Citation Nr: 21014328 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 13-09 572 DATE: March 11, 2021 ORDER Entitlement to service connection for a right wrist disability is denied. FINDING OF FACT A chronic right wrist disability was not manifested in service or for many years thereafter; and the preponderance of the evidence is against a finding that any such disability is etiologically related to the Veteran’s service. CONCLUSION OF LAW Service connection for a right wrist disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1969 to June 1971 and was awarded a Bronze Star Medal, Purple Heart Medal, and Combat Infantry Badge. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision that, in pertinent part, denied service connection for right wrist, neck, and low back disabilities. In May 2011, an informal hearing was held before a decision review officer (DRO); a summary of the hearing is in the record. In August 2016, a Travel Board hearing was held before the undersigned; a transcript is in the record. An August 2017 Board decision denied service connection for neck, low back, and right wrist disabilities. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a July 2018 Joint Motion for Remand (JMR) by the parties. An August 2018 CAVC Order vacated and remanded the matters for compliance with the JMR instructions. A July 2019 Board decision denied service connection for neck and low back disabilities, and remanded entitlement to service connection for a right wrist disability. [The matters of service connection for neck and low back disabilities are no longer before the Board.] Entitlement to service connection for a right wrist disability is denied. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed 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 in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic disabilities (including organic diseases of the nervous system) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period postservice (one year for organic diseases of the nervous system). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology since service. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For a Veteran who engaged in combat with the enemy, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The provisions of 38 U.S.C. § 1154 do not obviate the requirement that a veteran must submit medical evidence of a causal relationship between the current claimed condition and service. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Veteran’s service treatment records (STRs) are silent for complaints, treatment, or diagnoses pertaining to his right wrist. [May 1970 STRs note treatment for a right forearm laceration. A January 1972 rating decision granted service connection for a right forearm scar.] On January 1971 service separation examination, neurologic and upper extremity clinical evaluations were normal; the Veteran signed a statement indicating, “I, [Veteran’s name], state that upon leaving the Army, am in a good state of health.” In June 1971, less than two weeks following separation from service, the Veteran filed a claim seeking service connection for left chest pain, a right arm scar (due to accidental knife cut), a left upper arm shrapnel wound, and bilateral hearing loss. [He did not claim a right wrist orthopedic or neurologic disability.] On December 1971 VA examination, no significant abnormality of the Veteran’s right wrist was noted. Clinical examination of the musculoskeletal system showed a left elbow scar, right forearm scar due to accidental knife wound, and an “ancient” appendectomy scar; a right wrist condition was not noted (or reported). In December 2008, VA received the Veteran’s claim seeking service connection for a right wrist condition. A September 2009 VA treatment record notes the Veteran has problems (described as chronic, and as on and off) with his knees, neck, lumbar spine, and right wrist. A September 2009 VA physician’s statement notes that the Veteran reported that he fell many times during his tour in Vietnam and that he has developed chronic joint problems, including in the right wrist. He noted that the Veteran “never reported these injuries at the time.” He concluded, “It certainly is possible that the present problems with these areas now are related to his tour in Vietnam.” In a March 2010 statement, the same VA physician noted the Veteran’s reports of falling and carrying heavy gear, “R[ight] wrist problems while in Vietnam,” and noted that the Veteran reportedly “brought this several times to the attention of the doctors in the military.” He noted the Veteran’s report that the pain persisted since service and through today. He again concluded, “It certainly is possible that the present problems with these areas now are related to his tour in Vietnam.” A May 2011 DRO informal hearing summary notes the Veteran’s contention that his right wrist disability is related to carrying heavy equipment and falling a lot in service. He reported that he self-treated/self-medicated. Lay statements from the Veteran’s spouse and brother were received in May 2012. His spouse reported that he complained of right wrist pain since a “really hard” fall in Vietnam, and that “his wrist hasn’t been the same since then.” His brother reported that, upon return from service, the Veteran could not do a lot of lifting due to back and hand pain, and that “a few years later…he finally told me the truth that he got hurt in Nam and hasn’t felt the same since.” On June 2012 VA wrist examination, the Veteran reported that he sustained multiple falls in service. He reported that he believed he mentioned that he had wrist pain to medics in service; he denied in-service treatment for a specific injury, such as a fracture. He reported current intermittent dorsal wrist/distal