Citation Nr: 0812443 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-00 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome of the right wrist. 2. Entitlement to service connection for carpal tunnel syndrome of the left wrist. 3. Entitlement to service connection for post-traumatic low back strain. 4. Entitlement to service connection for left leg paresthesias. REPRESENTATION Appellant represented by: Veterans Advocacy Group ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The veteran served on active military duty from June to September 1998 and from July 2001 to July 2004. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The issues of service connection for carpal tunnel syndrome of the right and left wrists and for left leg paresthesias are being remanded to the agency of original jurisdiction (AOJ) via the Appeals Management Center in Washington, DC. FINDING OF FACT The veteran currently is shown to have post-traumatic low back strain that had its clinical onset during his period of active service. CONCLUSION OF LAW Post-traumatic low back strain is due to injury that was incurred during active duty. 38 U.S.C.A. §§ 1110, 5103A, 5107, 7104 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Initial Considerations The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2006). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issues decided herein. In September 2004, the RO sent the veteran a letter in which he was informed of the requirements needed to establish service connection. In accordance with the requirements of VCAA, the letter informed the veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims file. The veteran was advised in the letter to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in his possession that pertains to a claim. Although the veteran was not specifically informed that a disability rating and effective date would be assigned if his service connection claim for post-traumatic low back strain was granted was granted, this is harmless error since the issue is being granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A private medical opinion dated in February 2005 is of record. The Board concludes that all available evidence that is pertinent to the claim decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue. The veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2007). Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that defect would not be more than harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with VCAA reasonably affects the outcome of this case, the Board finds that any such omission is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Law and Regulations Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis The veteran did not complain of back disability on his June 2001 preservice medical history report, and his spine was noted to be normal on preservice medical evaluation in June 2001. Service medical records reveal that the veteran complained in an undated report of pain the day after he fell and hit his back on a tire jack; a lumbar contusion was diagnosed. He complained in January 2003 of a three to four month history of intermittent low back pain after he fell on a tire jack; a prior history of motor vehicle and bicycle accidents were noted. Examination revealed tenderness in the left L1-L4 area; the assessment was back pain. On VA evaluation in October 2004, the veteran noted that he originally hurt his back in 2002 when he tried to lift himself up from the back of a HUMVEE by grabbing the tailgate, which turned out not to be latched. He fell back to the ground and onto the tire jack. The veteran said that he had had intermittent low back pain since the injury. Examination revealed pain and stiffness on motion. Post- traumatic low back strain of musculoligamentous origin was diagnosed. X-rays of the lumbosacral spine were considered normal. According to a February 2005 statement from J.R.B., M.R., the veteran had a history of a military related back injury with direct trauma to the back. It was noted that recent x-rays showed some apparent anterior wedge compression deformities at the superior aspect of L1 and L2 with a negative CAT scan of the lumbar spine for acute injury. Dr. B noted that the veteran had not had any back problem prior to service and that the findings were consistent with "the previous injury likely related to his military service." As the veteran complained of a low back injury in service, as there is evidence of continuity of symptomatology after service discharge, and as there is a medical opinion linking the veteran's current low back disability, diagnosed as post- traumatic low back strain in October 2004, to service injury, service connection is warranted for post-traumatic low back strain. ORDER Service connection for post-traumatic low back strain is granted. REMAND A review of the claims file reveals that the veteran underwent right wrist carpal tunnel syndrome release in service. He complained on VA examination in October 2004, only three months after service discharge, of carpal tunnel syndrome in both wrists and of left leg paresthesias due to service. The diagnoses in October 2004 included carpal tunnel syndrome of the right wrist, status-post decompression procedure; paresthesias of the left wrist compatible with clinical diagnosis of carpal tunnel syndrome; and atypical left leg paresthesias, post-traumatic. An electromyogram showed bilateral carpal tunnel syndrome. Although there is medical evidence not too long after service discharge of the disabilities still on appeal, there is no nexus opinion on file on whether any disability is causally related to service. There is evidence on file that notice was sent to the veteran's representative on November 30, 2005 of VA examination scheduled for the veteran on December 17, 2005, in connection with his service connection claims. The veteran failed to report for his scheduled VA examination. According to December 2005 statements on behalf of the veteran, he was not given sufficient time to make arrangements to take time off from his employment to attend the examination. It was requested that he be rescheduled for a VA examination. The Board agrees that there is insufficient medical evidence on file on which to make a reasoned determination on each of the issues remaining on appeal and that a medical evaluation with nexus opinion would be helpful. Consequently, the Board concludes that the veteran should be given one more chance to appear for VA evaluation. VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2007), examinations will be requested whenever VA determines, as in this case, that there is a need to verify the existence and etiology of a disability. See also 38 C.F.R. § 3.159 (2007). Accordingly, this remaining matter is REMANDED to the AOJ for the following actions: 1. The AOJ should take appropriate action to contact the veteran and ask him to provide the names, addresses and approximate dates of treatment for any health care providers, including VA, who may possess additional records pertinent to his claims for service connection for carpal tunnel syndrome of the wrists and for left leg paresthesias, such as treatment since the most recent evidence dated in February 2005. After obtaining any necessary authorization from the veteran for the release of his private medical records, the AOJ should obtain and associate these records with the file. If the AOJ is unsuccessful in obtaining any such records identified by the veteran, it should inform the veteran of this and request him to provide a copy of the outstanding medical records if possible. 2. The AOJ should schedule the veteran for an appropriate VA examination to determine the nature and likely etiology of any current carpal tunnel syndrome of the wrists and left leg paresthesias. The claims folder must be made available to the examiner in conjunction with this examination. The examination report must reflect review of pertinent material in the claims folder. The examiner should provide an opinion whether it is at least as likely as not (50 percent or more likelihood) that the veteran has carpal tunnel syndrome of the wrists and/or left leg paresthesias that had a clinical onset during his period of active service. A complete rationale for all opinions must be provided. 3. The AOJ must notify the veteran that it is his responsibility to report for the above examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.655 (2007). In the event that the veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Following completion of all indicated development, the AOJ should readjudicate the veteran's claims of service connection for carpal tunnel syndrome of the right wrist, carpal tunnel syndrome of the left wrist, and left leg paresthesias, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If any of the benefits sought on appeal remains denied, the veteran should be provided a Supplemental Statement of the Case. The veteran should then be given an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The veteran may present additional evidence or argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the AOJ. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2002) (Historical and Statutory Notes); see M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs