in appellate status. Moreover, beginning November 18, 2019, the Veteran is in receipt of a combined 100 percent disability rating. See December 2020 rating decision. As such, entitlement to a TDIU as of that date is moot but entitlement to a TDIU prior to that date is before the Board. Thus, the issue has been recharacterized accordingly. 1. Entitlement to service connection for left wrist DJD is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty. 38 U.S.C. § 101; 38 C.F.R. § 3.6. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Presumptive service connection provisions do not apply to ACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Similarly, neither the presumption of soundness nor the presumption of aggravation during service of pre-existing diseases or injuries that undergo an increase in severity during service apply to periods of ACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Here, the presence of a current orthopedic left wrist disability is not in dispute, as the Veteran has been diagnosed with left wrist DJD. See October 2014 VA examination report. Accordingly, the first element of service connection is established. Turning to the second element, in-service incurrence of a disease or injury, treatment records indicate that the Veteran fell off a ladder and onto a desk, falling from approximately 6 feet above and landing on his left side, during a period of ACDUTRA. See August 2000 medical treatment records and August 2000 accident report. While the records associated with the August 2000 fall do not reflect complaints, treatment for, or diagnosis of a left wrist disability, the Veteran competently and credibly reported injuring his left wrist during that fall, stating that it folded under him when he fell. See Board Hearing Transcript at 13. Affording the Veteran the benefit of the doubt, element two is also met. Regarding the last element, nexus, the record contains both unfavorable and favorable evidence. Against the claim is an October 2014 VA opinion, which does not consider the August 2000 fall, as well as an August 2016 VA opinion, which is based on an inaccurate factual premise. Therefore, these opinions are inadequate and are of no probative value. Additionally, a January 2019 Veterans Health Administration opinion is against the claim, finding that the Veteran’s left wrist DJD is unlikely related to service, to include as a result of the August 200 fall. In favor of the claim is an October 2019 VA opinion. While the examiner opined that the Veteran’s left wrist DJD was not secondary to a service-connected disability, he instead attributed it to the August 2000 fall. He noted that the Veteran had a history of a fall and injuring his left wrist in the process, which “explains the wrist condition in 2000 which has progressed overtime resulting to degeneration of the left wrist joint,” per the examiner. The evidence is at least in equipoise as to whether the Veteran’s left wrist DJD is related to service. Accordingly, after resolving all doubt in the Veteran’s favor, service connection is warranted. REASONS FOR REMAND 2. Entitlement to service connection for residuals of a TBI is remanded. Although the Board regrets the additional delay, a remand is again required. In this regard, the October 2019 VA examiner indicated that the Veteran had pre-existing TBI residuals that were not aggravated during service but did not provide any rationale in support of finding there was no aggravation, despite noting the Veteran’s history of falls, rendering the opinion inadequate. Moreover, the record indicates that the Veteran’s TBI residuals may be attributable to a service-connected disability, namely progressive ataxic syndrome or neurocognitive disorder, warranting a secondary service connection opinion on remand. 3. Entitlement to a TDIU prior to November 18, 2019 is remanded. The Veteran’s entitlement to a TDIU is inextricably intertwined with the issue remanded above and therefore must also be remanded. Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Then refer the claims file to an examiner other than the August 2016 and October 2019 VA examiners for preparation of an addendum opinion addressing the etiology of the Veteran’s TBI residuals. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that any diagnosed TBI residuals, including (1) blackouts, (2) memory loss, and (3) poor concentration (see September 2006 VA examination report): (a) had their onset during the Veteran’s period of ACDUTRA from August 7, 2000 to August 17, 2000 or are otherwise related to that period, to include as a result of the documented August 2000 fall. (b) If the answer to question (a) is no, is there clear and unmistakable evidence that such TBI residuals pre-existed the Veteran’s second period of service from December 2002 to August 2003? Please discuss the October 1987 neurosurgery note indicating a prior concussion and memory problems. (c) If the answer to question (b) is yes, is there clear and unmistakable evidence that such pre-existing TBI residuals WERE NOT aggravated (worsened beyond natural progression) during that second period of service from December 2002 to August 2003, to include as a result of the December 2002 fall, but excluding the March 2003 intoxicated fall? Please discuss the medical evidence supporting your conclusion. (d) If the answer to question (b) is no, or the answer to question (b) is yes and question (c) is no, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such TBI residuals: (1) had their onset during the Veteran’s second period of service from December 2002 to August 2003 or are otherwise related to that period, to include as a result of the December 2002 fall, but excluding the March 2003 intoxicated fall; (2) are proximately due to his service-connected progressive ataxic syndrome and/or neurocognitive disorder; or (3) have been aggravated (worsened beyond natural progression) by his service-connected progressive ataxic syndrome and/or neurocognitive disorder. In answering these questions please address each symptom separately and note there is no temporal requirement that the primary condition (ataxic syndrome or neurocognitive disorder) be service-connected, or even diagnosed, at the time the secondary condition (TBI residuals) is incurred, and reliance on this fact will render any opinion inadequate. Please note that the Veteran has conceded current TBI residuals, and therefore any opinion premised on a lack of current TBI residuals will be returned as inadequate. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.