Citation Nr: 22012678 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 16-27 455 DATE: March 4, 2022 ORDER Service connection for residuals of left wrist ganglion cyst is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran has current residuals of a left wrist ganglion cyst that began during service or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for residuals of removal of a left wrist ganglion cyst have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to June 1973. In August 2019, the Veteran testified at a Travel Board hearing at a Department of Veterans Affairs (VA) Regional Office (RO) before the undersigned Veterans Law Judge. Following the hearing, also in August 2019, the Board remanded this matter for further evidentiary development. In January 2021, the Board issued a decision that, in pertinent part, denied service connection for residuals of left wrist ganglion cyst. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and in September 2021 the parties submitted a Joint Motion for Partial Remand (JMPR). In a September 2021 Order, the Court granted the JMPR as it pertained to the service connection issue. The January 2021 Board decision also denied a rating in excess of 10 percent for a left knee strain. However, the Veteran did not challenge that portion of the decision at the Court and the issue was dismissed. Entitlement to service connection for left wrist ganglion cyst The Veteran contends he had a left wrist cyst that started in service, was noted in 1980 at Portsmouth Naval Hospital, and because it continued to increase in size and became more painful, it was later removed by an orthopedic surgeon after his separation from service. At the crux of the Veteran's claim is his contention that he has current residuals resulting from the removal of the cyst, and he believes these residuals should be awarded service connection given that the cyst had its onset in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As noted, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of left wrist ganglion cyst or residuals thereof, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records (STRs) show that in November 1969, the Veteran was treated for a recurrent dorsal ganglion cyst of the left wrist. Postservice VA treatment records note the Veteran's past surgical history of left ganglion cyst removal. However, they are silent for any complaints, findings, treatment or diagnoses related to any residuals stemming from the ganglion cyst or its removal. At the August 2019 Board hearing, the Veteran testified he had no cyst prior to service, that the cyst had an onset during service in the mid-1970s, and that it kept growing and became more painful. He testified the cyst was removed after service, which alleviated the pain and that it healed, but that he could still feel the hole where it was. He also reported decreased range of motion in the left wrist, to the point where his representative described it as ankylosed, and noted that he had problems with grip, grasp, and manipulation. See August 2019 Hearing Transcript. After review of the record, the Board concludes the Veteran does not have a current residual disability related to the left wrist ganglion cyst noted in service and has not had any such disability during the pendency of the claim or recent to the filing of the claim. While he has, throughout his pursuit of a service connection claim, reported having multiple symptoms related to the post-service removal of the cyst, including problems with his grip, grasp, and manipulation, and limited range of motion in the left wrist, all of which he is competent to report considering his medical background as a physician assistant, the weight of the evidence does not support a finding that these reported symptoms have resulted in functional impairment that impacted his employment or his earning capacity. In making the above finding, the Board has expressly considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders, the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that "pain [was] an impairment because it diminishe[d] the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Id. at 1364. The Federal Circuit stated that "a physician's failure to provide a diagnosis for the immediate cause of a veteran's pain [did] not indicate that the pain [could not] be a functional impairment that affect[ed] a veteran's earning capacity," and ultimately concluded that to establish the presence of a disability, a veteran would need to show that his or her pain reached the level of functional impairment of earning capacity. Id. at 1367-68. The Board finds the present case to be readily distinguishable from Saunders, as there is simply no documentation to suggest the Veteran's left wrist ganglion cyst has caused functional impairment of earning capacity. In the September 2021 JMPR, it was noted that the Veteran had testified to having symptoms associated with his ganglion cyst removal and explained how these caused functional impairment because "he [could] no longer hold tools." The JMPR found that the Board, in its January 2021 decision, did not adequately address whether the Veteran was competent to report the functional impact of his condition. In this regard, the parties to the JMPR specifically requested that the Board adequately address whether the Veteran's testimony should be considered competent medical evidence given that he had practiced medicine for over 40 years as a physician assistant. As indicated above, the Board finds that given the Veteran's medical background as a physician assistant, he is competent to report that he has symptoms related to the removal of his ganglion cyst. He is also competent to report the nature and severity of those symptoms. However, those statements, must still be weighed against the remainder of the evidence in the record. As noted by the September 2021 JMPR, the Veteran's VA treatment records document that he retired after being employed as a physician assistant to a urologist for over 40 years. This length of employment suggests that any difficulties the Veteran experienced as a result of the symptoms from his ganglion cyst removal did not result in functional impairment of earning capacity. Similarly, the Veteran's VA treatment records show that in June 2015, after he retired, he reported to his primary care physician that he exercised by doing yard work. He also reported during an August 2014 VA audiological evaluation that he engaged in the recreational activities of shooting, hunting, and woodworking. These activities involve the use of the wrist and are contrary to a finding that the Veteran's symptoms in the left wrist are at a level where he is so functionally impaired that it would affect his earning capacity. The Board acknowledges that at the August 2019 Board hearing, the range of motion in the Veteran's left wrist was described as ankylosed. However, this characterization was made by the Veteran's representative who is not shown to have any medical training, expertise, or background. Rather, the Veteran, who does have a medical background, testified that he had limited range of motion in the left wrist, which suggests he has at least some range of motion, albeit perhaps a very limited one. Regardless, such testimony does not establish that the Veteran's left wrist is immobile and as already discussed, the totality of the evidence does not support a finding that even with very limited range of motion in the left wrist that this resulted in functional impairment of earning capacity. In support of his claim, the Veteran also submitted an excerpt from the Mayo Clinic regarding ganglion cysts and noted that the excerpt stated it was not clear what caused a ganglion cyst to develop. However, this evidence only addresses the causation of ganglion cysts and it is not in dispute that the Veteran was treated for a recurrent dorsal ganglion cyst of the left wrist while he was in service. Instead, the question to be resolved in this case is whether the Veteran has any residuals from that cyst, including the removal of that cyst, that may be considered a current disability to satisfy one of the elements of a service connection claim. The Mayo Clinic article does not speak to this element; therefore, it is not helpful to the Veteran's claim. Finally, the Veteran has not been afforded a VA examination in this matter. This matter was addressed in the Board's January 2021 decision where it was explained the Veteran's claim had been remanded in August 2019 for such to be scheduled, but the Veteran failed to respond to a request to schedule the VA examination, so it was cancelled. While it was also argued at that time that VA had failed in its duty to assist by cancelling the examination request without any further documentation and not making any attempts to reschedule the examination (see September 2020 post-remand brief), the Board disagreed by pointing out the examination request had been cancelled when the Veteran failed to respond to a request to schedule the examination, attempts were made to contact him by telephone to reschedule him, and neither the Veteran nor his representative had provided any specific or pertinent reasons as to why he failed to respond to the request to schedule the VA examination. The Board found then, as it does now, that no duty to assist error has been committed in this matter. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Notably, the September 2021 JMPR did not address the lack of a VA examination in this case and no subsequent argument has been raised in this regard now that the case has been returned to the Board for further adjudication. The Veteran and his representative also still have not provided any good cause for why he failed to respond to the request to schedule a VA examination. In Scott v. McDonald, 789 F.3d 1375 (Fed. Circ. 2015), it was held that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board." Accordingly, the Board finds VA has satisfied its duty to assist in this case. In conclusion, the Veteran does not have a current residual disability related to the left wrist ganglion cyst noted in service and the first element of service connection has not been met. Therefore, service connection for residuals of a left wrist ganglion cyst must be denied. The evidence persuasively favors against the service connection claim; it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.