Citation Nr: 21041580 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-56 003 DATE: July 9, 2021 ORDER Service connection for residuals of a left wrist fracture is granted. FINDINGS OF FACT 1. The Veteran's left wrist is presumed sound on his entrance into military service. 2. The Veteran's left wrist is shown by clear and unmistakable evidence ("CUE") to have pre-existed his military service, as the evidence demonstrates that he had a left wrist fracture and surgical repair prior to active duty military service. 3. CUE does not establish that the Veteran's left wrist disability was not aggravated during military service. 4. The competent and credible evidence shows that residuals of a left wrist fracture were incurred in service. CONCLUSION OF LAW The criteria for service connection a left wrist disability are met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303(a), 3.304(b), 3.306(b). REMANDED 1. Entitlement to an initial evaluation greater than 10 percent for gastroesophageal reflux disease (GERD) is remanded. 2. Entitlement to service connection for a right great toe condition is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2012 to June 2016. The issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board denied service connection for the wrist, granted an initial higher rating of 10 percent for GERD, and remanded the toe issue. In March 2021, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to vacate and remand the portion of the Board's decision that denied service connection for the wrist and a rating in excess of 10 percent for GERD. The issues have now been returned to the Board. 1. Entitlement to service connection for a left wrist disability The Veteran contends that he has residuals of a left wrist fracture that were aggravated by service. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's left wrist disability preexisted his active duty military service from June 2012 to June 2016. The Veteran's enlistment examination is unavailable. Therefore, with respect to a left wrist disability, the presumption of soundness attaches. 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody)). Because the presumption of soundness attaches with respect to this disability, there must be CUE that the disorder both pre-existed service and was not aggravated in service. 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).] CUE in this context is defined as obvious or manifest. 38 C.F.R. § 3.306(b). CUE means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin, 22 Vet. App. at 396. For the first prong, the most competent and credible evidence of record shows that there is CUE that the Veteran's left wrist disability preexisted service. The Veteran's service treatment records document a left wrist fracture with surgery in 2011, the year prior to his entrance to service. The Veteran does not dispute that he fractured his wrist prior to active duty and admits that he had surgery to place a plate and screw in his left wrist prior to service. The first prong is met to rebut the presumption of soundness. Regarding the second prong, the government may show a lack of aggravation by establishing by CUE "that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). An August 2016 VA examiner opined that the left wrist injury was not aggravated beyond its natural progression during service. He stated that pain while doing push-ups is a natural consequence of a fractured wrist with subsequent surgery. The examiner stated that the Veteran "claims he has limited ROM and pain of left wrist due to aggravation in service[;] however[,] see 7/16 C&P exam; he had normal ROM and no tenderness on exam." The examiner also stated there were no visits in surgery for re-injury of left wrist. The Veteran responded to this opinion in his October 2016 VA Form 9. He reports that after the wrist surgery in 2011, but prior to active duty service, he had no pain with push-ups or prolonged wrist activities. After beginning active duty service I began doing more intense training in officer training school and preparing for PT tests that began putting more strain and burden on my left wrist. I began to have pain when doing push ups and performing certain wrist movements with resistance that wasn't present prior to my active service. This pain continues to this day when I perform these movements. I do not and have never had a limited range of motion in my left wrist. I do have pain with resistance at the limits of my range of motion. The examining VA physician only tested my range of motion, but did not test for pain on resistance despite informing him of my symptoms. I did not seek treatment while on active service due to pressure from my squadron and group to get an excellent on my PT tests. I ended up pushing through the pain and didn't bring it up to a military physician until my separation physical in March 2016. See October 2016 VA Form 9. The Veteran then opined, "I believe my left wrist pain was aggravated as a result of my active duty service due to the requirements of training for the PT test. I now have limitations on what I can comfortably do with my left wrist as a result." The Veteran is a dentist and therefore has medical training and expertise that make him competent to provide medical opinions. The Board finds his opinion competent, credible, and probative. The burden is on VA to show by clear and unmistakable evidence that the pre-existing wrist disability was not aggravated by service. The Board does not find that VA has met its burden. The Veteran's competent and credible lay evidence prevents the Board from finding it to be undebatable that there was no aggravation. On the contrary, the Veteran's disability was asymptomatic at entry to service, became symptomatic during service, and did not improve before he reported it at separation. The wrist has continued to be painful with resistance since service, indicating that this aggravation was permanent. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. The Board finds that the Veteran's own opinion is sufficient to establish nexus, as he is trained in medicine and his opinion is competent to show that the residuals of a left wrist fracture were incurred in service. Service connection is granted for residuals of left wrist fracture. REASONS FOR REMAND Entitlement to an initial evaluation greater than 10 percent for GERD The Veteran is currently rated at 10 percent for GERD under Diagnostic Code (DC) 7346. DC 7346 is an analogous rating code, and as such the Veteran is not required to meet all the objective requirements. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). The Board finds that a new examination is necessary in order to address all of the arguments in the JMR and to fully adjudicate this appeal. Entitlement to service connection for a right great toe condition The Veteran asserts the pain in his right great toe is a continuation of pain from his time in service. In July 2016 the Veteran was afforded a VA Examination. There, the examiner noted the Veteran stated the condition had resolved. However, in an October 2016 statement, the Veteran articulated this was an inaccurate representation of his comments, stating he still suffers from pain in his right great toe and that the pain is the same suffered from service. In November 2019, the Board remanded the issue of entitlement to service connection for a right great toe disorder for additional development, and regretfully, there has not been substantial compliance with the Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The November 2019 remand specifically scheduled the Veteran for an examination to determine whether any great right toe disorders were related to his military service; asked the examiner to discuss the Veteran's statement of record regarding any pain he suffers respecting his right great toe; opine if the disorder is more likely, less likely, or at least at likely as not began in or was a result of his service; and specifically address any of the Veteran's lay statements regarding symptomology during service and any continuity of symptomology since discharge and/or since onset. In May 2020 a VA examiner opined the Veteran's right great toe condition was less likely than not related to his service. The examiner further stated the only entry regarding the word "toe" in the Veteran's file of record was from the July 2016 VA Examination and copied and pasted the three sentences of that examination into the record. This ignores all of the Veteran's lay reports in his Notice of Disagreement and VA Form 9 of toe pain beginning in and continuing since service. This opinion is based on an inaccurate factual premise and is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, a remand is required to obtain an adequate opinion with supporting rationale regarding the Veteran's statement of record regarding any pain he suffers respecting his right great toe, if the right great toe disorder is more likely, less likely, or at least as likely as not began in or is otherwise the result of military service, to include any pain noted in service and at his separation examination, to include any Veteran's lay statements regarding symptomology during service and any continuity of symptomology since discharge and/or since onset. The fact that a Veteran's assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") Unfortunately, there has not been substantial compliance with the Board's previous remand directives, and another remand is required for corrective action. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected GERD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. IN ADDITION, the examiner is asked to: (a.) Identify which of the following symptoms have been present at any time since 2016 and caused by the Veteran's GERD: epigastric distress dysphagia pyrosis regurgitation substernal or arm or shoulder pain any other symptoms attributable to GERD (b.) For each symptom identified in step (a.), please indicate whether the symptom is either: Persistently recurrent, causing considerable impairment of health OR Less frequent or severe, causing less severe impairment of health? Please explain the reasoning behind the opinion for each symptom. 2. Obtain an addendum opinion for the Veteran's right great toe. After examination of the Veteran, review of the record, and special attention to the Veteran's lay statements in the Notice of Disagreement and VA Form 9, please answer the following questions. (a.) Indicate all right great toe disorders found to be present at any time since May 2016. The examiner should specifically discuss the Veteran's statements of record regarding any pain he suffers respecting his right great toe. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) The examiner should opine whether any right great toe disabilities found (to include pain causing functional impairment) at least as likely as not (50 percent or greater probability) began in or were otherwise the result of military service, to include any pain noted in service and at his separation examination. (c.) In addressing the above, the examiner should address any of the Veteran's lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset. The examiner should also consider any other pertinent evidence of record, as appropriate. A rationale must be provided to support all opinions. In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.