Citation Nr: 0813143 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 96-12 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for carpal tunnel syndrome of the right upper extremity based on Department of Veterans Affairs (VA) surgery and treatment in 1974. REPRESENTATION Appellant represented by: Dennis L. Peterson, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Reynolds, Counsel INTRODUCTION The veteran had active service from January 1954 to October 1955. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 1995 rating decision by the St. Paul, Minnesota, VA Regional Office and Insurance Center (RO), which denied compensation under the provisions of 38 U.S.C. § 1151 for reflex sympathetic dystrophy and carpal tunnel syndrome of the right upper extremity. In July 2001, the Board denied an appeal of these denials. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2002, the Court granted a joint motion of the parties, vacated the Board's decision and remanded the matters to the Board for action consistent with the joint motion. In March 2003, the Board remanded the case for further development in compliance with the Court's Order. In December 2004, the Board denied the veteran's reflex sympathetic dystrophy claim, and remanded his remaining carpal tunnel syndrome claim for further development. In a March 2006 decision, the Board denied the carpal tunnel syndrome claim, and the veteran appealed that denial to the Court. In October 2006, the Court granted a joint motion of the parties, and remanded the matter to the Board for action consistent with the joint motion. In March 2007, the Board remanded the case for further development in compliance with the Court's Order. FINDING OF FACT The carpal tunnel syndrome of the veteran's right upper extremity was present prior to VA surgery and treatment in 1974, and this disability did not increase in severity as a result of the VA surgery or treatment. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for carpal tunnel syndrome of the right upper extremity resulting based on VA surgery and treatment in 1974 have not been met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. §§ 3.358, 3.800 (1993-97). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. However, the Court also stated that the failure to provide such notice in connection with adjudications prior to the enactment of the VCAA was not error and that in such cases, the claimant is entitled to "VCAA-content complying notice and proper subsequent VA process." Id. at 120. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the case at hand, the veteran's claim was received and initially adjudicated long before the enactment of the VCAA in November 2000. The record reflects that the originating agency provided the veteran with the notice required under the VCAA, to include notice that he submit any pertinent evidence in his possession, by letter mailed in April 2007. Following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the veteran's claim in October 2007. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had VCAA notice been provided at an earlier time. Although the veteran has not been provided notice with respect to the disability-rating or effective-date element of this claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that entitlement to compensation under the provisions of 38 U.S.C. § 1151 for carpal tunnel syndrome of the right upper extremity is not warranted. Consequently, no disability rating or effective date will be assigned, so the failure to provide notice with respect to those elements of the claim was no more than harmless error. The Board also notes that the veteran has been afforded appropriate VA examinations and service medical records and pertinent VA medical records and private medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. Therefore, the Board is also satisfied that the originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. In sum, the Board is satisfied that the RO properly processed the claim following the provision of the required notice and that any procedural errors in its development and consideration of the claim were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claim. Factual Background A May 1974 VA hospital summary indicates that the veteran was admitted with a two-year history of pain and weakness of his right hand. He reported that the symptoms had recently increased in severity, and that he was no longer able to work. He said his symptoms included weakness in the thumb and pinch muscles. He gave a history of cutting his right hand at the ulnar aspect of the wrist with glass in 1971. Examination revealed a traumatic scar over the distal flexion crease at the right wrist and palmar aspect of the ulnar side. There was a positive Tinel's sign over the scar and the median nerve of the wrist. There was considerable wasting of the thenar eminence of the right hand. There was also decreased sweating over the thumb, index, and long fingers. Sensation was decreased over the entire palmar aspect of the right hand. Motor function testing of the right hand revealed weak pinch and weak interosseous intrinsic function. Deep tendon reflexes were absent in both upper extremities. An electromyogram performed at admission showed severe delay of the median nerve at the wrist on the right side. There was also some delay at the ulnar nerve. Later that month, the veteran was taken to surgery and, through a curvilinear longitudinal incision at the wrist, the median and ulnar nerves were released. The median nerve was found to be entrapped within the carpal tunnel and was swollen and boggy. The entire carpal tunnel was released. In the ulnar tunnel, the accessory branch of the ulnar nerve was found to have a large neuroma. This was "neurolysed" and the ulnar tunnel was released. The neuroma was thought to be secondary to the traumatic scar, which was exactly over the neuroma. It was believed that the veteran probably had an incomplete laceration of his ulnar nerve at the time of the laceration of his wrist. The veteran was noted to have done very well following the surgery. The symptoms relative to his right hand, wrist, and upper arm improved considerably. He reported having some improvement in motor function. He was discharged from the hospital in June 1974. He was advised to return to the orthopedic clinic in two weeks for the removal of the sutures. In a report dated in August 1974, J.K. Butler, M.D., indicated that he had evaluated the veteran in March 1974 due to a complaint of a decrease in sensation in the ulnar distribution of the right hand. His other symptoms included weakness in the thumb and pinch muscles. Following his physical examination of the veteran, Dr. Butler referred the veteran to the VA hospital where he eventually underwent surgery in May 1974. The findings from the surgery were discussed. Dr. Butler indicated that the veteran had been discharged from the hospital with considerable improvement. However, he said he did not feel that the veteran had more than 60 percent usage of his right hand, and that it would be unlikely that the veteran's condition would improve. Outpatient treatment records from the Minneapolis VA Hospital (VAH) dated from June to August 1974 show that the veteran was followed for the residuals of his right wrist surgery. A June 1974 consultation report from the physical therapy clinic indicates that active and passive ranges of motion of the right wrist were slightly limited to both extension and flexion. There was evidence of limitation of motion of the thumb and fingers. There were also indications that there were still some numbness and tingling of the fingers. Approximately one month later, the veteran was noted to have a "good" range of motion of the fingers. Abduction of the thumb, however, was still somewhat limited. There was also some flexion weakness of the fingers. Grasp was fair and hook was good. The veteran was unable to oppose his thumb to his index or middle finger. An August 1974 treatment note indicates that the veteran had a positive Tinel's sign proximal to the scar. He still experienced weakness and loss of range of motion. The veteran was afforded a VA neurological examination in December 1974. He was noted to have undergone an operation on his right wrist for repair of the median and ulnar nerves. The distribution of involvement of the right hand was mainly over the area of the ulnar nerve involving the small and lateral side of the ring finger of the right hand. There was slight weakness in the grip of that hand. The diagnosis was post-operative, post-traumatic right hand ulnar nerve involvement with some sensory disturbance and loss of sensation over the small and lateral part of the ring finger. Similar findings were made during a June 1976 VA neurological examination. In February 1993, the veteran filed a claim for compensation for carpal tunnel syndrome and reflex sympathetic dystrophy of the right upper extremity as a result of VA surgery and treatment. He stated that he suffered a laceration to his right wrist in 1971, and that he underwent surgery in May 1974 to correct problems stemming from that injury. He asserted, however, that the surgery had been performed improperly. Specifically, he said that he had been told by a VA doctor on September 13, 1990, that the incision made during the 1974 surgery had been in the wrong direction. VA medical records reveal that in September 1990, the veteran was evaluated at a neurosurgery clinic. He described having a calcified mass removed from his right upper extremity. He indicated that he suffered from pre-operative weakness and numbness in his right hand. He reported that he had not experienced any change since surgery had been performed 19 years earlier. A recent EMG showed chronic changes of the right median nerve. There was sensory absence of the ulnar nerve which was consistent with peripheral neuropathy. Following a physical examination, the assessment was chronic right median neuropathy, status post right carpal tunnel repair. The examiner expressed doubt that any improvement could be obtained without additional surgery. Contrary to the veteran's February 1993 assertion, there is no indication that the September 1990 examiner believed that the May 1974 wrist surgery had been performed improperly. The veteran was afforded a personal hearing before a Hearing Officer in June 1996. The veteran contended that prior to his surgery in 1974 he had normal function of his right hand and arm. He maintained that the surgery performed in May 1974 had rendered his right hand almost entirely useless. He said that he had been told by a VA physician in September 1990 that the surgery had been performed improperly. The veteran insisted that his right hand, wrist, and arm were essentially normal prior to the surgery. He acknowledged that he had suffered a laceration injury of the right wrist in 1971, and that he received between three and five sutures to close the wound. He said the injury had been relatively minor. In May 1997, the veteran underwent a VA neurological examination. He was noted to have been hospitalized in May 1974 due to complaints of right hand discomfort. It was also noted that an EMG showed neuropathic changes in both the ulnar and median nerves commencing at the wrist, and that his right wrist was explored and the ulnar and median nerves were looked at. The findings of the surgery were discussed. The veteran stated that he experienced a profound worsening of his condition immediately after the surgery. He indicated that he had recently had some improvement since undergoing a series of stellate ganglion nerve blocks. Following a physical examination, the examiner stated that he believed that the veteran had a bonafide complaint because of the injuries to his median and ulnar nerve on the right hand. He said that it appeared that the injury was carried out at the Minneapolis VAH in May 1974. He stated that the veteran had use of his hand before the 1974 operation but had had no use of his right hand since the operation. While it was up to the "powers that be" as to whether the veteran deserved compensation for his disability, the examiner opined that the severe injuries to the veteran's ulnar and median nerves were the result of the explorative surgery performed in 1974. Another VA neurological examination was conducted in July 1999. The veteran's complaints were recorded and discussed. The pre-operative, operative, and post-operative medical reports were also assessed. In this regard, the examiner observed that there was a strong suggestion that the veteran had problems with his right hand prior to his 1974 surgery. A thorough physical examination was performed. The examiner stated that the findings of the examination were consistent with a combination of median and ulnar nerve disease. However, he said the veteran's memory appeared to be a bit faulty about the relationship between the weakness of his right hand and the surgery. The examiner indicated that the current symptoms and signs of the veteran's right upper extremity were clearly present prior to the 1974 surgery. He did not believe that the surgery was a precipitating or inciting cause of the veteran's present problem which had been stable for many years. The examiner stated that there was no question that the veteran had ulnar and median nerve dysfunction of the right hand. However, he said he did not think to reasonable certainty that the surgery was a significant factor in the present disability of the veteran's right hand. In a letter dated in December 1999, K.E. Etterman, M.D., reported that he had treated the veteran on several occasions for reflex sympathetic dystrophy and associated disability of the right hand. Dr. Etterman stated that he had reviewed the 1974 medical records from Dr. Butler, and that those records seemed to indicate that the veteran's problems were of a post-operative origin. Observing that he was unable to state what the veteran's hand was like or how it functioned before the surgery, Dr. Etterman indicated that the veteran did not have very good functioning currently. The veteran was noted to have a loss of fine touch that prevented him from delineating the pressure that was placed with grip strength. He was not able to perform activities of daily living with his right hand. He had dysesthesia to the point where he had to wear a Jobst glove at all times. Dr. Etterman suggested that the claim be reviewed by an independent medical examiner to determine whether the veteran's right hand disability should be service connected. Pursuant to the Board's June 2000 remand, the veteran was afforded a neurological examination by two VA neurologists in October 2000. The reports of the examination show that the veteran was afforded a complete physical examination, and that the examiners reviewed the claims folder. In the report from the first examiner, the veteran was diagnosed as having a combination of both median and ulnar nerve disease. The examiner opined that it is "more likely than not" that the operation in 1974 had nothing to do with the veteran's present situation. He noted that the veteran had a positive Tinel's sign on the right at the time of the surgery as well as wasting of the thenar eminence and other sensory and motor abnormalities. After discussing the 1974 operative report, the examiner indicated that the veteran's memory appeared to be a bit faulty about the relationship between the weakness in his right hand and the surgery. He said the symptoms and signs that the veteran currently suffered from were present prior to his 1974 surgery. In sum, the examiner opined that it was not likely that the veteran's current right arm and right hand problem was caused or chronically worsened by the VA surgery and treatment in 1974. The report from the second VA neurologist contains similar findings. The examiner stated that the veteran's symptoms and signs were clearly present prior to his 1974 surgery. He opined that the surgery was neither a precipitating nor inciting cause to the veteran's present problem which had been present for years. He said there was no question that the veteran suffered from ulnar and median nerve dysfunction in the right hand. However, the examiner stated that he did not believe that the 1974 surgery contributed in the least to the current findings pertaining to the veteran's hand. The Board notes that this examiner is the same VA examiner who indicated in May 1997 that the veteran did not have a right wrist problem due to surgery. The veteran was afforded two VA neurological examinations in December 2003. The first VA examiner noted that he had reviewed the veteran's claims file prior to examining the veteran. The examiner found the veteran to have right carpal tunnel syndrome status post release surgery with noncomplete function of recovery of the right arm. He noted that there was residual atrophy of the right hand muscle groups with progressive loss of grip abilities. The examiner opined that there was no evidence that the veteran's right wrist pathology was the result of a surgical procedure, hospitalization, and treatment at the VA medical center in May and June 1974. The second VA examiner also noted that she examined the veteran's claims file. She stated that the veteran was a difficult historian, making it imperative that she review the chart for dates and times. The diagnoses included status post right carpal tunnel release in 1974. The examiner noted that the veteran claimed that he lost significant strength after the wrist surgery. The examiner stated that the record did not confirm that claim. She noted that the veteran had had significant presurgery weakness and atrophy, as well as decreased sensation in the right hand due to a laceration he sustained with glass over the volar ulnar aspect of the right wrist, resulting in a neuroma and entrapment of the ulnar nerve. She stated that there was no evidence of neglect on the part of the VA in treating the veteran's condition. She further stated that she had reviewed the May 1997, December 1999, and October 2000 medical reports. She noted that she agreed with the October 2000 report that the veteran's memory was faulty regarding the relationship between the weakness of the right hand and the surgery. She noted that his signs and symptoms were severe preceding his surgery, and in her opinion the surgery was not a precipitating or inciting cause of the veteran's present problem. The examiner stated that she was of a reasonable degree of medical certainty that neither the shoulder problem nor the surgery caused the dysfunction of the right hand. She finally stated that it was her opinion that it was unlikely that the right upper extremity problem was caused by or chronically worsened by the VA medical center surgery or treatment. Analysis As discussed in the Board's June 2000 and March 2006 decisions, 38 U.S.C. § 1151 was amended by § 422(a) of Pub. L. No. 104-204, 110 Stat. 2874, 2926 (1996) during the pendency of this appeal. The amended statute is less favorable to the veteran's claim; however, since the veteran's claim was filed prior to October 1, 1997, it must be adjudicated under the provisions of § 1151 as they existed prior to the amendment. See VAOPGCPREC 40-97. 38 U.S.C.A. § 1151 (West 1991) provides that when a veteran suffers injury or aggravation of an injury as a result of VA hospitalization or medical or surgical treatment, not the result of the veteran's own willful misconduct or failure to follow instructions, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service-connected. The regulation implementing that statute appears at 38 C.F.R. § 3.358 and provides, in pertinent part, that in determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based is compared with the physical condition subsequent thereto. 38 C.F.R. § 3.358(b)(1). In determining whether additional disability resulted from a disease or injury or from aggravation of an existing disease or injury suffered as a result of VA hospitalization, medical, or surgical treatment, it will be necessary to show that additional disability is actually the result of such disease or injury or aggravation of an existing disease or injury and not merely coincidental therewith. Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. 38 C.F.R. § 3.358(c). With respect to the merits of the veteran's claim, the June 1974 hospital summary clearly indicates that the veteran suffered a cutting injury to his right wrist in 1971, and that he gave a history of weakness, pain, and numbness in the right hand and arm since that injury. The summary also reveals that a positive Tinel's sign over the scar and over the median nerve, wasting of the thenar eminence, decreased sensation and strength, and reduced motor function were found prior to the surgery. Post-operative treatment notes indicate that the veteran derived some improvement from the 1974 surgery. The record contains two medical opinions that support the veteran's claim that he experienced additional disability due to his VA surgery and treatment in 1974, the May 1997 VA examiner's opinion, and the December 1999 opinion of Dr. Etterman. However, the Board does not find these opinions to be of significant probative value. The May 1997 VA examiner indicated that the veteran had use of his right hand prior to the 1974 operation and no use of the right hand after the operation, yet the contemporary medical evidence clearly contradicts that statement. Furthermore, the May 1997 VA examiner examined the veteran once again in October 2000, and this time he expressed the opinion that the 1974 surgery did not contribute in the least to the veteran's current right hand disability. After examining the record, including his own previous opinion, he still concluded that the 1974 surgery resulted in no additional disability to the veteran. Consequently, the Board finds the May 1997 opinion to be of little probative value. In the December 1999 letter, Dr. Etterman indicated that he was unable to state what the veteran's hand was like or how it functioned before the surgery. The Board therefore finds that Dr. Etterman was not qualified to state whether the 1974 surgery resulted in additional disability. The Board finds that the other medical opinions of record, which all show that the veteran's medical history was reviewed prior to examination of the veteran, and which are supported by the contemporary medical evidence, are the most probative. These include the opinions found in the July 1999 VA examination report, the two October 2000 VA examination reports, and the two December 2003 VA examination reports. Accordingly, the Board concludes that the preponderance of the evidence is against the veteran's claim. ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for carpal tunnel syndrome of the right upper extremity based on VA surgery and treatment in 1974 is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs