Citation Nr: 1007178	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  08-04 255	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, 
Minnesota


THE ISSUES

1.  Entitlement to service connection for right carpal tunnel 
syndrome.

2.  Entitlement to service connection for a right shoulder 
disability, claimed as secondary to carpal tunnel syndrome.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

Amy M. Smith, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air 
Force from January 1981 to January 1985, with subsequent 
service in the Minnesota Air National Guard.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a July 2007 rating action of the 
Department of Veterans Affairs Regional Office (RO)
in St. Paul, Minnesota.

The Veteran presented testimony at a Travel Board hearing 
chaired by the undersigned Veterans Law Judge in September 
2009.  A transcript of the hearing is associated with the 
claims file.

The issue of entitlement to service connection for right 
carpal tunnel syndrome is addressed in the REMAND portion of 
the decision below and is REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran does not have a current chronic right shoulder 
disability.


CONCLUSION OF LAW

Service connection for a right shoulder disability is not 
warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & 
Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2009).  

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties To Notify And Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative of any information, 
and any medical or lay evidence, that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 
3.159(b).  Proper VCAA notice must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
and (3) that the claimant is expected to provide in 
accordance with 38 C.F.R. § 3.159(b)(1).  
Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004).

The foregoing notice requirements were satisfied by a July 
2006 letter, which informed the Veteran of the evidence 
necessary to support her claim on both a direct and secondary 
service connection basis.  This letter also informed the 
Veteran of the law and regulations governing the assignment 
of disability ratings and effective dates.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In 
addition, following the letter, the September 2007 statement 
of the case, and October 2008, December 2008, and February 
2009 supplemental statements of the case were issued, each of 
which provided the Veteran an additional 60 days to submit 
more evidence.

The Board also finds that the duty to assist provisions of 
the VCAA have been met in this case.  The Veteran underwent a 
pertinent VA examination in October 2006.  Additionally, all 
relevant treatment records adequately identified by the 
Veteran have been obtained and associated with the claims 
file.  Neither she nor her representative has identified any 
other pertinent evidence, not already of record, which would 
need to be obtained for a fair disposition of this appeal.  
Standard Of Review

Once the evidence has been assembled, it is the Board's 
responsibility to evaluate the record.  38 U.S.C.A. 
§ 7104(a).  When there is an approximate balance of evidence 
regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  38 
U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 
1 Vet. App. 49, 53 (1990), the United States Court of Appeals 
for Veterans Claims (Court) stated that "a [V]eteran need 
only demonstrate that there is an 'approximate balance of 
positive and negative evidence' in order to prevail."  To 
deny a claim on its merits, the evidence must preponderate 
against the claim.

General Laws And Regulations

Generally, service connection may be granted for any 
disability resulting from injury suffered or disease 
contracted in line of duty, or for aggravation in service of 
a pre-existing injury or disease.  38 U.S.C.A. § 1110.  
Service connection may be established by demonstrating that 
the disability was first manifested during service and has 
continued since service to the present time or by showing 
that a disability which pre-existed service was aggravated 
during service.  Service connection may be granted for any 
disease diagnosed after discharge from service, when all the 
evidence, including that pertinent to service, establishes 
that the disease was incurred in service.  38 C.F.R. § 3.303.  

Service connection may also be granted for a disability 
resulting from disease or injury incurred in or aggravated 
while performing active duty for training (ACDUTRA) or injury 
incurred or aggravated while performing inactive duty for 
training (INACDUTRA).  38 U.S.C.A. §§ 101(22)-(24), 106(d), 
1110; 38 C.F.R. § 3.6(c), (d), 3.303.

Further, service connection may be granted for disability 
shown to be proximately due to, or the result of, a service-
connected disorder.  See 38 C.F.R. § 3.310(a).  This 
regulation has been interpreted by the United States Court of 
Appeals for Veterans Claims (Court) to allow service 
connection for a disorder which is caused by a service-
connected disorder, or for the degree of additional 
disability resulting from aggravation of a non service-
connected disorder by a service-connected disorder.  See 
Allen v. Brown, 7 Vet. App. 439 (1995).

A threshold requirement for the grant of service connection 
for any disability is that the disability claimed must be 
shown to be present.  38 U.S.C.A. § 1110.  The Court has 
interpreted the requirement of current disability thus:

Congress specifically limits entitlement 
for service-connected disease or injury 
to cases where such incidents have 
resulted in a disability.  See 38 U.S.C. 
§ 1110.  In the absence of proof of a 
present disability there can be no valid 
claim.  Brammer v. Derwinski, 3 Vet. App. 
223, 225 (1992).

In relevant part, 38 U.S.C.A. 1154(a) requires that VA give 
"due consideration" to "all pertinent medical and lay 
evidence" in evaluating a claim for disability or death 
benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 
Sept. 14, 2009).

Lay testimony is competent to establish the presence of 
observable symptomatology and "may provide sufficient support 
for a claim of service connection."  Layno v. Brown, 6 Vet. 
App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 
398, 405 (1995) (lay person competent to testify to pain and 
visible flatness of his feet); Espiritu v. Derwinski, 2 Vet. 
App. at 494-95 (lay person may provide eyewitness account of 
medical symptoms).  Competency, however, must be 
distinguished from weight and credibility, which are factual 
determinations going to the probative value of the evidence.  
See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Analysis

The Veteran contends that she developed a right shoulder 
disability as a result of her currently-shown right carpal 
tunnel syndrome.

As reflected by the March 1980 pre-induction examination 
findings and subsequent physical examination reports, the 
Veteran evidenced no right shoulder problems upon entry into 
or during her period of active service in the Air Force.  

National Guard records reflect a September 2004 complaint of 
right shoulder blade pain following a slip and fall at a 
department store in July 2004 while the Veteran was not on 
active duty, active duty for training or inactive duty 
training.  Physical examination of the shoulder revealed full 
mobility with diffuse tenderness to palpation in the girdle 
region.  No diagnosis was provided.

Post-service treatment records, including an October 2006 VA 
examination, reflect continued complaints of right shoulder 
pain, with no clinical pathology indicated.  

Based on the foregoing evidence, the Board finds that service 
connection for a right shoulder disability is not warranted.  
While the record reflect complaints of right shoulder pain, 
the Board notes that pain alone, without a diagnosed or 
identifiable underlying condition, does not constitute a 
disability for which service connection may be granted, 
Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).  While the 
Veteran is competent to describe her right shoulder symptoms, 
she does not possess the medical expertise to provide a 
diagnosis in this case.  See Espiritu, 2 Vet. App. 492 
(1992).  In the absence of a currently-shown right shoulder 
disability, there is no basis to award service connection.  
Brammer.

ORDER

Service connection for a right shoulder disability is denied.


REMAND

The Veteran asserts that her currently-shown right carpal 
tunnel syndrome is attributable to duties she performed while 
in the Minnesota Air National Guard.  Specifically, she 
asserts that repetitive key boarding during active duty for 
training or inactive duty training periods caused a right 
wrist injury to progress to carpal tunnel syndrome. 

National Guard records reflect a September 2004 private 
diagnosis of a right wrist sprain following a slip and fall 
in July 2004 while not performing military duty.  The Veteran 
was issued a temporary physical profile until October 2004, 
but continued to complain of right wrist pain.  She was 
diagnosed with right carpal tunnel syndrome by private EMG in 
August 2005.  These records also reflect a military 
occupational specialty of information management journeyman, 
and that from July 2004 to August 2005 the Veteran had 8 days 
of ACDUTRA and 22 days of INACDUTRA.

Initially, the Board notes that because the Veteran was not 
diagnosed with carpal tunnel syndrome while on ACDUTRA, 
direct service connection for this disease is not warranted.  
In addition, since she had no subsequent ACDUTRA during which 
the disease might have been aggravated, service connection on 
this basis is also not warranted.  

However, the question remains whether the Veteran's right 
wrist injury (sprain) was aggravated by subsequent ACDUTRA or 
INACDUTRA so as to result in carpal tunnel syndrome in August 
2005.  The Board notes that in a September 2005 statement, 
the Veteran's private physician opined that the repetitive 
gripping, grasping, and torquing activities performed in her 
civilian job as a dental hygienist were significant 
contributing factors to the progression of her right wrist 
condition.  Nevertheless, the Board finds that the question 
of whether the Veteran's right wrist sprain was aggravated by 
her service as to produce carpal tunnel syndrome should be 
addressed by a VA medical professional.  

Accordingly, the case is REMANDED for the following action:

1.	The Veteran's claims file, including 
this remand, should be reviewed by an 
individual with the appropriate 
expertise.  The reviewer is asked to 
express an opinion as to whether the 
Veteran's right wrist sprain underwent 
any increase in severity beyond its 
natural progression during active 
service (ACDUTRA or INACDUTRA) from 
July 2004 to August 2005 (30 days 
altogether) so as to result in carpel 
tunnel syndrome.  A complete rationale 
should be provided for all opinions 
expressed.  

If the requested opinion cannot be made without a 
physical examination of the Veteran, that should be 
arranged.

2.	When the development requested has been 
completed, the claim should be 
readjudicated.  If the benefit sought 
on appeal remains denied, the Veteran 
and her representative should be 
provided with a supplemental statement 
of the case, and provided with an 
appropriate time for response.  The 
case should then be returned to the 
Board for further appellate review.

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 Court for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 
U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).



______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs