Citation Nr: 0810475 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 01-03 753A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome of the right wrist. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for back and pectoral muscle injury. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel INTRODUCTION The veteran served on active duty from April 4, 1991, to April 3, 1995. She also had a period of active service of 4 months and 27 days prior to April 4, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in July 2006. The veteran's case was remanded for additional development in October 2006. The case is again before the Board for appellate review. The Board notes that the issues of entitlement to service connection for asthma and carpal tunnel syndrome were also remanded by the Board in October 2006. Service connection for asthma and left wrist tendonitis was granted by the Appeals Management Center (AMC) by way of a September 2007 rating decision. The AMC indicated, through a September 2007 supplemental statement of the case and the rating decision itself, that the award represented a grant of the benefit the veteran sought with respect to her left wrist. The veteran did not dispute this. Consequently, the Board has characterized the carpal tunnel issue remaining on appeal as being limited to the right side. (Consideration of the issues of entitlement to migraine headaches and a back and pectoral muscle injury is deferred pending completion of the development sought in the REMAND that follows the decision below.) FINDING OF FACT The veteran has carpal tunnel syndrome of the right wrist that is likely attributable to her period of active military service. CONCLUSION OF LAW The veteran has carpal tunnel of the right wrist that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran claims that she has carpal tunnel syndrome of the right wrist that is related to her active military service. The veteran's service medical records reveal complaints of wrist pain in March 1992. She reported numbness in her hand in September 1994. She said her hand cramped and at times it hurt to open doors. She noted that the hand was also occasionally swollen. On a February 1995 separation examination, the veteran was noted to have tenderness in both hands at rest. Associated with the claims file are VA outpatient treatment reports dated from July 2000 to September 2004. The veteran was diagnosed with carpal tunnel syndrome in July 2004 and provided with bilateral wrist splints in August 2004. The veteran testified at a Board hearing in July 2006. She said while she was in service she was unable to lift with her left side due to an injury to her pectoral muscle and over- exerted her right hand. The veteran said she is supposed to wear wrist splints daily. The veteran was afforded a VA examination in July 2007 to assess her carpal tunnel syndrome. The veteran reported that she injured her left shoulder while in service and began performing most of her activities with her right hand and then she developed pain. She said she was treated with a splint. She said she continues to have pain and numbness in both hands. The examiner diagnosed the veteran with right carpal tunnel syndrome and opined that it was at least as likely as not caused by or a result of the veteran's wrist complaints during military service. The examiner said the veteran had symptoms during her military service that were consistent with carpal tunnel syndrome and she has similar symptoms now. She noted that the VA examination results were consistent with a diagnosis of carpal tunnel syndrome. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court) lay observation is competent. If chronicity is not shown, service connection may still be established on the basis of 38 C.F.R. §3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to pertinent symptomatology experienced since service. Savage v. Gober, 10 Vet. App. 488 (1997). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). Considering all the evidence of record, and according the veteran the benefit of the doubt, the Board finds that service connection for carpal tunnel of the right wrist is warranted. The SMRs reveal that the veteran was seen for complaints of wrist pain and hand numbness. She was noted to have tenderness in her hands at her discharge examination. The veteran has been treated for carpal tunnel syndrome at VA since service. She testified that she over-exerted her right wrist in service and currently uses splints for her wrists. (The Board notes that the veteran is competent to testify about what she experienced in service, and the symptoms she has experienced since that time. 38 C.F.R. § 3.159 (a)(2) (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).) The VA examiner opined that carpal tunnel syndrome of the right wrist was at least as likely as not caused by or as a result of the veteran's wrist complaints during military service. The examiner said the veteran had symptoms during her military service that were consistent with carpal tunnel syndrome and that she has similar symptoms now. Consequently, service connection for carpal tunnel syndrome of the right wrist is granted. ORDER Entitlement to service connection for carpal tunnel syndrome of the right wrist is granted. REMAND A review of the claims file reveals that a remand is once again necessary with regard to the claims of entitlement to service connection for migraine headaches and a back and left pectoral muscle injury. When the Board remanded the veteran's case in October 2006 the agency of original jurisdiction (AOJ) was requested to obtain any service department records created while the veteran was a military dependent. The AMC was specifically requested to request treatment records from facilities in Vilseck, Germany and Grafenwohr, Germany. The AMC was also asked to determine whether the veteran had obtained treatment at any VA facility subsequent to September 2004 and, if so, obtain any outstanding records. The AMC sent the veteran a letter in November 2006 and requested that she indicate whether she had received treatment at VA prior to September 2004 (rather than subsequent to that date) and she was requested to provide the dates of her treatment in Germany. The veteran failed to respond to the letter. However, statements provided by the veteran in July 2000 and August 2000 indicate that the veteran received treatment in Vilseck, Germany from 1995-1997 and in 2000. If the veteran does not respond to another request for information regarding her treatment in Germany the AOJ should nevertheless request the records from Vilseck, Germany dated from 1995-1997 and in 2000. Furthermore, the AMC requested the veteran to indicate whether she received treatment at any VA facility prior to September 2004 rather than subsequent to September 2004. Consequently, the veteran's case must be remanded once again. This is necessary because of the noncompliance with the instructions of the October 2006 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). Additionally, the Board notes that the veteran's SMRs reveal that the veteran was seen for a headache and nausea after running in June 1993. She reported a history of bi-temporal headaches for one year in July 1994. The veteran said that the headaches usually lasted 24 hours. The veteran reported a history of headaches again in January 1995. The veteran was afforded a VA examination in July 2007 at which time she was diagnosed with headaches. No medical opinion was provided. However, because the veteran was seen for complaints of headaches in service and was diagnosed with the same at the July 2007 VA examination, a medical opinion should be requested. Accordingly, the case is REMANDED for the following action: 1. The AOJ should again contact the veteran to obtain the names and addresses of all medical care providers who have treated her for headaches, or a back or pectoral muscle injury. After securing the necessary releases, the AOJ should obtain those records that have not previously been secured. The AOJ should attempt to obtain any service department records created while the veteran was a military dependent. The AOJ should specifically request treatment records from facilities in Vilseck, Germany dated from 1995- 1997 and in 2000, and from Grafenwohr, Germany. The AOJ should also specifically determine whether the veteran has obtained treatment at any VA medical facilities subsequent to September 2004 and, if so, obtain any outstanding records. 2. If feasible, the veteran's claims file should be sent to the examiner who conducted the July 2007 examination at the Birmingham, Alabama VA Hospital in order to obtain a medical opinion regarding headaches. (If this examiner is not available, seek a substitute opinion.) The claims folder, as well as a copy of this remand, should be made available. The reviewer is requested to indicate the medical probabilities that headaches are traceable to the veteran's period of military service. (If another VA examination is deemed necessary by the reviewer, one should be accomplished.) A complete rationale for any opinions expressed, as well as a discussion of the medical principles involved, should be provided. (If another VA examination in deemed necessary, the veteran is hereby notified that it is the veteran's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2007).) 3. Thereafter, review the claims file to ensure that the requested development has been completed. In particular, review the medical opinion and/or examination report to ensure that it is responsive to and in complete compliance with the directives of this remand, and if it is not, take corrective action. 4. After undertaking any other development deemed appropriate, re- adjudicate the issues remaining on appeal. If any benefit sought is not granted, the veteran and her representative should be furnished a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until she is notified by VA. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs