Citation Nr: 1301518 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-17 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for bilateral carpal tunnel syndrome. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to June 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for service connection for a low back disability and bilateral carpal tunnel syndrome. The issue of service connection for a mid-back disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran does not have a low back disability. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has bilateral carpal tunnel syndrome of the hands that is related to service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002). 2. Bilateral carpal tunnel syndrome was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify a Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). By letter dated June 2006, the RO provided notice to the Veteran regarding what information and evidence were needed to substantiate her claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter advised the Veteran of how the VA assigns a disability rating and an effective date, and the type of evidence which impacts such. Duty to Assist The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, VA medical records, and the testimony of the Veteran at a hearing before the undersigned. The Board acknowledges the Veteran has not been afforded a VA medical examination to obtain an opinion regarding the etiology of the disabilities at issue. Based on the evidence in this case, the Board finds that an examination is not necessary. As is discussed in greater detail below, there has been no demonstration of any event in service as to which a low back disability or bilateral carpal tunnel syndrome may be linked, so as to warrant a VA examination with clinical opinion as to a possible relationship between any current disorder and military service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion occurs when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). In this case, the service treatment records are negative for any complaint or finding involving the low back or carpal tunnel syndrome in service or for many years thereafter. As the record does not establish the occurrence of an event in service, to which any current low back disability or carpal tunnel syndrome may be related, a VA examination is not warranted. As discussed above, the appellant was notified and made aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by submitting evidence and providing testimony. Thus, she has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). 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 disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). The Veteran asserts service connection is warranted for a low back disability and for bilateral carpal tunnel syndrome. During the hearing before the undersigned, the Veteran testified her job as a mechanic in service involved a lot of lifting and she used her wrists a lot. She acknowledged she was not treated while in service for low back complaints or for carpal tunnel syndrome. The only pertinent reference in the service treatment records shows the Veteran injured her left hand when she hit it on the corner of a muffler in March 1977. An examination revealed range of motion was within normal limits, except when "D4 and D3" were moved, and the paid radiated through the carpals. There was slight tenderness over the carpals. X-rays of the hand and fingers looked normal. The impression was bruise of the left hand. VA outpatient treatment records show that following an electromyogram in January 2005, conservative treatment with a carpal tunnel syndrome splint to the right hand was recommended, as was a consultation to the hand clinic for a surgical evaluation. Carpal tunnel syndrome was assessed following an orthopedics surgery consultation in February 2005. The service treatment records are negative for complaints or findings concerning the low back. The Board acknowledges the Veteran claimed during the October 2012 hearing that she had problems with her back while in service, but that she did not go to sick call because she was afraid she would have been put out of service. The VA outpatient treatment records fail to show the Veteran has reported any low back problems or that she has been treated for such complaints. The record contains no diagnosis of a low back disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the United States Court of Appeals for Veterans Claims noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. As noted above, the record fails to establish the Veteran has a low back disability. Since the Veteran does not have a low back disorder, service connection for this disability may not be granted. With respect to the claim for service connection for bilateral carpal tunnel syndrome, the Board concedes the Veteran sustained an acute injury to the left hand in March 1979. Although an examination at that time demonstrated pain and tenderness over the carpals, it was concluded she had a bruise. There is no further reference for the remaining three years she was in service of any complaints or findings concerning the left hand, and clearly there is no record of any complaints associated with carpal tunnel syndrome of either wrist. The Board observes that carpal tunnel syndrome was initially documented more than 22 years following the Veteran's separation from service. There is no clinical evidence linking this disability to service. The Board also acknowledges the assertions of the Veteran that she has a low back disability and carpal tunnel syndrome, and that these conditions are related to service. However, as a lay person, she is not competent to diagnose any such disability, or render an opinion as to its cause or etiology, as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Although the Veteran is competent to testify as to the fact she has a low back disability and carpal tunnel syndrome, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the Veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnosis or causation competent. The Board concludes, therefore, that the medical findings are of greater probative value than the Veteran's allegations regarding the existence of a low back disability, or the etiology of bilateral carpal tunnel syndrome. Accordingly, the Board finds the preponderance of the evidence is against the claim for service connection for a low back disability or bilateral carpal tunnel syndrome. In reaching the above conclusions, 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 in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a low back disability or for bilateral carpal tunnel syndrome is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs