Citation Nr: 18124042
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 15-38 829
DATE:	August 6, 2018
ORDER
Entitlement to service connection for left wrist pain is denied.
Entitlement to service connection for right wrist pain is denied.
REMANDED
Entitlement to service connection for metatarsalgia (claimed as bilateral foot pain/sprain) is remanded.
Entitlement to service connection for bronchitis, chronic (claimed as due to asbestos and mold exposure) is remanded.
FINDINGS OF FACT
1. There is no competent evidence of record that reflects the Veteran suffers from a current left wrist disability.
2. There is no competent evidence of record that reflects the Veteran suffers from a current right wrist disability.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for left wrist pain have not been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303 (2017).
2. The criteria for entitlement to service connection for right wrist pain have not been met.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from March 2003 to January 2005.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.
The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2017.  A transcript of the hearing is of record.
The Board notes that the Veteran requested to withdraw his increased rating claim for a psychiatric disability at the February 2017 Board hearing.  However, following the September 2016 statement of the case, the Veteran did not file a timely substantive appeal in response.  Appellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished.”  38 U.S.C. § 7105(a); see also 38 C.F.R. § 20.200. Therefore, the Board does not have jurisdiction over this matter and no decision will be rendered.
Service Connection
Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303 (d).
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).
Service connection may not be granted without evidence of a current disorder.  See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Under the applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions.  38 C.F.R. § 4.1 (2015); see Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991).  
Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for a claim to be denied.  Alemany v. Brown, 9 Vet. App. 518 (1996).
Entitlement to service connection for left and right wrist pain
Regarding the first element of service connection, the existence of a present disability, the evidence of record does not establish that the Veteran has a current diagnosis of left or right wrist pain for the following reasons.
Upon review of the record, the Veteran complained of and was treated for left and right wrist pain, however, there is no diagnosis in the record.  As noted in the July 2013 VA examination, there was no diagnosis because there was no pathology to render a diagnosis.  
In addition, service treatment records and post-service treatment records have not noted any diagnosis for the Veteran’s bilateral wrist pain.
The Board recognizes the recent decision in Saunders v. Wilkie that “pain alone can serve as a functional impairment and therefore qualify as a disability.”  No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018).  However, the Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain.  Id.  Rather, the Court stated “[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity.”  Id.
In this case, the Board acknowledges the Veteran’s subjective reports of difficulty with all activities that involve the right wrist (writing, working on cars), and difficulty with push-ups.  However, the Board finds these symptoms are not severe enough to reach the level of functional impairment of earning capacity.  The Board bases its finding on the normal clinical evaluations of range of motion and other normal clinical evaluations on the record.  The July 2013 VA examiner found no functional impairment on clinical evaluation and no objective evidence of pain on motion.  In addition, there were normal ranges of motion.  
In forming this opinion, the Board has also considered the Veteran’s lay statements in support of his claim.  However, the Board finds the medical evidence more probative in this instance.  Though the Veteran served as a medic during service, there is no evidence to suggest that he has a diagnosed wrist disability.  Essentially, there has to be supporting medical evidence.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating that medical evidence was needed to support a claim for rheumatic heart disease).  Here, the medical evidence of record only refutes the Veteran’s claim, and does not support his statement that he currently suffers from a wrist disability.
As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application and the claim must be denied.
REASONS FOR REMAND
Entitlement to service connection for metatarsalgia (claimed as bilateral foot pain/sprain) and entitlement to service connection for bronchitis, chronic (claimed as due to asbestos and mold exposure) are remanded.
In a July 2013 VA examination, the Veteran was diagnosed with chronic bronchitis and metatarsalgia.  The Veteran’s service treatment records show that the Veteran was treated for an upper respiratory infection several times including in October 2004.  These records also show complaints of bilateral pain to the bottom of both feet in June 2004.  No opinion has been rendered regarding the etiology of his chronic bronchitis claim and bilateral metatarsalgia.  Therefore, the Board finds that a VA opinion, and/or VA examination if needed, is necessary.
The matters are REMANDED for the following actions:
1. Obtain any outstanding private or VA treatment records.  Request that the Veteran assist with locating these records, if possible.  Associate these records with the claims file.
2. Thereafter, forward the claims file and a copy of this remand to an appropriate VA examiner to determine the etiology of the Veteran’s bronchitis and metatarsalgia.  The examiner should review all pertinent evidence of record.  The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s chronic bronchitis was caused by the Veteran’s service.  The examiner must also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s metatarsalgia was caused by the Veteran’s service.
The examiner must provide a clear rationale for all opinions expressed.  The examiner must also consider the lay statements of record and the service treatment records that note treatment for upper respiratory infections and foot pain.  If the examiner is unable to provide an opinion without resorting to mere speculation then the examiner must state this and provide any information needed to provide an opinion, if possible.
3. Then, readjudicate the claims on appeal.  If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review.

 
MICHAEL MARTIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Saudiee Brown, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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