Citation Nr: 1114477 Decision Date: 04/13/11 Archive Date: 04/21/11 DOCKET NO. 09-42 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence was received to reopen the claim for entitlement to service connection for right carpal tunnel syndrome. 2. Whether new and material evidence was received to reopen the claim for entitlement to service connection for left carpal tunnel syndrome. 3. Entitlement to service connection for right elbow disability. 4. Entitlement to service connection for left elbow disability. 5. Entitlement to service connection for right hand disability. 6. Entitlement to service connection for left hand disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from September 1990 to June 1996. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran's claim for service connection for bilateral carpal tunnel syndrome was denied in July 2006 on the basis that new and material evidence had not been received to reopen claims of service connection. 2. Since July 2006, competent medical evidence has been added to the claims folder, which establishes a current diagnosis of both right and left carpal tunnel/cubital tunnel syndrome. 3. Right carpal tunnel syndrome/cubital tunnel syndrome had its onset in service 4. Left carpal tunnel syndrome/cubital tunnel syndrome had its onset in service. 5. The evidence does not show and the Veteran contend that she has a separate right or left hand or elbow condition that is related to or had its onset in service. CONCLUSIONS OF LAW 1. The July 2006 rating decision denying the Veteran's claim for entitlement to service connection for carpal tunnel syndrome is final. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a) (2010). 2. Evidence received since the July 2006 rating decision is new and material; the claims of entitlement to service connection for right and left carpal tunnel syndrome are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a) (2010). 3. Right carpal tunnel syndrome/cubital tunnel syndrome was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). 4. Left carpal tunnel syndrome/cubital tunnel syndrome was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). 5. A separate right or left hand or right or left elbow disability was neither incurred in nor aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Board observes that VA fulfilled its duties to notify and assist the Veteran. Sufficient evidence is available to reach a decision and the Veteran is not prejudiced by appellate review at this time. In January 2009, prior to the rating decision under appeal, VA sent the Veteran a letter informing her of the evidence necessary to establish her claims. She was notified of what was necessary to establish her service connection claim, what evidence she was expected to provide, and what VA would obtain on her behalf, as well as the type of evidence necessary to establish an effective date and a disability rating. The letter satisfied VA's notice requirement. 38 C.F.R. § 3.159(b)(1) (2010); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Board observes that the January 2009 letter did not provide notice as to the evidence necessary to reopen a previously denied claim, however, since this aspect of the Veteran's claim was granted in full, the Board finds that error harmless. VA also has a duty to assist the Veteran in substantiating her claims under 38 C.F.R. § 3.159(c), (d) (2010). Here, the Veteran's statements, her service treatment and post-service VA and private treatment records have been associated with the claims folder. The Veteran was given the opportunity, but has not notified VA of any additional available relevant records with regard to her claims. The Board observes that the Veteran was not afforded a VA examination as to her claims. In this case, the Veteran clarified that she is essentially seeking service connection for a single disease process, known as carpal tunnel syndrome. See hearing transcript at page 6 and 7. The decision, below, grants service connection in that regard, and explains that the evidence shows that separate disabilities do not exist that would warrant separate awards. An examination is not necessary as the Veteran herself clarified the basis of her claim as for the single disability, which his granted below. The Veteran was also afforded a Board hearing in March 2010 and the transcript is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2010) requires the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Acting VLJ discussed the necessary evidentiary requirements and potential helpful evidence with the Veteran. In fact, the Veteran was able to provide pertinent evidence as to the current nature of her disability, and clarify that her claim was for a single disease process, rather than for separate disabilities. See hearing transcript at page 6 and 7. This hearing testimony was used, below, in the grant for that disability. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), or has identified any prejudice in the conduct of the hearings. By contrast, the hearings focused on the elements necessary to substantiate the claims and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims for VA benefits. As such, the Board finds that, consistent with Bryant, the undersigned Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board can adjudicate the claims based on the current record. New and Material Evidence The Veteran is seeking to reopen her claim for entitlement to service connection for carpal tunnel syndrome, also claimed as ulnar nerve entrapment and a bilateral wrist disability. A claim that has been denied, and not appealed, will not be reopened and considered on the same factual basis. 38 U.S.C.A. §§ 7104(b), 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a). In this case, the Veteran was originally denied service connection for carpal tunnel syndrome by way of the September 1996 rating decision, which she did not appeal. The claim was again denied by way of the July 2006 rating decision, which became final in July 2007, because the Veteran did not file a notice of disagreement (NOD). She filed a statement in September 2008 attempting to reopen the claim, describing her disability as "carpal tunnel like symptoms" in her hands, wrists, and elbows. Thus, she was attempting to reopen a previously denied claim. The exception to the rule of finality provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the claim was denied due to the absence of evidence showing a confirmed diagnosis of carpal tunnel syndrome. See July 2006 rating decision. Since July 2006, reports from a June 2008 VA nerve conduction study and an August 2008 VA orthopedic examination were submitted into the record. These reports show "longstanding" carpal tunnel syndrome, and bilateral cubital tunnel syndrome, respectively. Thus, new evidence added to the file since the last final decision establishes a current diagnosis of the claimed disability. The evidence thereby relates to an unestablished fact necessary to substantiate the claim, and because this evidence was not in the claims folder at the time of the July 2006 rating decision, it is both new and material to the claim. Accordingly, the claim is reopened. Service Connection The Veteran filed a statement in September 2008 indicating that she is "filing a claim for [her] hands, wrists, and elbows." She described her on and off treatment for "carpal tunnel like symptoms." At her March 2010 hearing, the Veteran noted her carpal tunnel symptoms, and when the undersigned Acting VLJ offered hearing time to move on to the separate issues relating to the hands or elbows, the Veteran and her representative made clear that all issues, although separated into three issues by the RO, were a single disease process. See hearing transcript at pages 6 and 7. Also, at the outset of the hearing, the Veteran confirmed that she did not intend on filing bilateral hand and elbow claims, but that she wished to file for carpal tunnel syndrome and ulnar nerve entrapment. See hearing transcript at page 2. Thus, the Board is discussing the issue of entitlement to service connection for carpal tunnel syndrome, with subsequent analysis to clarify whether service connection is warranted for any separate disabilities related to the hands, or elbows, because those claims were also perfected on appeal. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Regulations also provide that service connection may 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Further, the Court has held that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this case, symptoms of carpal tunnel syndrome are noted in service, and in outpatient treatment records ever since, with a current medical diagnosis confirming the diagnosis and its "longstanding" status. For these reasons, described with more particularity below, the Veteran's claim is allowed. In April 1996 during service, she was treated for "carpo tunnel problem," with reported of right hand numbness, and numbness and tingling in all four fingers. "Mild carpal tunnel syndrome" was diagnosed. She received follow up treatment on the right the following month, as well as treatment for "CTS on L" in May 1996. Following her separation from service, symptoms continued. A July 1996 VA examination report confirms her continued complaints of numbness in the right hand and fingers, along with right wrist pain, and a worsening grip. The examiner suggested nerve conduction study to rule out carpal tunnel. She was given a right wrist x-ray in August 1996, which was noted as normal. The results of a nerve conduction study of the right and left was normal, although numbness of the right hand and fingers and wrist pain were noted in the report. The Veteran sought ongoing treatment related to right wrist pain. See September 1996 handwritten notes. By December 1996, the Veteran was reporting right wrist and elbow pain, and handwritten notes continue to suggest that carpal tunnel needs to be ruled out. Right wrist pain is noted in a November 1997 report, without notation of an associated diagnosis. In January 1997, a VA physician again reported that the Veteran's right wrist pain has continued. The Veteran later sought the care of a private physician. In December 1999, her doctor noted "hand and forearm problems, right greater than left," with "pain in the forearms that radiates down into the ulnar side of the wrist" and with "numbness in the small finger, ring finger and middle finger." A January 2000 report suggests that she had bilateral wrist tendonitis that was responding well to treatment. The Veteran's symptoms continued and she was again x-rayed in January 2006. The VA x-ray report notes "bilateral symptoms of carpal tunnel for many years," although the x-ray itself is noted as normal. In February 2006, a VA orthopedic consultation report shows a diagnosis of bilateral carpal tunnel syndrome. Although an EMG/NCV study failed to confirm carpal tunnel, by March 2006, the Veteran's VA physician prescribed "bilateral wrist splints for cts." In June 2008, the Veteran was again afforded a nerve conduction study, which was noted a "an abnormal study" with "evidence of mild bilateral median nerve entrapment neuropathy across flexor retinaculum i.e. Carpal Tunnel Syndrome." The assessment was as follows: "Pt seems to have severe, long standing case of CTS. She also has element of ulnar nerve entrapment." In July 2008, the Veteran described pain in her elbows, hands, arms and shoulders. An August 2008 orthopedic consultation report shows that the Veteran described a long history of "bilateral elbow pain right worse than left with numbness and tingling to her fingers." She reported the pain being so great that she is "frequently awoken at night with throbbing pain to her elbows with radiation down into her forearms and hands." Physical examination revealed full range of motion of the elbows and wrists, with negative Tinel's and compression at bilateral wrists, but positive Tinel's of the bilateral elbow, right worse than left. The examiner noted the EMG study showing decreased conduction across the right elbow. The diagnosis at that time was bilateral cubital tunnel syndrome, right worse than left. Thus, when examined as a whole, the evidence clearly shows that the Veteran's symptoms of right and left carpal tunnel syndrome initially manifested during her active service, and that those symptoms have continued ever since, ultimately culminating in a current diagnosis of both right and left carpal/cubital tunnel syndrome. In other words, service connection is warranted for both right and left carpal/cubital tunnel syndrome based upon the continuity of symptoms existing since active service through to the present. The Board observes that the record is entirely devoid of independent diagnoses related to the right and/or left hand, and right and/or left elbow, separate from the diagnosis of carpal/cubital tunnel syndrome. Each symptom related to the hands and elbows have been associated with carpal/cubital tunnel syndrome. Thus, there is no basis upon which to grant service connection for separate disabilities related to the hands or elbows, as no current disability exists, separate and apart from carpal/cubital tunnel syndrome. ORDER New and material evidence was received to reopen the claim for entitlement to service connection for a bilateral wrist condition, to include ulnar nerve problems, tendonitis, and carpal tunnel syndrome. Service connection for right carpal/cubital tunnel syndrome is granted. Service connection for left carpal/cubital tunnel syndrome is granted. Service connection for a separate right elbow condition is denied. Service connection for a separate right elbow condition is denied. Service connection for a separate right hand condition is denied. Service connection for a separate left hand condition is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs