Citation Nr: 22016085 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-21 639 DATE: March 21, 2022 ORDER Entitlement to service connection for a right wrist condition is denied. Entitlement to service connection for a left wrist condition is denied. REMANDED Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for pulmonary hypertension, to include as secondary to sleep apnea, is remanded. FINDINGS OF FACT 1. The evidence persuasively establishes the Veteran's right wrist condition was not present until more than one year following his discharge from service and is not etiologically related to his active service. 2. The evidence persuasively establishes the Veteran's left wrist condition was not present until more than one year following his discharge from service and is not etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a right wrist condition have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 2. The criteria for establishing entitlement to service connection for a left wrist condition have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1961 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision from a Department of Veteran's Affairs (VA) Regional Office (RO). In July 2020, the Board denied the above claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Remand and returned the appeal to the Board for action consistent with the Joint Motion for Remand. When this case was last before the Board in September 2021, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with VA medical opinions which opined on the etiology of his claimed disabilities. With regard to the Veteran's claimed wrist disabilities, appropriate medical opinions were obtained. As such, regarding the wrist claims, the Board finds that the AOJ substantially complied with the directives in the September 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the weight of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Bilateral Wrist Conditions At the outset, the Board notes that the essential facts of the Veteran's claims for entitlement to service connection for a left wrist condition and a right wrist condition are essentially identical. In addition, the resolution of these claims involves the application of identical law to similar facts. As such, in the interest of judicial economy these issues will be addressed together. The Veteran is seeking service connection for bilateral wrist conditions which he claims are etiologically related to his active-duty service. Specifically, the Veteran indicated that he believes his current right wrist injury stemmed from a skiing accident while he was in service, and his left wrist injury came from an injury where he slipped in the bath. The Board notes that the Veteran has current diagnoses of bilateral wrist pain, right wrist arthritis, and right wrist scapholunate advanced collapse. See December 2019 VA Wrist Conditions examination, November 2021 VA Wrist Condition examination. Therefore, the central issues that must be resolved are whether the Veteran's current disabilities originated in service or are otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Veteran has currently diagnosed disabilities, competent medical evidence of record does not support that these disabilities were incurred in service or otherwise related to service. The Veteran's service treatment records (STRs) contain no complaints, treatment, or diagnoses of any wrist disabilities. The Board specifically notes a February 1971 treatment record indicating the Veteran hit his head on a towel rack in the bathroom with a laceration to the left side of his head, though no wrist injury or pain in the wrist is documented. There is no reference in the Veteran's STRs to a skiing accident. The Veteran underwent a November 1981 retirement examination, during which a clinical evaluation yielded normal results on all relevant systems, and there were no diagnoses or symptoms of right or left wrist disabilities. Additionally, the examiner indicated each of the aspects of the Veteran's PUHLES profile was scored a "1." The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In the Notes section of the report (section number 73), the examiner indicated that the Veteran underwent periodontal work, the Veteran needed to begin wearing eyeglasses, his pre-service tonsillectomy (at age 5) and appendectomy (at age 10), the presence of bilateral hearing loss, a positive tuberculosis test in 1969 with a chest x-ray within normal limits, a left heel bone spur, and sinusitis. It is reasonable to conclude given the extent and detail of the examiner's notes that, if the Veteran were experiencing a right or left wrist disability at the time of the retirement examination, they would have been included in the examination report. Significantly, in a November 1981 retirement report of medical history (a form that the Veteran fills out with the exception of section 25, which is completed by the examiner), the Veteran did not mention a wrist disability or symptoms thereof. The Veteran specifically denied swollen or painful joints. The Board finds that the Veteran's service treatment records are more probative than the Veteran's current assertions. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a veteran). There are no treatment records for this condition while the Veteran was in service, and no medical examiner has given an opinion linking the Veteran's current disabilities to his active-duty service. Further, the Board notes that the earliest documented diagnosis of a bilateral wrist condition was in an 2008 medical treatment record from Vail Summit Orthopedics wherein it was noted that the Veteran was experiencing numbness and tingling in his bilateral wrists which had been ongoing for 4 to 15 years. Taking the most favorable account, that would mean that the Veteran's first wrist diagnosis would have been in 1993, approximately 11 years after the Veteran left active duty. In response to the Board's February 2019 Remand, the RO provided the Veteran with a December 2019 VA Wrist Conditions examination. The examiner opined that it is less likely than not (less than a 50 percent probability) that the Veteran's bilateral wrist conditions were etiologically related to his active-duty service. The rationale provided was inadequate, as noted in the June 2021 Joint Motion for Remand (JMR) granted by the Court of Appeals for Veteran's Claims, andin response to the JMRthe Board again remanded the Veteran's claims in September 2021. In response to the Board remand, the Veteran was provided with a November 2021 VA Wrist Conditions examination. The examiner opined that the Veteran's currently diagnosed conditions were less likely than not (less than a 50 percent probability) etiologically related to the Veteran's active service. The examiner further opined that it was less likely than not that the Veteran's wrist disabilities manifested within one year of his active-duty service. The rationale provided was that there was no objective evidence of any wrist disabilities or pain during the Veteran's active-duty service, or within a year of leaving service. The examiner noted the Veteran's reports of injuring himself in-service during a skiing accident, slipping in the bathroom while in service, suspecting he strained his wrists, and not following up with a clinic regarding the injuries. The examiner continued that while there is evidence that the Veteran injured himself in a bathroom in 1971, the only documented injury was a laceration on his head from hitting a towel rack, no wrist injury or pain was reported. Further, the examiner noted the Veteran's reports from Vail Summit Orthopedics wherein the Veteran denied any history of trauma or fracture to his wrists. Instead, the Veteran was being seen for what ultimately was diagnosed as Charcot-Mane-Tooth which is an inherited disorder with no relation to wrist trauma or nerve damage. Additionally, the examiner noted that the Veteran was first diagnosed with right wrist arthritis in 2009 after an x-ray. The examiner acknowledged that the x-ray showed "old scapholunate dissociation Kienbock of the lunate," but opined that there is no evidence that this injury occurred in service or within a year of service. The Board has considered the evidence of record. The Board notes that the VA examiners are medical professionals, competent to opine on the nature and etiology of the Veteran's claimed disabilities. Moreover, the examiners provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. While the earlier VA examinations were not competent for adjudication purposes the Board affords the November 2021 medical opinion, significant probative weight. The Board has weighed the medical evidence, against the Veteran's lay contentions that his wrist disabilities are due to service. While the Veteran is competent to testify as to his symptoms, he is not competent to provide a medical opinion as to the etiology of the disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds the November 2021 medical opinion, which opined against a link between his diagnosed disabilities and service, to be of high probative value. Additionally, the Board notes that the Veteran was not diagnosed with any wrist conditions until many years after he left active-duty service. Additionally, the Board notes that in his medical treatment records the Veteran gives differing reports as to the onset of his symptoms. For example, the 2008 Vail Summit Orthopedics treatment records wherein he reported his wrist disabilities beginning around 1993 and denied any prior trauma to his wrists versus the account of his wrist injuries he gave in his 2019 and 2021 VA examinations and his report of injury in his December 2021 correspondence. The Board finds that his earlier statements made seeking treatment are more probative than his statements made during the course of seeking disability compensation. See Cartwright v. Derwinski, 2 Vet. App. 24 (1991). In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with any wrist disabilities while in service, or within a year after service, and there is no medical opinion in the record linking his current disabilities to his active-duty service. The weight of the evidence is persuasively against granting service connection for the Veteran's claimed bilateral wrist conditions. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (holding "[E]vidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other). As the weight of the evidence is against granting the claims, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the claim must be denied. REASONS FOR REMAND Although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Skin Condition Initially, the Board also notes that the record for review may be incomplete. Within a December 2021 Correspondence, the Veteran's noted that he has sought private treatment for his skin cancers, shortly after leaving active-duty service, which was paid for by his employer. However, these records have not been associated with the claims file. When requesting records not in the custody of a federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. The Board reminds the Veteran that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, it is incumbent upon him to cooperate with the VA in developing his claims, consistent with the directives discussed below. In response to the Board's September 2021 remand the Veteran was afforded a November 2021 VA Skin Diseases examination. The examiner opined that the Veteran's skin conditions were less likely than not etiologically related to the Veteran's active-duty service. The examiner continued that according to medical literature living at high altitudes increases the risk of getting cancer. However, in proffering their opinion, the examiner did not discuss the Veteran's lay contentions as required by the Board remand. Additionally, as noted above, the Veteran submitted a December 2021 statement wherein he noted that he only lived in high altitude for 7 years but spent 14 years while he was in service in "sun belt states." The Veteran further cited to several medical articles regarding UV exposure. As such, the Board finds a remand is required in order to obtain an addendum medical opinion which address the Veteran's lay statements and discusses the articles cited by the Veteran in his December 2021 correspondence. Sleep Apnea While the Veteran was provided with a November 2021 VA Sleep Apnea medical opinion, the Board finds it to be inadequate for adjudication purposes. As part of the September 2021 Board remand the examiner was specifically instructed "if the basis of a negative opinion is the absence of sleep apnea or related symptoms in service, the examiner must indicate: (1) whether sleep apnea and related symptoms would have been noted in the medical records at the time and (2) whether the Veteran would have sought treatment for the sleep apnea symptoms during military service." However, while the examiner partially based their opinion on a lack of sleep apnea symptoms in service, they did not answer the above questions as required by the Board remand. As such, an additional remand is required in order to obtain a medical opinion which complies with the prior remand instructions. Further, the Board also notes that in December 2021 Correspondence, the Veteran cited to a medical journal article which indicated that high altitude sleep apnea only lasts a few days until the person is acclimated. As part of the bases for the examiner's negative opinion was that the Veteran's sleep apnea was related to altitude, the Board finds that an additional medical opinion is required to address the evidence submitted by the Veteran. Pulmonary Hypertension Finally, the Board notes the issue of entitlement to service connection for pulmonary hypertension as secondary to the Veteran's sleep apnea must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issue of entitlement to service connection for sleep apnea. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's issues on appeal. Specifically, the RO should attempt to obtain/locate his complete private treatment records discussed by the Veteran in his December 2021 correspondence. If needed, the RO should contact the Veteran and ask him to better identify and/or submit the records. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, obtain a medical opinion from a VA examiner, who has yet to opine on this case, with sufficient expertise to comment on the etiology of the Veteran's claimed skin condition to include skin cancer and its residuals. All pertinent evidence of record must be made available to and reviewed by the examiner including this remand and the prior September 2021 Board Remand. Any indicated studies should be performed. No additional examination is required unless the examiner deems it necessary. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the Veteran's claimed skin conditions at least as likely as not (a 50 percent probability or greater) originated during the Veterans period of active service, had its onset within a year of the Veteran's discharge, or is otherwise etiologically related to his active service. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements made throughout the record. Specifically, the Board notes that the examiner must address the Veteran's lay contentions that his skin cancer was caused by 21 years of sun exposure during military training and exercise, and that his AK, basal, and squamous cell carcinomas began to appear shortly after leaving the military. Additionally, the examiner must address the Veteran's lay contentions in the December 2021 Correspondence and address the medical journal articles cited by the Veteran. The examiner must provide a complete rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Next, obtain a medical opinion from a VA examiner, who has yet to opine on this case, with sufficient expertise to comment on the etiology of the Veteran's sleep apnea disability. All pertinent evidence of record must be made available to and reviewed by the examiner including this remand and the prior September 2021 Board remand. Any indicated studies should be performed. No additional examination is required unless the examiner deems it necessary. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the Veteran's sleep apnea at least as likely as not (a 50 percent probability or greater) originated during the Veterans period of active service or is otherwise etiologically related to his active service. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements made throughout the record. The examiner must provide a complete rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. If the basis of a negative opinion is the absence of sleep apnea or related symptoms in service, the examiner must indicate: (1) whether sleep apnea and related symptoms would have been noted in the medical records at the time and (2) whether the Veteran would have sought treatment for the sleep apnea symptoms during military service. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.