Citation Nr: 1104366 Decision Date: 02/03/11 Archive Date: 02/14/11 DOCKET NO. 07-31 311A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for bilateral carpal tunnel syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to November 1991, and from June 1995 to January 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in May 2007, a statement of the case was issued in August 2007, and a substantive appeal was received in October 2007. The Veteran testified at a RO hearing in May 2009 and a Board hearing in December 2010. Transcripts of the hearings are of record. FINDINGS OF FACT 1. By way of a May 2004 rating decision, the RO denied the Veteran's claim for service connection for bilateral carpal tunnel syndrome; the Veteran did not file a timely substantive appeal. 2. Certain evidence received since the May 2004 decision is new and raises a reasonable possibility of substantiating the claim. 3. The Veteran's bilateral carpal tunnel syndrome is causally related to his active duty service. CONCLUSIONS OF LAW 1. The May 2004 RO rating decision which denied the Veteran's claim for bilateral carpal tunnel syndrome is final. 38 U.S.C.A. § 7105 (West 2002). 2. Certain evidence received since the May 2004 decision is new and material; accordingly, the claim for service connection for bilateral carpal tunnel syndrome is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. Bilateral carpal tunnel syndrome was incurred in the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Following notification of an initial review and adverse determination by the Regional Office, a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. The Veteran's original service connection claim for bilateral carpal tunnel syndrome was denied by the RO by way of a May 2004 rating decision. The Veteran filed a timely notice of disagreement; and the RO issued a February 2005 statement of the case. The Veteran failed to file a timely substantive appeal. Consequently, the decision became final. 38 U.S.C.A. § 7105(c). The Board notes that the RO has not explicitly reopened the Veteran's claim. However, in June 2009 and January 2010 supplemental statements of the case, it appears that the RO readjudicated the claim on a de novo basis. Regardless of any determinations made by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (which define "new and material evidence") provide as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Second, if VA determines that the evidence is new and material, the VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The evidence on record at the time of the March 2004 rating decision included the service treatment records from the Veteran's first period of service (November 1988 to November 1991), September 2003 hospital reports from Spartanburg Regional Medical Center, and a December 2003 statement from the Veteran. The basis for the March 2004 denial was the fact that the there was no competent medical evidence that the Veteran's bilateral carpal tunnel syndrome was due to service. Evidence submitted since the March 2004 rating decision includes VA outpatient treatment records that reflect that the Veteran was diagnosed with and underwent surgery for bilateral carpel tunnel syndrome; a May 2009 VA examination report and October 2009; a March 2010 lay statement from the Veteran's spouse; and May 2009 and December 2010 hearing testimony from the Veteran. The Board notes that this newly submitted evidence is new in that it is not duplicative. Moreover, the Board finds that the lay statement from the Veteran's spouse is new and material as it was not of record in 2004 and includes information based on her knowledge as the Veteran's spouse as to the onset of carpal tunnel syndrome. Additionally, there is testimony offered by the Veteran himself which the Board finds to be highly credible in describing what symptoms he experienced during his second period of service. He reported that he experienced problems with his hands; and that he was fitted for wrist splints. He reported that his commanding officer did not approve of the Veteran wearing them during the day because they were not part of the uniform. He testified that he was diagnosed with carpal tunnel syndrome and that the examiners recommended surgery. However, since he only had two or three months until discharge, it was recommended that he have the surgery after he left the service. Since the service treatment records are not available for this period of service, the testimony of the Veteran himself his highly probative. Such evidence is new and material when considered in light of the prior final decision. Accordingly, the claim is reopened. Service Connection The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as neurological disorders, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As noted above, the RO has been unable to obtain any service treatment records for the Veteran's second period of service (June 1995 to January 2002). The Board is aware that in such a situation it has a heightened duty to assist a claimant in developing the Veteran's claim. This duty includes the search for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Board's analysis of this Veteran's claim is undertaken with this duty in mind. The record reflects, and the Board is satisfied, that the RO has made all possible efforts to locate and obtain these aforementioned records. The Veteran testified that he had problems with his hands during service and that he was issued wrist splints. He also testified that he was diagnosed with bilateral carpal tunnel syndrome and that surgery was recommended. Finally, he testified that he applied for a job in February 2003 and that he had to complete numerous questionnaires as an applicant. In a September 2003 questionnaire, he admitted that he has had numbness in his hands. He underwent a nerve pace conduction study that showed abnormal nerve pace or borderline nerve pace with clinical evidence of an active repetitive motion disorder of the hands or wrists. It was recommended that the Veteran not work at a job requiring highly repetitive motion activity and stress to the hands/wrists. The examiner noted that the Veteran reported a history of bilateral carpal tunnel syndrome that was diagnosed in 1999. The Veteran reported that he still had mild symptoms. As noted earlier, the Veteran underwent a right carpal tunnel release in May 2007; and then underwent a left carpal tunnel release in August 2007. The surgeon noted in August 2007 that the May 2007 surgery had been successful and that the Veteran had good results with the right hand. The Veteran underwent a VA examination in May 2009. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported that after he underwent the bilateral carpal tunnel releases, his right hand/wrist symptoms resolved appropriately. However, he stated that his left hand problems did not resolve; and that he is left handed. Apparently, the surgeon told him that the left hand symptoms did not resolve was because he has a cubital tunnel syndrome in addition to the carpal tunnel syndrome. Upon examination, the examiner found no muscle atrophy, weakness, sensory change, or reflex abnormalities in either hand. He stated that there was no clinical evidence of either carpal tunnel syndrome or cubital tunnel syndrome. However, he did request a nerve conduction velocity of the left ulnar and median nerve to see if there was evidence of nerve impairment. The Veteran underwent the nerve conduction velocity (NCV) in June 2009. The NCV was limited to the Veteran's left hand. Based on the NCV results, the May 2009 examiner submitted an October 2009 addendum in which he noted that the proper diagnoses are left median neuropathy distal to the wrist, moderate in degree; and left ulnar neuropathy due to cubital tunnel syndrome at the elbow, moderate in degree without associated clinical abnormalities. The Board finds that the Veteran and his spouse provided highly detailed and highly credible testimony regarding symptoms of numbness in the Veteran's hands; an in-service diagnosis of bilateral carpal tunnel syndrome; and service-issued wrist splints. The Board also notes that in 2003, the Veteran was found to have abnormal nerve pace or borderline nerve pace with clinical evidence of an active repetitive motion disorder of the hands or wrists. The disability was severe enough that he was unable to get a job requiring highly repetitive motion activity and stress to the hands/wrists. At that time (prior to the Veteran ever having filed a claim), the Veteran admitted that he had numbness in the hands and reported that he had been diagnosed with carpal tunnel syndrome in service. The record persuasively shows that the Veteran has been diagnosed with bilateral carpal tunnel syndrome. While some evidence suggests that the surgical procedure on the right writs may have alleviated some symptoms, the fact remains that the evidence persuasively shows that the Veteran has had bilateral carpal tunnel syndrome which is causally related to his service. Service connection for bilateral carpal tunnel syndrome is therefore warranted. Veterans Claims Assistance Act of 2000 (VCAA) There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). The Board notes that an RO letter in March 2007 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. ORDER New and material evidence has been received to reopen the Veteran's claim of service connection for bilateral carpal tunnel syndrome; and the Board finds that service connection for bilateral carpal tunnel syndrome is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs