Citation Nr: 21015562 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-03 604 DATE: March 17, 2021 ORDER Entitlement to service connection for left wrist disability is denied. Entitlement to service connection for left thumb/hand disability is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosed left wrist disability that originated in service, within a year of service, or otherwise etiologically related to his active service. 2. The Veteran does not have a diagnosed left thumb/hand disability that originated in service, within a year of service, or otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for left wrist disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for left thumb/hand disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to November 1966, with additional service in the Minnesota Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs Regional Office (RO). In September 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In December 2019, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain service treatment records (STRs), service personnel records, and private treatment records from St. Gabriel’s Hospital. With regard to STRs and service personnel records, in June 2020, VA issued a memorandum noting the unavailability of Army National Guard treatment records from 1980 to 1984. Specifically, VA noted that in December 2019, the National Personnel Records Center (NPRC) was contacted, but that all available records had been previously uploaded. VA also noted that in December 2015, the Minnesota National Guard had emailed all available records, and that a review of those records did not reveal any from 1980 to 1984, and that the Veteran had been notified of that finding in a December 2015 letter. A review of the December 2015 email correspondence shows that all existing STRs were provided to VA. As all existing documents in the possession of the contacted entities have been provided to VA, the Board finds that VA has fulfilled its duty to obtain all outstanding STRs and service personnel records. With regard to the private treatment records, in a December 2019 VA letter, the Veteran was asked to complete and return enclosed VA Forms 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA). However, a review of the claims file shows that the Veteran did not submit the requested forms in order to obtain any identified private treatment records. VA’s duty to assist in developing the facts and evidence pertinent to his claim - including obtaining private treatment records - is not a one-way street, and it is his responsibility to work with VA with regard to development. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that any further attempt to request the Veteran’s private treatment records would be a waste of VA resources. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Lay evidence presented by an Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Wrist and Hand/Thumb Disability The Veteran seeks entitlement to service connection for a left wrist and thumb/hand disability. Specifically, the Veteran asserts that he developed a left wrist and thumb/hand nerve condition in the line of duty due to a knife injury that occurred while cutting cheese. See February 2016 Notice of Disagreement and September 2019 Board Hearing Transcript. Active military, naval, or air service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (c), (d). Active Duty for Training (ACDUTRA) includes full-time duty performed for training purposes by members of the National Guard, under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(c)(3). Service connection may be granted for injury or disease incurred while on ACDUTRA. 38 U.S.C. § 101(24). INACDUTRA is defined as duty (other than full-time duty) under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23). Service connection may be granted for injuries incurred while on INACDUTRA, but not for disease. 38 U.S.C. § 101(24). The evidence of record includes a January 1980 Army National Guard enlistment examination noting normal upper extremities. A scar on the Veteran’s penis was noted from a prior injury. No left arm condition was noted. An October 1980 Senior Enlisted Evaluation Report shows the Veteran’s principal duty was first cook, and that he prepared and cooked food, or supervised small unit food services. A January 1983 Enlisted Evaluation Report shows the Veteran’s principal duty title was Food Service Sergeant. The evidence of record also includes a January 2004 private medical record noting a past medical history for bilateral rotator cuff injuries with repairs. See Private Treatment Records Received January 2015. In October 2007, the Veteran reported that he was standing on his deck when his legs gave out resulting in a fall. He stated that he lost all sensation in his legs. He denied any upper extremity weakness. The physician did note worsening chronic bilateral shoulder pain. Another October 2007 private medical record noted chronic shoulder pain. Strength was noted as normal for all extremities, including biceps. In February 2008, a private medical record noted scars located over the sternum, medial side of the bilateral lower extremities, and over the left wrist. See Private Treatment Records Received January 2015. The Veteran was seen for chronic shoulder pain in July 2010. The Veteran reported a work related injury in 1996, and that he has had problems with shoulder pain since that time. The physician noted that the Veteran continued to struggle with bilateral shoulder pain and was very guarded when using his arms. He was diagnosed with bilateral acromioclavicular joint degeneration. See Private Treatment Records Received January 2015. An October 2014 private medical record noted chronic bilateral shoulder pain dating back to 1996, at which time the Veteran sustained a bilateral rotator cuff tear. It was noted that the Veteran had undergone two rotator cuff repair surgeries, and that he had had subsequent decreased ROM and increased pain since that time. It was noted that the Veteran could only lift very light weights. An upper extremity evaluation noted decreased bilateral shoulder ROM. Grip strength was normal. Grip strength was also noted as normal in December 2014. See Private Treatment Records Received November 2016. In his December 2014 claim, the Veteran asserted that he developed a left hand and wrist condition in approximately 1984/1985. In February 2015, a VA medical record shows the Veteran reported that he initially injured one shoulder, had surgery, and then injured the second shoulder while recovering. He also reported re-injuring his shoulders and undergoing further surgery. See VA Treatment Records Received November 2016. The Veteran submitted his VA Form 9, Substantive Appeal, in January 2017, and attached a September 1980 outpatient and emergency room record from St. Gabriel’s Hospital. A review of that record noted a laceration of the left forearm, and further noting that the Veteran reported he was cut with a knife while cutting cheese. The wound was cleaned and treated with a Steri-strip. The Board notes that the record is somewhat illegible, but that “National Guard” is noted on the record. In March 2019, a VA medical record shows the Veteran reported an increase in left shoulder pain for the past day which felt like a pinched nerve. The Veteran reported that left shoulder pain radiated down into his left hand. He denied any injury. He was assessed with chronic shoulder pain status post multiple bilateral shoulder surgeries. Another March 2019 VA medical record shows the Veteran reported no known cause or injury to his left shoulder/arm. See VA Treatment Records Received April 2020. A June 2019 VA medical record noted a 20 year history for bilateral shoulder pain and that the Veteran had undergone two rotator cuff repair surgeries. See VA Treatment Records Received October 2019. At a September 2019 Board hearing, the Veteran testified that during his Army National Guard service, in injured his left wrist and left hand in September 1980 when a knife went into his wrist while cutting a block of cheese. At the time of the injury, the Veteran reported being treated by a doctor who told him nothing could be done without causing further damage. Current symptoms reported including having a hard time picking-up objects and holding on to them, or carrying objects without dropping them. In addition, the Veteran reported that his left hand became cold and his fingers locked up. The Veteran stated he was not currently being treated for a hand or wrist condition. In September 2020, the Veteran underwent VA wrist and hand/finger examinations. With regard to the wrist, the examiner noted that the Veteran did not have a left wrist condition because he did not have any findings, signs or symptoms to support any such diagnosis. The Veteran reported accidentally striking his left wrist/hand with a knife blade while cutting cheese. At the time of the accident, the Veteran reported symptoms of nerve damage affecting his wrist and thumb, and that he was treated with a few stitches at that time at St. Gabriel’s Hospital. He also stated that at that time, he was told he had nerve damage and would never have full use of his left hand again. He denied any subsequent treatment, surgery or EMG study. The Veteran also reported that, at times, he could not open his left hand because his fingers froze causing him to drop items and tools. He currently reported flare-ups which occurred when holding weighted objects or steering wheels, with episodes lasting less than 5 minutes during which he would “pop his fingers open.” The Veteran further reported treatment for a bilateral shoulder condition which helped his left wrist and hand. He denied any symptoms of left hand numbness or tingling. Left wrist ROM testing was normal with no pain elicited, and no objective evidence of localized tenderness or pain to palpation. The examiner did note objective evidence of crepitus. Pain, weakness, fatigability or incoordination were not found to significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal. No other pertinent physical findings, complications, conditions, signs or symptoms were found. The examiner also noted that the Veteran did not have any related scars. With regard to the hand/finger, the examiner noted that the Veteran did not have a left hand or finger condition because he did not have any findings, signs or symptoms to support any such diagnosis. Following his reported in-service injury, the Veteran stated that he did not undergo any further treatment, but that he could not button his pants. The Veteran also reported flare-ups which occurred when holding weighted objects or steering wheels, with episodes lasting less than 5 minutes during which he would “pop his fingers open.” The examiner noted that the evidence did not show an event, disease or injury during service, or STRs containing complaints, treatment or a diagnosis for a hand or finger condition. Left hand ROM testing was normal with no gaps found between the pad of the thumb and fingers, or between the index and long finger. The examiner also noted no pain elicited upon examination and no objective evidence of localized tenderness or pain on palpation. Pain, weakness, fatigability or incoordination were not found to significantly limit functional ability with repeated use over a period of time or during a flare-up. Muscle strength testing was normal. No other pertinent physical findings, complications, conditions, signs or symptoms were found. The examiner also noted that the Veteran did not have any related scars. The examiner opined that it was “less likely than not (less than 50 percent probability)” that the Veteran had a left wrist or a left hand/thumb disability that was directly related to service. In support of this opinion, the examiner noted that any medical opinion was moot as the Veteran did not have a current condition. In this regard, the examiner noted that the Veteran was not experiencing tenderness or having any numbness during the physical examination. The examiner also noted that the Veteran had no recollection of the exact date when he was stabbed with a knife. An examination was noted to reveal strong hand strength with hand strength equal bilaterally, and that there were no neurological findings upon examination. Additionally, the examiner found no left arm scar. ROM was also noted as normal for the bilateral wrist and hand, and Tinel’s testing for CTS was negative. The Veteran was found able to function and work in daily activities without difficulty. Therefore, the examiner found no current pathology of a left wrist or left thumb/hand condition. After a review of the evidence of record, the Board finds that entitlement to service connection for a left wrist or thumb/hand condition is not warranted as the Veteran has not been shown to have any such diagnosed condition. In this regard, the Board finds the September 2020 VA wrist and hand/finger examination reports the most probative evidence of record. The examiner considered the Veteran’s lay statements as to sustaining nerve damage as a result of a knife injury. However, after a physical examination and review of the Veteran’s medical records, the examiner determined that the Veteran did not have any diagnosed left wrist or thumb/hand condition, including negative findings for pain, weakness, fatigability or incoordination, normal muscle strength testing, and negative Tinel’s testing for CTS. The Board finds that the VA examiner’s medical opinions are supported by the medical evidence of record, which does not show any complaints or treatment related to a left wrist or thumb/hand condition. Instead, the medical records show ongoing treatment related for residuals related to a 1996 post-service work related bilateral shoulder injury. Medical records also show that the bilateral shoulder condition has worsened over time, with the Veteran initially denying any upper extremity weakness in October 2007, to being very guarded when using his arms in July 2010, and only being only able to lift very light objects by October 2014. Despite those findings, private treatment records document normal grip strength during this time period. In March 2019, the Veteran first reported left shoulder pain that radiated down into his left hand. While the Board does acknowledge the Veteran’s lay statements that he sustained nerve damage as a result of a knife injury in the 1980, he has provided conflicting statements with regard to that injury. For instance, in his December 2014 claim, he reported that he injured his left hand and wrist in approximately 1984/1985. However, he later submitted a private treatment record for a left arm laceration dating from 1980. Additionally, while the Veteran reported that his knife wound was treated with a few stitches, a review of the 1980 treatment record shows his laceration was instead treated with Steri-strips. Additionally, while the Veteran reported that he was told he had permanent nerve damage at that time, neither a review of that record, or any subsequent medical record notes any such left arm nerve condition. Accordingly, the Board finds the Veteran to be an unreliable historian, and provides his lay statements little probative evidence. The Board is cognizant of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “‘disability’ pursuant to 38 U.S.C. § 1110 refers to the functional impairment of earning capacity” and “pain in the absence of a presently-diagnosed condition can cause functional impairment,” en route to its conclusion that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” However, the September 2020 VA examiner found that with regard to the Veteran’s left arm, he was able to function and work in daily activities without difficulty. Accordingly, in the present case, the Board finds that the Veteran’s complaints of left wrist and left thumb/hand symptoms alone do not qualify as a current disability. For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, absent a finding for a current left wrist and/or thumb/hand diagnosis, and in the absence of symptoms resulting in functional impairment, the Board finds that the first Shedden requirement has not been met and the probative evidence is against the Veteran’s claim for service connection. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claims for service connection for a left wrist and/or left thumb/hand disability. The claims are denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.