Citation Nr: 21027392 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 09-68 577A DATE: May 5, 2021 ORDER Service connection for right wrist/hand arthritis is granted. FINDING OF FACT The Veteran's current right wrist/hand arthritis is of service origin. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right wrist/hand arthritis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113,1131, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from April 1969 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in Phoenix, Arizona. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in September 2016. A transcript of the hearing is of record. In December 2016, the Board remanded this matter for further development. In October 2017, the Board denied service connection for arthritis of the right wrist. Thereafter, the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a March 2019 decision, the Court vacated the denial and remanded the matter to the Board for actions consistent with the memorandum decision. In August 2019, the Board remanded this matter for further development, to include performing a VA examination. The Board once again remanded this matter for further development in April 2020 and November 2020. The requested development has been completed and the matter is now ready for appellate review. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection may be granted for any disease 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) (2020). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Degenerative joint disease, or osteoarthritis, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2020). Where a veteran served ninety days or more of active service, and certain chronic diseases, such arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.§§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A review of the Veteran's service treatment records reveals that there was documentation during military service of a contusion to the right wrist in August 1971 and a traumatic event to the right hand 5th digit in October 1971. At the time of the Veteran's December 1972 service separation examination, normal findings were reported for the upper extremities. On his December 1972 service separation report of medical history, the Veteran did not report any complaints and there were no findings of arthritis. While the Veteran sustained a trauma to the right hand in January 1973, x-rays taken at that time were normal. Private treatment records documented mild degenerative changes at the thumb carpometacarpal articulation in April 2006 and X-rays confirmed degenerative arthritis of the right wrist in February 2008. Following a January 2020 VA examination, the examiner rendered the following opinion: The condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that after the military, the Veteran reported he was employed as a factory worker, janitor, correctional officer and security officer until 2008. The Veteran denied any surgery to his wrists or hands. The examiner noted that hand arthritis was first diagnosed at Phoenix VAMC (2015 right hand x-ray). The examiner observed that the record showed the Veteran received care intermittently at Phoenix VAMC from 1999 to 2012, complaint of wrist or hand pain was not found in VA PCP notes 1999-2012, degenerative changes of the neck and knees were noted on x-rays in 2012 at 65 years of age. The examiner indicated that the Veteran's contusion (bruise) above his right wrist in 1971, by definition, was an acute, not chronic condition. Additionally, an acute bruise was not related to, or a known cause of arthritis. He indicated that arthritis was unrelated and not caused or aggravated by a cyst or carpel tunnel syndrome per medical literature search. The etiology of arthritis in the hand/wrist of a Veteran greater than 40 years old without significant trauma or surgery was degenerative changes of aging. The finding of arthritis in the right hand was an expected age-related finding in a Veteran in his late 60s. The Veteran's age-related degenerative arthritis of his right hand/wrist was unrelated to his period of service greater than 45 years ago. The Veteran had a diagnosis of degenerative arthritis of the right hand/wrist that was less likely than not related to his period of service, incurred in or caused by injury in 1971 during service. The examiner further indicated that the condition claimed was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner stated that after the military, the Veteran reported he was employed as a factory worker, janitor, correctional officer and security officer until 2008. He denied any surgery to his wrists or hands. Hand arthritis, as reported by the Veteran, was first diagnosed in 2015. Records showed the Veteran received care intermittently at Phoenix VAMC from 1999 to 2012, complaint of wrist or hand pain was not found in VA PCP notes 1999-2012, degenerative changes of the neck and knees were noted on x-rays in 2012 at 65 years of age. He noted that arthritis was unrelated and not caused or aggravated by a cyst or carpal tunnel syndrome per medical literature search. Carpal tunnel syndrome was caused by nerve entrapment and a cyst was fluid contained in soft tissue. Medical literature did not support either condition as a cause or aggravation of arthritis. The etiology of arthritis in the hand/wrist of a veteran greater than 40 years old without significant trauma or surgery was degenerative changes of aging. The finding of arthritis in the right hand was an expected age-related finding in a veteran in his late 60s. The Veteran's age-related degenerative arthritis of his right hand/wrist was unrelated to his period of service greater than 45 years ago. It was further indicated that it was less likely as not that any right wrist/hand disorder (arthritis in this case) was caused or aggravated by the service-connected carpal tunnel syndrome or right wrist cyst. In its April 2020 remand, the Board observed that the examiner, while noting the findings of mild degenerative changes at the thumb carpometacarpal articulation in April 2006 and X-rays confirming degenerative arthritis of the right wrist in February 2008 in a list of items reviewed, did not address and discuss these findings in the rationale accompanying the opinion. The examiner also did not address the contentions of the Veteran that he had had continuous right wrist/hand problems since service. The Board requested that the examiner, in an addendum opinion, address and discuss the private treatment records documenting mild degenerative changes at the thumb carpometacarpal articulation in April 2006 and X-rays confirming degenerative arthritis of the right wrist in February 2008. The examiner was to also address