Citation Nr: 1106868 Decision Date: 02/18/11 Archive Date: 02/28/11 DOCKET NO. 03-11 140 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUE Entitlement to service connection for bilateral carpal tunnel syndrome (CTS). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The Veteran had active service from July 1978 to February 1980. This appeal to the Board of Veterans Appeals (Board) arises from a January 2003 rating action that denied service connection for bilateral CTS. By decision of December 2004, the Board denied service connection for bilateral CTS. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). By February 2007 Memorandum Decision, the Court vacated the Board's December 2004 decision and remanded this case to the Board for readjudication consistent therewith. By decisions of February 2007, May 2009, and March 2010, the Board remanded this case to the RO for further development of the evidence and for due process development. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Bilateral CTS was first shown present many years following separation from service, and the competent and most persuasive medical opinions establish no nexus between the current disability and the veteran's military service or any incident thereof. CONCLUSION OF LAW The criteria for service connection for bilateral CTS are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010)) essentially includes, upon the submission of a substantially-complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify her of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, it defines the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the above criteria, the Board finds that all notification and development action needed to render a fair decision on the claim on appeal has been accomplished. An October 2002 pre-rating RO letter informed the Veteran and her representative of the VA's responsibilities to notify and assist her in her claim, including what was specifically needed to establish entitlement to service connection for CTS. Thereafter, they were afforded opportunities to respond. The Board thus finds that the Veteran has received sufficient notice of the information and evidence needed to support her claim, and has been provided ample opportunity to submit such information and evidence. Additionally, the 2002 RO letter provided notice that the VA would make reasonable efforts to help the Veteran get evidence necessary to support her claim, such as medical records (including private medical records), if she gave it enough information, and if needed, authorization to obtain them. A post-rating September 2007 RO letter specified what evidence the VA had received, what evidence it was responsible for obtaining, to include Federal records, and what evidence it would make reasonable efforts to obtain. The Board thus finds that the 2002 and 2007 RO letters cumulatively satisfy the statutory and regulatory requirement that the VA notify a claimant what evidence, if any, will be obtained by her and what evidence will be retrieved by the VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify a veteran of: (1) the evidence that is needed to substantiate a claim; (2) the evidence, if any, to be obtained by the VA; and (3) the evidence, if any, to be provided by him. As indicated above, all 3 content of notice requirements have been met in this appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided at the time that, or immediately after, the VA Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that the VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the matter now before the Board, the October 2002 document meeting the VCAA's notice requirements was furnished to the Veteran prior to the January 2003 rating action on appeal. In the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 5 elements of a service connection claim (veteran status, the existence of a disability, a connection between the veteran's service and that disability, the degree of disability, and the effective date pertaining thereto). In this case, the Board finds that the appellant was notified of the degree of disability and the effective date information in the September 2007 RO letter, and that this suffices for Dingess/Hartman. Additionally, the Board finds that all necessary development on the claim currently under consideration has been accomplished. The RO, on its own initiative and pursuant to the Board remands, has made reasonable and appropriate efforts to assist the appellant in obtaining all evidence necessary to substantiate her claim, to include obtaining available service medical records and numerous post-service VA medical records up to 2010. She was afforded VA examinations in October 2008 and November 2009, with a supplemental report in April 2010. Significantly, the Veteran has not identified, nor does the record otherwise indicate, any existing, pertinent evidence, in addition to that noted above, that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection also may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Veteran contends that her bilateral CTS is related to her military service duties repetitively typing on selectric typewriters. However, the record presents no basis for service connection for CTS in this case. The service medical records are negative for findings or diagnoses of any CTS. In May 1976, the Veteran was seen for complaints of a swollen right wrist, and gave a history of a wrist injury while wrestling. Examination showed no edema or discoloration, and the impression was wrist sprain. When seen again the next day with a 2-day history of right wrist pain, X- rays were within normal limits. The impression was radial collateral ligament wrist sprain. Examination in October 1976 after a motorcycle accident showed multiple abrasions, including to the right posterior wrist and the left medial wrist. The impression was multiple superficial abrasions, and the Veteran was returned to duty. The upper extremities were normal on January 1980 separation examination. Post service, the Veteran had no wrist complaints on March 1980 VA general medical examination, and examination showed no evidence of loss of range of motion, injury, or other abnormality of the muscles, joints, or tendons. Range of motion of the extremities was intact. On neurological examination, coordination and sensation were intact. No wrist disability was diagnosed. On June 1994 VA outpatient examination, the veteran complained of aching, pain, and stiffness in the hands and right firearm. There was no nexus to military service, and no diagnosis of CTS. The first objective demonstration of CTS was that found over 20 years post-service on March 2000 VA outpatient examination and April 2000 VA electromyographic and nerve conduction velocity studies, but there was no history or medical opinion linking the veteran's bilateral hand numbness and tingling to military service or any incident thereof. The Veteran subsequently underwent bilateral carpal tunnel release in January 2001. In October 2002, the VA physician who performed the veteran's 2001 bilateral carpal tunnel release noted her long history of wrist and hand problems which had their origin in military service, when she did much typing on older typewriters which required greater force on the keys than a modern typewriter. He also noted that her current job was aggravating this condition. On October 2008 VA examination, the physician reviewed the claims folder including the service medical records and post-service VA records, and noted the 1993 onset of the veteran's stiffness, swelling, and numb, weak, painful wrists that subsequently grew progressively worse. She also gave a history of stress or strain as a court reporter in military service. After examination, the diagnosis was bilateral CTS, surgically repaired. The doctor noted the veteran's history of having used a manual and electric typewriter for 4 years in service, which she continued using post service. Although he noted that this type of wrist use was known to cause CTS, and that any typewriter use of any kind could aggravate CTS, the physician was unable to separate the veteran's inservice and post-service typewriter use in arriving at an opinion regarding the etiology of her current CTS. On November 2009 VA neurological examination, the Veteran gave a history of having worked as a legal secretary for 4 years typing briefs on manual and electric typewriters in military service. She denied having experienced any hand/wrist pain, numbness, tingling, or weakness in service. She gave a history of possible wrist sprain a few times before the onset of CTS, but no wrist fractures. Post service, she worked as a receptionist and did some typing for approximately 1 year, followed by student status and working in property management for the next 2-3 years, both of which involved considerable work on an electric typewriter. She gave a history of the onset of finger pain and numbness in approximately 1984, some 3 years post service, during the course of her property management job duties. After examination, the diagnoses included bilateral CTS. The physician noted that certain occupational activities involving repetitive wrist flexion/extension such as typing or mechanic work could certainly predispose a person to develop CTS, and that in a minority of cases, CTS developed without any clear causative etiology. The primary issue which indicated that there was less than a likely causative relationship between the veteran's inservice typing and the subsequent development of CTS was the 3-year post-service time gap between separation from service and the onset of her CTS symptoms. In addition, she continued to type after separation from service during the course of various jobs, and she was actually doing some typing in 1984 as a civilian when her CTS symptoms began. Assuming that there was no evidence of CTS symptoms in service or documentation of structural changes in the wrist by imaging or orthopedic examination in service, the physician opined that it was less than likely that there was a causative link between the veteran's inservice typing and the subsequent development of CTS. On November 2009 VA orthopedic examination, the physician reviewed the claims folder and noted the veteran's history of the onset of hand symptoms in the late 1980s or early 1990s. He noted medical documentation of hand and forearm pain and stiffness in June 1994, and that, on November 2009 VA neurological examination, the Veteran had reported a history of the onset of hand pain, tingling, and weakness in approximately 1984. The Veteran stated that she could not state with certainty whether she had such symptoms when she left military service in 1980. The examiner's review of the service medical records revealed no documentation of complaints of CTS. He noted a right wrist sprain after wrestling in May 1976, wrist abrasion after a motorcycle accident in October 1976, no complaint of CTS on 1980 separation examination, and the October 2002 VA physician's report correlating the veteran's wrist and hand problems with her service activities. The current examiner noted the veteran's work history of doing a significant amount of typing on a selectric typewriter in military service, and working as a legal secretary for about a year post service. After examination, the diagnosis was residual bilateral CTS symptoms, status post bilateral carpal tunnel release. The doctor noted that significant repetitive activities could be a risk factor toward the development of CTS, but that in these cases the CTS would often develop during the time of the repetitive activity. In this case, there was evidence that the Veteran did much repetitive activity, typing, in military service, but she did not develop any symptoms of CTS until a significant amount of time after separation from service. As noted on the November 2009 VA neurological examination history, this was at least 3 to 4 years post service, and by the history obtained on current examination, it was over 10 years post service. The Veteran first sought medical attention for significant complaints in 1994, some 14 years post service. On that record, the physician opined that it was less than likely that the veteran's current CTS was directly related to any activities of her military service, including the use of a selectric typewriter or the documented minor wrist trauma. In an April 2010 addendum to his November 2009 VA neurological examination report, the physician stated that he reviewed the claims folder and that the Veteran was not diagnosed with CTS until over 19 years after separation from service. He also noted that she had reported the onset of CTS symptoms in 1984, 4 years after completing her typing duties in service. He noted that CTS should develop during the course of repetitive activities such as typing, not several years later, as the Veteran claimed. On that record, the doctor opined that it was less than likely that the veteran's inservice typing duties caused her CTS, since there was no objective evidence that CTS symptoms began during her typing activities in service. As indicated by the veteran's history of the onset of CTS symptoms in 1984, the delay of 4 years after her inservice typing activities ended and she left military service made it less likely that her CTS was caused by her inservice typing duties. In reaching the conclusion that the most persuasive evidence is against the claim for service connection for bilateral CTS, the Board accords great probative value to the 2009 and 2010 VA physicians' conclusions that it was less than likely that the veteran's CTS was caused by or a result of her inservice typing activities. Those opinions were arrived at after thorough and comprehensive reviews of the claims folder containing service and post-service medical records and the veteran's actual medical history, and current examinations of the Veteran and consideration of her military and post-service occupational history. See Nieves-Rodrigues v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims folder was reviewed). Thus, the Board finds the 2009 and 2010 VA physicians' findings, observations, and conclusions to be dispositive of the question of service connection for bilateral CTS, and that these most persuasive, expert medical observations and well-reasoned opinions militate against the claim. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on an examiner's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). In reaching this determination, the Board has also considered the October 2002 VA physician's correlation of the veteran's CTS with her long history of wrist and hand problems which had their origin in military service, when she did much typing on older typewriters which required greater force on the keys than a modern typewriter. However, in linking the veteran's CTS to her typing in military service, there is no indication of what, if any, pertinent medical records the doctor reviewed in arriving at such conclusory nexus without explanation. There is no evidence that he ever reviewed the claims folder with the service medical records, or was aware of the veteran's subsequent recorded contradictory history wherein she first dated the onset of CTS symptoms to 1984, some 4 years post service during the course of her property management job duties, and later to a point in time some 10 years post service. Thus, the Board finds that the October 2002 VA medical report does not provide persuasive support for the veteran's claim that her current CTS is related to her inservice typing activities. The Board is also required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition to the medical evidence, the Board has considered the appellant's assertions; however, such do not provide a basis for allowance of the claim. While the appellant may believe that her CTS is related to her inservice typing activities, the Board has determined that the most persuasive medical evidence does not support such contention. The Board emphasizes that the appellant is competent to offer evidence as to facts within her personal knowledge, such as her own symptoms. However, medical questions of diagnosis and etiology are within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layman without the appropriate medical training or expertise, the appellant is not competent to render persuasive opinions on medical matters such as the etiology of her currently-diagnosed CTS. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge); Layno, 6 Vet. App. at 469-70. In addition, the Board finds that the veteran's statements regarding the military service etiology of her current CTS are not credible. Although the service medical records document wrist complaints related to a wrestling sprain and motorcycle accident abrasions, the separation examination showed normal upper extremities, and there was no diagnosis of CTS in service. Moreover, the Veteran claimed no CTS in her original February 1980 claim for VA disability compensation shortly after separation from service, and she had no wrist complaints or diagnosed diagnosed wrist disability on March 1980 VA examination. In fact, she filed no claim for CTS until September 2002, over 22 years following discharge from service. When CTS was first diagnosed in 2000, the Veteran gave no history relating it to military service or any incident thereof. The October 2008 examining VA physician noted the veteran's history of the onset of stiffness, swelling, and numb, weak, painful wrists in 1993, some 13 years post service. The November 2009 VA neurological examiner noted the veteran's history of the onset of finger pain and numbness in approximately 1984, some 3 years post service, during the course of her property management job duties. The November 2009 VA orthopedic examiner noted the veteran's contradictory history of the onset of CTS symptoms a significant amount of time after separation from service: by one account, at least 3 to 4 years post service, and by another account, over 10 years post service. Given the abovementioned persuasive 2009 and 2010 VA medical opinion evidence, the appellant's claims history, and the appellant's contradictory history with respect to the claimed date of onset of CTS symptoms, the Board, as fact finder with authority to place probative weight on certain aspects of the record that it finds persuasive, finds that the Veteran is not credible to the extent that she claims that her current CTS is related to or was caused by her inservice typing activities. Caluza v. Brown, 7 Vet. App. 498, 510-11 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of witness testimony). For all the foregoing reasons, the Board finds that the claim for service connection for bilateral CTS must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for bilateral CTS is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs