Citation Nr: 21014157 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 12-05 395 DATE: March 11, 2021 ORDER Entitlement to service connection for right wrist tendonitis is denied. Entitlement to service connection for left wrist tendonitis is denied. REMANDED Entitlement to service connection for chronic fatigue, to include fatigue as due to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that right wrist tendonitis began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that left wrist tendonitis began during active service, or is otherwise related to an in-service injury or disease CONCLUSIONS OF LAW 1. The criteria for service connection for right wrist tendonitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left wrist tendonitis have not been met. 38 U.S.C. §§ 1110, 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 U.S. Army from September 1990 to June 1991, July 1996 to March 1997, and July 2002 to April 2003. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in February 2018 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional VA examinations. In February 2018, the Board also remanded the issues of service connection for degenerative arthritis of the right and left knee and an acquired psychiatric disorder. In an April 2020 rating decision, the RO granted service connection for degenerative arthritis of the right and left knee and granted service connection for an acquired psychiatric disorder in November 2020, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, these matters are no longer in appellate status. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for right wrist tendonitis 2. Entitlement to service connection for left wrist tendonitis The Veteran contends his right and left wrist tendonitis is due to manually loading trucks and filling sandbags while in service. The Board finds that the evidence of record does not support a finding that right and left wrist tendonitis were related to the Veteran’s service. The Veteran’s service treatment records are silent as to symptoms or treatment for right or left wrist tendonitis. Pursuant to the February 2018 Board remand, the Veteran received a VA examination to determine the nature and etiology of his tendonitis in June 2019. The examiner concluded that the Veteran’s tendonitis was less likely than not related to service. In the rationale provided, she relied on the absence of treatment in service, as well as the Veteran’s post service employment as an assembly line worker being a risk factor, and a post service injury to his right wrist in 2011 in concluding his right and left wrist tendonitis were not incurred or caused by service. The examiner considered the relevant lay and medical evidence of record, including the Veteran’s hearing testimony, as well as the November 2017 buddy statement, referenced in the Board’s prior remand. In considering the lay and medical evidence of record, the Board finds that the most probative evidence of record does not reflect that the Veteran’s right and left wrist tendonitis were related to his military service. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). After careful review of the entire record, the Board had determined a preponderance of the evidence weighs against the Veteran’s claim. Accordingly, the claim for service connection for right and left wrist tendonitis is denied. REASONS FOR REMAND Entitlement to service connection for chronic fatigue, to include fatigue as due to service-connected disabilities is remanded. Pursuant to the February 2018 Board remand, the Veteran received a VA examination in December 2019. The examiner was directed to address the Veteran’s lay testimony and buddy statement. The examiner was also to provide an opinion as to secondary service connection to include whether the Veteran’s fatigue was caused or aggravated by his service-connected irritable bowel syndrome. The examiner did not address the Veteran’s lay testimony, buddy statement, nor did the examiner provide an opinion as to aggravation. Additionally, fatigue as due to depression was also addressed in the Veteran’s Board hearing. As noted above, the Veteran is now service connected for an acquired psychiatric disorder, and fatigue as due to such should also be considered upon remand. In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board sincerely regrets the additional delay occasioned by multiple remands. However, the Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Accordingly, remand for a VA opinion is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s fatigue. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that his fatigue was incurred in, aggravated by, or etiologically related to his military service. The examiner should discuss the Veteran’s October 2017 lay testimony as well as the November 2017 buddy lay statement that his fatigue is due to working all of the time, not eating well, taking anti-nerve agent pills, anthrax and botulism toxins vaccinations, and exposure to diesel fumes, pesticides, and indigenous diseases during Desert Storm. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that his fatigue was caused or aggravated by his service-connected irritable bowel syndrome and/or acquired psychiatric disorder. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.