Citation Nr: 21040383 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-20 509 DATE: July 3, 2021 ORDER Entitlement to service connection for a left wrist disability is denied. Entitlement to service connection for a right wrist disability is denied. FINDINGS OF FACT 1. The Veteran's left wrist disability is not related to service. 2. The Veteran's right wrist disability is not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left wrist disability are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a right wrist disability are not met. 38 U.S.C. §§ 1101, 1110, 5103, 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 July 2009 to March 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in February 2021. The claim was remanded for the RO to afford the Veteran a VA examination. The Veteran attended a VA examination in April 2021. Thus, the Board finds that the RO substantially complied with the February 2021 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. For the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2017). When there is an approximate balance of 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 (West 2017); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for left wrist condition 2. Entitlement to service connection for right wrist condition The Veteran claims he suffers from a bilateral wrist disability related to lifting items in the warehouse while in service. For the reasons discussed below, the Board finds that that the Veteran's left and right wrist disability are not related to service. Therefore, service connection is not warranted. Service treatment records (STRs) for January 2011 reflect complaints of a third and fourth finger left-hand injury. The Veteran reported while moving boxes he jammed the fingers into the bottom of the box. He reported numbness and sharp pain that radiates. He denied tingling. No specific complaints to the left wrist are noted. In August 2011 hand pain was noted as a chronic problem. STRs do not reflect any symptoms, diagnosis, or treatment for a right wrist disability. Post service, a July 2013 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The examiner found the Veteran does not have a current diagnosis related to his left wrist. However, he was diagnosed with chronic strain of the right wrist. The Veteran reported that his right wrist is worse than the left. He has occasional sharp pain in the right wrist, off and on, but the pain on the left side is rare. There was pain or palpation for the right wrist only. No etiology opinion was provided. In June 2018 VA treatment records, the Veteran reported pain in both wrist for the last two months. He described the pain as sharp shooting pain with numbness in his hands. He also complained of numb hands with pain when he types or lifts bags. During a follow up visit, he reported this problem started in 2011 when he was working in a warehouse and logistics. An April 2021 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The examiner also indicated the Veteran's testimony was reviewed. The Veteran denied treatment for the wrist in service although the examiner noted during the Board testimony the Veteran indicated he hurt his wrist in service due to lifting. The Veteran was diagnosed with bilateral carpal tunnel syndrome. The examiner opined it is less likely than not that the left and right wrist carpal tunnel syndrome was incurred in active duty service. It was reasoned, In terms of etiology, he left service in 2012. There was no mention of any suspicion of carpal tunnel until 2018 when he had 2-month history of wrist pain with sharp shooting discomfort. It appears that the current diagnosis of carpal tunnel syndrome began in 2018 based on the medical record. There is nothing to indicate that this was incurred during or caused by his military service ending in 2012. It would be speculative to state otherwise. The examiner noted the Veteran was seen June 29, 2018 at which time he complained of a 2-month history of bilateral wrist pain with sharp shooting pains in the hands and arms that did not respond to a topical analgesic cream. Also, the examiner noted, in the medical note the physician stated that this problem started in 2011 when he was working in a warehouse and logistics. Furthermore, the examiner noted the Veteran does not have a wrist problem, but rather carpal tunnel syndrome for both wrists. With regard to functionality the examiner noted the Veteran is very vague about whether or not this problem is functionally limiting as the examiner received conflicting answers. The examiner found "based on [the] exam[ination] and the vague history, I believe that he would be able to do keyboarding but that he would need an ergonomic keyboard and that he would need rest breaks. Doing intermittent keyboarding would be fine but prolonged keyboarding would likely be problematic." The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran's bilateral carpal tunnel is not related to service. In this regard the Board finds the April 2021 VA opinion probative. In opining the bilateral carpal tunnel was not related to service, the examiner noted "there was no mention of any suspicion of carpal tunnel until 2018 when he had 2-month history of wrist pain with sharp shooting discomfort." There are no contrary competent medical opinions of record, and the VA examiner's opinion is supported by the June 2018 post-service treatment records, where the Veteran reported pain in both wrist for the last two months. This evidence is significant as it is inconsistent with the Veteran's reports to a medical examiner while seeking treatment. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (in analyzing credibility, the Board is justified in taking into account multiple factors, including lack of contemporaneous medical evidence, possible bias, and inconsistencies within the record); Pond v. West, 12 Vet. App. 341, 345 (1999) (while the Board is not free to ignore a claimant's assertion as to any matter on which he is competent to offer an opinion, it may properly consider the personal interest a claimant has in his or her own case). Likewise, for the same reason the Board finds the preponderance of the evidence demonstrates that symptoms of the bilateral wrist disability has not been continuous or recurrent since separation from active service in March 2012. The Board acknowledges the Veteran's June 2018 follow up statement to the medical professional indicating the wrist condition began in service, specifically 2011. However, the Board finds this statement is in direct contradiction with the contemporaneous medical evidence. As noted above, the Veteran never complained of either wrist in service, just the left hand. The Board finds had an injury to both wrists had actually occurred the Veteran would have complained of it, as the STR's reflects a complaint to the left hand and fingers specifically, consistent with warehouse accident the Veteran has mentioned. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803 (7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). Furthermore, the Veteran has provided inconsistent statements as it relates to this alleged in-service injury. During the March 2019 Board hearing he testified to the wrist injuries originating in service while lifting in the warehouse. However, during the April 2021 VA examination he denied an injury in service. Indeed, the STR's refect a left hand and finger injury but nothing for the wrist and nothing for the right side. As such, the Board finds the alleged in- service injury not credible. See Buchanan, 451 F.3d at 1336. The memory fades and becomes more imperfect with the passage of time, while the documented reports more accurately reflect what actually happened. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). Summarily, the Board finds the contemporaneous medical records more credible that the Veteran's later assertion of an issue since service. The Board acknowledges the June 2021 Written Brief Presentation where the Representative argued the April 2021 VA examiner failed to review the Veteran's sworn testimony indicating his symptoms date back to his service. However, this is incorrect. The April 2021 VA examiner specifically noted the Veteran's testimony was reviewed. Notably, in the rationale the examiner acknowledged the Veteran denied treatment for the wrist in service although the testimony before the Board reflects testimony confirming the Veteran hurt his wrist in service due to lifting. As such the Board finds this argument is inconsistent with the evidence. Accordingly, service connection for a left and right wrist disability, specifically bilateral carpal tunnel syndrome, is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§ 5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jackman, 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.