and discuss any contentions of the Veteran that he had continuous right wrist/hand problems since service. In a July 2020 addendum opinion, the directives of the Board remand were noted, specifically indicating that the examiner had to address and discuss the private treatment records documenting mild degenerative changes at the thumb carpometacarpal articulation in April 2006 and X-rays confirming degenerative arthritis of the right wrist in February 2008. In response, the examiner indicated that based on credible medical evidence, and known facts, a cyst could not and did not cause degenerative changes anywhere, including at the thumb carpometacarpal articulation as seen on X-rays, as not causally related, a different etiology, including, wear and tear and the aging process. As to the directive that the examiner was to address and discuss any contentions of the Veteran that he had continuous right wrist/hand problems since service, the examiner indicated that as above, any employer in the US would require job duties and performance questionnaire at hiring. The Veteran's job duties in post-service employments would require him to use his hands and wrists. The evidence of record showed that he did not have continuous hand/wrist problems at exit. If, and when, he became symptomatic, it was due to his post-service employments. It was noted that some of the Veteran's employments were defined 'heavy' or 'very heavy', not possible for anyone with any kind of wrist/hand/physical problems. In its November 2020 remand, the Board noted that although the examiner supplied opinions with regard to the questions set forth, he did not address and discuss the private treatment records documenting mild degenerative changes at the thumb carpometacarpal articulation in April 2006 or the X-rays confirming degenerative arthritis of the right wrist in February 2008, as was required in the Board directives or by the Court. As to the Veteran's contentions that he had continuous right wrist/hand problems since service, the examiner's answer did not address the Veteran's contentions indicating that he had current wrist problems since service, only noting that the Veteran did not have continuous wrist problems at exit. Furthermore, while the examiner noted the Veteran's job history as the cause of his symptoms, this still did not address the Veteran's contentions. In the November 2020 remand, the Board requested that in an addendum opinion concerning the right wrist disability, the examiner address and discuss the private treatment records documenting mild degenerative changes at the thumb carpometacarpal articulation in April 2006 and X-rays confirming degenerative arthritis of the right wrist in February 2008. The examiner was to also address and discuss any contentions of the Veteran that he had continuous right wrist/hand problems since service. In a January 2021 addendum opinion, the examiner indicated that he had reviewed the private treatment records documenting mild degenerative changes at the thumb carpometacarpal articulation in April 2006 and X-rays confirming degenerative arthritis of the right wrist in February 2008 and agreed with the imaging and mild degenerative changes. As to the Veteran's contentions that he had had continuous right wrist/hand problems since service, the examiner stated that he did not disagree that the Veteran has/had continuous right wrist/hand problems since service. However, as wrist/hand problems were multifactorial, his wrist/hand problems may have been due to a variety of other causes, as there was no credible medical evidence that his asymptomatic ganglion of the right wrist at exit could cause symptoms on the left hand and degenerative changes as seen on imaging. There was no causal relationship. Moreover, the Veteran's assertions were not supported by documented medical evidence. He was gainfully employed for several years, and treatment records were silent for a ganglion cyst/hand/wrist problems, other than the EMG reported compressive neuropathy. The examiner again noted that the etiology of Veteran's right hand/wrist disorder could be multifactorial, e.g., aging, heavy manual work, cumulative trauma disorder/overuse syndrome, carpal tunnel syndrome, degenerative changes (as previously noted: post-military; factory worker, computer wafer factory worker, janitor 1981-1984, 1988-1993, correctional officer and 1994-2008 security officer), alone or in combination. The examiner further indicated that he could state that there was no evidence in the authoritative medical literature that any asymptomatic cyst had ever caused degenerative changes anywhere. The proximate known factors for DJD remained (with or without cyst): aging, smoking, hand use, nutrition, genetic factors, alone or in combination. He reported that it was remarkable that in this Veteran at this age, with several decades of heavy manual work, his imaging only demonstrated mild to moderate degenerative changes, not severe or disfigurement as one would expect. Following a review of the evidence, lay and medical, and resolving reasonable doubt in favor of the Veteran, service connection is warranted for right wrist/hand arthritis. In the current appeal, the Veteran was noted to have had right wrist/hand problems in service, to include having sustained trauma to the hand in 1973. The Veteran has testified as to having had continuous problems with his right wrist/hand since service. The examiner, in his January 2021 addendum opinion, specifically indicated that he did not disagree that the Veteran has/had continuous right wrist/hand problems since service. The examiner also indicated that the etiology of Veteran's right hand/wrist disorder could be multifactorial, with many factors causing the current right wrist/hand arthritis. Given the inservice notations of right wrist and hand problems in service, to include a traumatic injury to the right hand in 1973; the reports and testimony of the Veteran as to having had continuous symptoms since service; the finding of the January 2021 VA examiner that he did not disagree that the Veteran has/had continuous right wrist/hand problems since service; and with the examiner further indicating that the causes of degenerative joint disease were multifactorial; and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current right wrist/hand arthritis had its onset in and related to his period of service. As such, service connection is warranted for right wrist /hand arthritis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Given that the Board is granting service connection for right wrist/hand arthritis on a direct basis, the claim of secondary service connection has been rendered moot. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.