forearm pain, on average three days a week. He reported employment as an optician and that he experiences “pain when twisting things at work”; he tries to use his left hand when possible. Right wrist and forearm x-rays showed there was no fracture or dislocation; “small cystic changes distal right ulna likely degenerative”; no effusion, joint spaces preserved.” The diagnosis was right wrist tendinitis. The examiner, an orthopedic physician, opined it less likely than not (less than 50% probability) that the Veteran’s right wrist disability was incurred in or caused by the claimed in-service event. He explained: There is no history of a significant injury to the wrist, such as a fracture, which would have required casting. There is no x-ray evidence of residuals of an unrecognized fracture or carpal instability. Extensor carpi ulnaris tendinitis is not uncommon in the general population. It is generally related to an overuse syndrome rather than a traumatic condition[.] This cannot be attributed to repeated falls which occurred 40 years ago. At his August 2016 Board hearing, the Veteran testified that he sought medical treatment for his wrist in service, and was returned to the field with pain medication. He stated that he believes his wrist injury began in service and that it has persisted since. He denied any postservice injuries. An August 2017 Board decision, in relevant part, denied service connection for a right wrist disability. In the July 2018 JMR, the parties agreed that remand was warranted for clarification of the June 2012 VA opinion, or an addendum opinion, as the June 2012 opinion “only mentioned falling in his rationale” and “did not provide an opinion as to whether [his] right wrist disorder is related to his carrying heavy equipment during service.” The parties agreed that remand was warranted to address “this second possible in-service cause,” i.e., the theory pertaining to carrying heavy equipment. [In July 2019, the Board remanded the claim for additional development consistent with the JMR.] An August 2018 VA treatment record notes the Veteran’s report of wrist problems during and after service; he reported falling in Vietnam while carrying heavy weight. [Other treatment records note complaints of right wrist pain, but do not discuss the likely etiology of such. See July 2018, November 2018, and March 2019 VA treatment records.] On December 2019 VA wrist examination, the Veteran reported a history of “consistently falling, probably on [his] right wrist (outstretched hand) on muddy surfaces in the mountains” while carrying his pack and ammunition. He reported that he saw medics in service, but they “didn’t do a good job.” He reported postservice wrist pain when attempting to give his children a ride on his back while on his hands and knees. He also reported working “in optical” and “repetitively pulling down a level on a lens stabilizing machine.” The examiner declined to provide an etiology opinion as he was unable to locate a copy of a June 2012 VA wrist examination report. In September 2020, a VA (fee basis) examiner reviewed the record, including the June 2012 wrist examination report, and opined that the Veteran’s current right wrist disability is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. She noted that the Veteran’s STRs (including entrance and separation examination reports) are silent for right wrist complaints, diagnosis, and treatment (while noting he was “seen by medical multiple times during [active duty] period”). She noted a 1970 STR regarding a right forearm laceration, but observed that there were no complaints of falling or regarding the wrist. She explained that there is “no medical evidence [V]eteran injured right wrist from multiple falls or carrying heavy equipment – while [V]eteran can report symptoms they cannot ascribe a diagnosis to those symptoms.” She also acknowledged the symptoms reported in lay statements of record but explained that a medical diagnosis cannot be made by lay people. She stated, “There is no medical evidence provided that supports the [Veteran’s] right wrist tendinitis was due to military service to include multiple stated falls or carrying heavy equipment. It is more likely due to his civilian occupation where he repetitively used his right wrist on a lens machine and general wear and tear from age.” She cited to a Mayo Clinic article in explaining that, while tendinitis can be caused by a sudden injury, it is “much more likely to stem from the repetition of a particular movement over time. Most people develop tendinitis because their jobs or hobbies involve repetitive motions, which put stress on the tendons.” In a February 2021 Informal Hearing Presentation (IHP), the Veteran’s representative argues that the September 2020 examination was inadequate as the “opinion was based on larger part on the lack of findings in the STRs.” The statement cites to Dalton v. Nicholson, 21 Vet. App. 23 (2007), to argue that examiners cannot rely on the lack of findings in the STRs to render a negative opinion as doing so ignores lay evidence. Analysis It is not in dispute that the Veteran has a right wrist disability, as right wrist tendinitis was diagnosed on June 2012 VA examination. As he served in combat (and is entitled to consideration of his claim under the relaxed evidentiary standards provided in 38 U.S.C. § 1154), it may reasonably be conceded for the purposes of this decision that, during service in the field, he experienced some falls and carried heavy equipment. However, the provisions of 38 U.S.C. § 1154 do not obviate the requirement that there must be competent evidence of a causal relationship between his current right wrist disability and service. So, what remains for consideration is whether his current right wrist disability (tendonitis) is etiologically related to his service/the alleged causal factors therein. As noted above, the Veteran’s STRs are silent for complaints, treatment, or diagnoses pertaining to the right wrist. On January 1971 service separation examination, neurologic and upper extremity clinical evaluations were normal; in a signed statement he indicated, “I…am in a good state of health.” Consequently, while based on the Veteran’s accounts and his service in combat it may be readily conceded that he had multiple falls in service and carried heavy equipment, as such are consistent with the circumstances of his service, the evidence not support that any such injury or repetitive activity resulted in an acute wrist condition such as a fracture (which would have required casting or splinting), nor is it so alleged. A chronic right wrist disability in service is not shown. Within weeks following separation from service, the Veteran filed a claim seeking service connection for left chest pain, a right forearm scar (due to knife accident), a left upper arm shrapnel wound, and bilateral hearing loss; he did not claim/report a right wrist disability, and a right wrist abnormality was not found on December 1971 VA examination. As arthritis of the right wrist was not manifested in service or in the first postservice year, such disability may not be presumed to be service-connected (as a chronic disease under 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(a)). While service connection for the right wrist disability may be established by showing continuity of symptomatology, the earliest clinical notation of such pathology in the record is in 2009 (more than three decades after his separation from service). The continuity theory of entitlement applies to diseases listed in 38 C.F.R. § 3.309(a), which include arthritis, but tendonitis is not listed therein. Arthritis of the right wrist has not been diagnosed, and the continuity theory of entitlement (under 38 C.F.R. § 3.303(b) does not have applicability in this matter. While the Veteran and other laypersons (such as his spouse or brother) are competent to report and describe remote complaints of wrist/hand pain, they are not competent to establish by their own observations that the reported pain in the remote past reflected that he has had arthritis ever since service, as the diagnosis of arthritis is a medical question that requires medical expertise (informed by diagnostic studies such as X-rays). In the absence of evidence of a chronic right wrist disability in service, manifestation of right wrist arthritis in the first postservice year, or evidence of continuity of right wrist arthritis complaints since service, the etiology of right wrist disability such as tendonitis first clinically documented more than 30 years after separation from service is a medical question. The preponderance of the competent (medical) evidence is against a finding that the Veteran’s current right wrist disability is etiologically related to his active service, to include as due to reported falls and activities such as carrying heavy equipment therein. The Board finds the opinion offered on September 2020 VA (fee basis) wrist examination (which is consistent with and supported by the opinion on June 2012 VA wrist examination, at least to the extent that the examiners considered the Veteran’s reported falls in service) to be the most probative evidence on the dispositive question of a nexus between the current right wrist disability and the Veteran’s service. The opinion (against the Veteran’s claim) reflects familiarity with the record/the Veteran’s medical history, reflects consideration of the Veteran’s reported in-service falls and carrying of heavy equipment (as required by the parties to the JMR), includes rationale that cites to accurate factual data and medical literature, and identifies a more likely etiology for the disability (namely repetitive action trauma in his postservice occupation). The Board acknowledges the representative’s February 2021 argument but finds that the September 2020 medical opinion was not inadequate under Dalton. The examiner did not impermissibly ignore the lay statements of record. Rather, she specifically acknowledged the reports of “multiple falls” and “carrying heavy equipment” in service. She also specifically acknowledged the lay reports of wrist pain both in service and postservice. She ultimately opined that the Veteran’s right wrist disability is likely due to an alternate (postservice employment) etiology, citing to the clinical record and medical treatise evidence that support such conclusion. The Board also acknowledges the September 2009 and March 2010 medical statements in support of the claim, but finds them conclusory as they do not reflect familiarity with the entire record or include adequate explanation of rationale, are based entirely on the Veteran’s reports, do not account for evidence that weighs against the claim, and do not reflect adequate consideration of other possible etiological factors for the development of his current right wrist disability (such as his postservice occupation or the aging process). Furthermore, the conclusions are stated in speculative form, i.e., that “It certainly is possible” (emphasis added) that his right wrist problem is related to falling in service, rather than in terms of the “at least as likely as not” standard of proof needed to support a claim. Accordingly, those opinions merit considerably less probative value. Sklar v. Brown, 5 Vet. App. 140, 146 (1993). The preponderance of the evidence is against a finding that the Veteran’s current right wrist disability is etiologically related to his service. Therefore, the benefit of the doubt doctrine does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.