Citation Nr: 1016972 Decision Date: 05/06/10 Archive Date: 05/19/10 DOCKET NO. 08-10 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral carpal tunnel syndrome (CTS). REPRESENTATION Appellant represented by: Lisa A. Lee, Attorney ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from February 1979 to November 1986, and from November 1986 to December 1988. A DD Form 214N also shows a prior active duty period of service of 11 years and 21 days. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2006 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The Veteran's claims were remanded by the Board in August 2009. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, 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 Carpal tunnel syndrome of the bilateral hands/wrists was initially demonstrated years after service, and has not been shown by competent clinical evidence of record to be related to service. CONCLUSION OF LAW Bilateral carpal tunnel syndrome of the hands/wrists was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. See 73 FR 23353 (Apr. 30, 2008). Here, the VCAA duty to notify as to service connection claims was satisfied by way of letters sent to the Veteran in November 2005 that fully addressed all necessary notice elements and was sent prior to the initial AOJ decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the criteria for assignment of an effective date and disability rating in the event of award of the benefit sought was provided in an October 2009 letter. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained all available service treatment records and VA treatment records. The RO has also obtained records from the Social Security Administration (SSA). The Veteran has also been afforded a VA examination in connection with his CTS claim. Significantly, neither the Veteran nor his attorney has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the CTS claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, supra. With respect to each of the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims Discussion The Veteran contends that his bilateral carpal tunnel syndrome is related to various duties he performed, namely typing, Morse signaling, filing, and routing, during his active military service. See VA Form 21-526 (Application for Compensation and/or Pension), dated September 2005. Service Connection In general, a Veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Facts and Analysis Turning to the Veteran's claim for CTS of the right and left hands, his service treatment records are negative for complaints, symptoms, findings or diagnoses related to CTS of either hand. Because this claimed condition was not seen during service, service connection may not be established based on chronicity in service or continuity of symptomatology thereafter. 38 C.F.R. § 3.303; Savage, supra. The Veteran's post-service medical records are negative for complaints, symptoms, findings or diagnoses related to CTS of the right or left hand for many years after service. In fact, the first post-service (subjective) complaints are not shown until September 2005, at which time the Veteran filed his original service connection claim for CTS. There are no complaints, treatment, or diagnoses relating to CTS prior to this date. In this regard, the Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Otherwise, a private medical record dated in January 2009 lists the Veteran's "past medical history" (PMD), and indicates CTS of the bilateral hands/wrists. See Dunn Avenue Family Practice Center, Dr. Haddad, dated January 14, 2009. Likewise, a June 2009 Internal Medical Examination conducted in conjunction with the Veteran's SSA Disability claim, identifies CTS per the Veteran's history; however, upon physical examination, hand and finger dexterity were intact; grip strength was 5/5, bilaterally; and no motor deficits were noted. Thus, bilateral CTS was diagnosed, per history, only. Considering the above evidence, it could be argued that the Veteran does not have a current CTS disability at all. Indeed, such diagnoses are expressly based on the Veteran's own reported history, and not the objective medical evidence which, incidentally, shows normal motor function/grip/strength in the hands. In this regard, a medical opinion (or in this case, a diagnosis) premised upon an unsubstantiated account of a claimant is of no probative value. Swann v. Brown, 5 Vet. App. 229 (1993) (medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458 (1993) (Board is not bound to accept physician's opinion when based exclusively on recitations of claimant). Even assuming, arguendo, that the Veteran has a current disability for service connection purposes, no competent medical evidence of record relates the Veteran's claimed CTS to service. In fact, a February 2006 VA examiner concluded the opposite. Indeed, after review of the Veteran's claims folder and post-service medical records, the examiner opined that the Veteran's CTS (if found) was not due to military service. He provided the following rationale: (1) service treatment records were silent for complaints or symptoms of CTS; (2) there were no supporting documents that described CTS as a current diagnosis for the Veteran; and (3) the Veteran had submitted no other objective medical evidence to support his claim. Based on the VA examiner's sound rationale, and further considering that the record contains no contrary medical opinion, the Board finds the VA examiner's assessment to be highly probative as to the question of nexus. The Board acknowledges the Veteran's belief that his CTS is directly related to duties he performed in service. However, the Veteran's own contentions do not constitute medical evidence in support of the claim. The Veteran himself is not competent to diagnose the etiology of his own disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu, supra. See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). As a result, his assertions cannot constitute competent medical evidence that he has CTS of either wrist due to active duty. The Board is aware that 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). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the Board acknowledges that the Veteran has reported having CTS symptomatology since 1988. See IMA Evaluations, Inc., Internal Medical Examination, dated June 2009. Nevertheless, to the extent that the Veteran is able to observe continuity of CTS since service, his opinion is outweighed by the lack of pertinent findings in his service medical records and the lack of probative medical opinions in support of his claims. Simply stated, the Board finds that the service medical records (indicating no CTS in either wrist during service), post-service medical records (including no evidence of CTS for many years after service, and no evidence linking CTS of either wrist to service), and the February 2006 VA opinion (finding that CTS is not due to service), outweigh the Veteran's contentions that are unsupported by the competent medical evidence. In sum, the medical evidence demonstrates that the Veteran is not entitled to service connection for CTS of the hands/wrists. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991),Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for bilateral carpal tunnel syndrome is denied. REMAND The Veteran is also claiming entitlement to service connection for PTSD. Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in- service stressor; and credible supporting evidence that the claimed in- service stressor occurred. At the outset, the Board notes that the Veteran's stressor has been confirmed and verified by personnel records and historical evidence. Specifically, the Veteran was serving aboard the U.S.S. Stark in May 17, 1987, when it was struck by two Exocet missiles from an Iraqi Mirage fighter during the Iran-Iraq War (1980-1988). He does not claim that he was actually aboard the ship when the missile hit; rather, he has stated that he was on shore leave and that he was brought back to the ship the next day. He reported that several people he knew were killed and that he had to ride in a boat that also carried the victims' bodies. See February 2006 VA Examination. Based on the foregoing, a stressor has been verified for the purposes of establishing service connection for PTSD. With respect to the issue of current diagnosis, the Veteran was afforded a VA examination for PTSD in February 2006. At that time, the examiner determined that the DSM-IV stressor criteria were met; however, the Veteran did not meet the diagnostic criteria for PTSD. Subsequent to the February 2006 examination, the Veteran submitted a private medical record indicating a current PTSD diagnosis. See Dunn Avenue Family Practice Center, Dr. Haddad, dated January 2009. The treatment record reflects that the Veteran was struggling with "flashbacks, emotions from his past, specifically the Gulf War." The physician stated that these symptoms appeared to be related to his wife's recent heart attack. The private treatment contained no other discussion of the Veteran's verified in-service stressor, and did not otherwise relate the diagnosed PTSD to the stressor event. Based on the recent PTSD diagnosis, the Board finds that an additional medical examination and opinion is required to clarify whether the Veteran's PTSD is related to the verified stressor. The new examination must also address whether, if the Veteran has a diagnosed mental health condition other than PTSD, such other condition is related to service. See Clemons v. Shinseki, No. 07-558 (Feb. 17, 2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate mental health examination regarding his claim for service connection for PTSD. The claims folder must be made available to the examiner for review. All indicated tests, if any, should be conducted. As part of the examination report, the examiner is requested to express an opinion as to whether it is at least as likely as not, i.e., at least a 50 percent probability or greater, that (a) the Veteran has PTSD due to a specified in- service stressor, and (b) if the Veteran has a diagnosis other than PTSD, whether such other mental health disorder is related to an event, injury, or disease in service. In rendering these opinions, the examiner is requested to attempt to reconcile the various mental health diagnoses of record. A complete rationale must be provided for all opinions expressed. 2. After the above actions have been completed, the Veteran's service connection claim should be readjudicated. If, upon readjudication, the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). The AOJ should allow an appropriate period of time for response. The Veteran has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals 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. 2009). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs