Citation Nr: 1237212 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 07-06 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a neurological disorder of the left upper extremity (wrist), to include carpal tunnel syndrome. 2. Entitlement to an initial compensable evaluation (disability rating) for right wrist repetitive motion injury. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1979 to January 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In May 2010, the Veteran testified at a Board hearing held before the undersigned Acting Veterans Law Judge in Washington, DC. A copy of the transcript is of record. In August 2010, the Board remanded the issue of entitlement to service connection for a neurological disorder of the upper extremities, to include bilateral carpal tunnel syndrome, for additional development and adjudicative action. In a March 2012 rating decision, the RO granted service connection for right wrist repetitive motion injury (claimed as carpal tunnel syndrome). In a March 2012 supplemental statement of the case (SSOC), the RO continued the denial for service connection for a neurological disorder of the upper extremity (left wrist), to include bilateral carpal tunnel syndrome, thus this appeal has been returned to the Board for further appellate review. The issue of entitlement to an initial compensable evaluation for right wrist repetitive motion injury 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. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran complained of bilateral carpal tunnel syndrome during active service. 3. Symptoms of a neurological disorder of the left upper extremity, to include from a left wrist repetitive motion injury, have been continuous since separation from service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, a neurological disorder of the left upper extremity (wrist) was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Given the fully favorable decision discussed below for the issue on appeal, the Board finds that any issue with regard to VA's duty fulfill its notification and assistance requirements, found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), is moot or represents harmless error. As to additional notice regarding the effective date to be assigned, the RO will address this matter in effectuating the award. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Analysis In a December 2004 Application for Compensation and/or Pension Benefits, via a VA Form 21-526, the Veteran requested service connection, in pertinent part, for bilateral carpal tunnel syndrome. The Veteran contends that service connection is warranted for symptomatology of a neurological disorder of the left wrist which had its onset in service and has continued since separation from service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 1131. When a chronic disease is shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b); see also Savage v. Gober, 10 Vet. App. 488, 498 (1997). A "chronic disease in service" requires a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'chronic.' When the disease identity is established, there is no requirement of evidence showing continuity; however, continuity of symptomatology after discharge is required to support the claim only where the condition noted during service is not, in fact, shown to be chronic or the diagnosis of chronicity may be legitimately questioned. Id. Service connection may also be granted for any disease after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A review of the Veteran's service treatment records is silent as to any treatment or diagnosis for a neurological disorder of the left upper wrist. Nonetheless, at the time of separation from service in January 2005, a November 2004 Report of Medical Assessment, via a DD Form 2697, showed the Veteran marked her overall health is worse when compared to the last medical assessment/physical examination. With regard to this notation, the examining physician noted the Veteran's complaints of bilateral carpal tunnel syndrome since 2002. The Veteran was given a brace and exercises to control the symptoms, which she stated was controlling the symptoms but not correcting them. In November 2005, the Veteran underwent a VA examination through QTC Medical Services (QTC) in which specific history of the claimed bilateral carpal tunnel syndrome noted that symptoms occur constantly but there is no functional impairment or time lost from work. Upon physical examination of the extremities, results were normal, and no objective findings of edema of the right or left extremity was noted; range of motion of the wrists were normal with no limitations of motion after repetitive movement; and neurological examination of the upper extremities revealed motor and sensory function are normal. The VA examiner concluded that the physical examination showed negative Tinel and negative Phalen, and there was no pathology to render a diagnosis. Pursuant to a June 2008 VA QTC examination, the Veteran reported bilateral carpal tunnel syndrome which had been present for four years. Symptomatology included tingling and numbness of the fingers, and, in the fingers, generalized, difficulty typing, and daily wrist pain. Physical examination of the wrist joints revealed normal range of motion, and a neurological examination of the upper extremities showed motor and sensory function within normal limits. Following the examination, the examiner diagnosed the Veteran with bilateral wrist strain. At the May 2010 Board hearing, the Veteran testified that she started having trouble with the left wrist during service in 2003 and had problems continuously since service. Pursuant to the Board's August 2010 remand instructions, the Veteran underwent an additional VA examination for the peripheral nerves in October 2010. The Veteran reported symptoms of right wrist pain while in service and as a result she started to do more things with her left hand to compensate and symptoms have developed at the left wrist in the last couple of years. A request was made for the Veteran to undergo nerve conduction studies, and the Veteran underwent such studies in a November 2010 VA outpatient neurology consultation. A summary of findings revealed normal results and a conclusion that there was no electrophysiologic evidence of focal neuropathy across the wrist (carpal tunnel syndrome). After a review of the results from the November 2010 nerve conduction studies, the October 2010 VA examiner concluded in a November 2010 addendum report that there was no diagnosis of carpal tunnel syndrome and assessed the Veteran with repetitive motion injury of the right wrist secondary to typing. In a December 2011 addendum report, the same VA examiner noted the Veteran is currently symptomatic in both wrists and the Veteran developed symptoms on the left side after discharge from active military duty. The examiner diagnosed the Veteran with left wrist repetitive motion injury, onset after discharge from active duty in 2007-2008, and opined that the left wrist symptoms (repetitive motion injury) were not at least as likely as not having their onset in service. It is not entirely clear from the examination report why the examiner found the right wrist symptoms (now service-connected) related to service, but not the left wrist symptoms. Subsequently, a March 2012 VA medical opinion was rendered by a different VA physician who, after review of the claims file and results from the November 2010 nerve conduction studies, concluded there were no objective findings of carpal tunnel syndrome bilaterally. The Veteran is competent to report the onset of her symptomatology during service and a continuity of symptomatology since the in-service onset, and the Board finds that the Veteran's assertions of such symptomatology for a neurological disorder of the left wrist, as noted above, are credible in this case. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's more recently-reported history of continued symptoms of a neurological disorder of the left wrist during and since separation from service is consistent with the other lay and medical evidence of record. The Veteran's medical history during service revealed the Veteran's complaints of bilateral carpal tunnel syndrome since 2002, and the post-service medical evidence reflects complaints of constant symptomatology related to the upper extremities (wrists) within a year following separation from service at the November 2005 VA QTC examination. When the Veteran testified at the Board hearing and underwent VA examinations in connection with the claim on appeal, she consistently reported that the onset of such symptomatology was during service. Additionally, the Veteran filed the VA disability compensation claim for service connection for bilateral carpal tunnel syndrome in December 2004, which was within one month prior to separation from service. The Board acknowledges that in the December 2011 addendum report, the VA examiner opined that the left wrist symptoms (repetitive motion injury) were not at least as likely as not having their onset in service. However, in light of the Board's finding that the Veteran's assertions regarding the onset and continuity of symptomatology for a neurological disorder of the left wrist are credible, the Board finds the December 2011 VA medical opinion is based on an inaccurate factual history. An additional VA medical opinion was obtained in March 2012, and the Board finds there is a complete record upon which to decide the claim on appeal. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App 120 (2007); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has no probative value). For these reasons, and with resolution of reasonable doubt in favor of the Veteran, the Board finds that the Veteran has current symptoms of a neurological disorder of the left upper extremity, to include from a left wrist repetitive motion injury. The facts of this case are not markedly different than with the right wrist, which is now service connected. Her complaints of bilateral carpal tunnel syndrome during service were documented, and symptoms of a neurological disorder of the left upper extremity have reportedly been continuous since separation from service. See 38 C.F.R. § 3.303(b) (continuity of symptomatology after discharge is required to support the claim only where the condition noted during service is not, in fact, shown to be chronic or the diagnosis of chronicity may be legitimately questioned). Therefore, the criteria for service connection for a neurological disorder of the left wrist are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a neurological disorder of the left upper extremity (wrist) is granted. REMAND In a March 2012 rating decision, the RO granted service connection for right wrist repetitive motion injury and assigned a noncompensable evaluation (0 percent), effective February 1, 2005. In an April 2012 statement, the Veteran expressed disagreement with the March 2012 rating decision and specifically requested a review by a Decision Review Officer. Thus, the Board finds that the April 2012 statement can reasonably be construed as a notice of disagreement (NOD) with the March 2012 rating decision and a desire for appellate review. See Manlicon v. West, 12 Vet. App. 238 (1999). In this case, the record does not reflect that a statement of the case has yet been issued for the stated issue. Thus, the Board finds that a remand is required for the issue of an initial compensable evaluation for right wrist repetitive motion injury. Accordingly, the case is REMANDED for the following action: Issue a statement of the case to the Veteran and her representative, addressing the issue for a higher initial compensable evaluation for right wrist repetitive motion injury. The Veteran and her representative should be advised of the time limit in which he may file a Substantive Appeal. Then, only if the appeal is timely perfected, should the issue be returned to the Board for further appellate consideration, if otherwise in order. The Veteran and her representative have the right to submit additional evidence and argument on the matter 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 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. 2011). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs