Citation Nr: 1303453 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-15 191A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for left carpal tunnel syndrome. 2. Entitlement to service connection for right carpal tunnel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to June 1989. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision by the Columbia, South Carolina Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for bilateral carpal tunnel syndrome. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either are duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT Bilateral carpal tunnel syndrome diagnosed many years after service did not manifest during service and was not caused by service duties including extensive typing. CONCLUSIONS OF LAW 1. Left carpal tunnel syndrome was not incurred or aggravated in service. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Right carpal tunnel syndrome was not incurred or aggravated in service. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran essentially contends that bilateral carpal tunnel syndrome arose during his service, or became manifest after service but as a result of his service duties. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2011). The Court has stated that, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (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. See Savage, 10 Vet. App. at 495-96; Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The Court has indicated that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. On the February 1974 medical examination of the Veteran for entrance into service, the examiner did not report any abnormality of either upper extremity. In November 1974, the Veteran received outpatient treatment for injury of the musculature of the right lateral forearm. The treating clinician's impression was contusion. In January 1975, the Veteran was seen for a pulled muscle in the right shoulder. In April 1979, he received treatment for warts on his left wrist and right hand. In September 1979, he was treated for an infected laceration of the right fourth finger. In an October 1988 medical history, the Veteran reported having bursitis in his right shoulder. On examination in October 1988, the examiner checked normal for the condition of the Veteran's upper extremities. In a January 1989 medical board, the Veteran reported a history of intermittent bilateral shoulder pain, brought on by heavy lifting and strenuous physical activities. He indicated that the pain had been diagnosed as bursitis. The examiner's diagnoses included recurrent bilateral shoulder bursitis. In June 1989, the Veteran filed a claim for service connection for multiple disorders, including disorders of the knees, shoulders, and other musculoskeletal areas. The claim was silent with regard to the wrists and hands. Records of VA outpatient treatment of the Veteran reflect that in March 1995 he reported having problems with his hands. In September and November 1995, he stated that he had pain and numbness in his right elbow. On x-rays in September 1995, the Veteran's cervical spine, left shoulder, and right elbow each appeared normal. From 1995 forward, clinicians prescribed medication for pain in the Veteran's knees and other joints. In August 1998, a VA clinician indicated that the Veteran had rheumatoid arthritis. In November 1998 and February 1999, the Veteran reported ongoing multiple joint pain. In VA treatment in March and July 2000, the Veteran reported pain in his back, neck, arms, elbows, hands, knees, and right hip. In February 2001, he related pain in his knees and right arm. In April 2002, he reported pain in his neck, back, knees, left elbow, and both hands. In March 2003, he indicated that he had pain in his knees and hands. In December 2005 he reported bilateral knee pain, bilateral upper extremities pain, and pain in the right arm from the elbow through the hand, with numbness in the fingertips. In January 2007, the Veteran filed a claim for service connection for bilateral carpal tunnel syndrome. He reported that during service his duties were as a clerk typist and administrative specialist. He contended that repetitive activities over a long period in service led to his carpal tunnel syndrome. Private treatment notes from February 2007 reflect the Veteran's reports of bilateral carpal tunnel syndrome symptoms for "quite some time," with intolerable symptoms and impairment in 2006 and 2007. It was noted that bilateral carpal tunnel syndrome was diagnosed by nerve conduction study. The Veteran underwent carpal tunnel decompression surgeries on the left in March 2007 and on the right in May 2007. In April 2007, B. C. W., M.D., Ph.D., a private neurologist who treated the Veteran, wrote regarding the Veteran's VA claim, as follows: He, however, was separated I think back in 1988 or 1989, so it has been 18-19 years or so. It is hard for me to imagine that this has been going on for quite that long without being worse than it was. It is possible that maybe it got started back then because he has been doing kind of the same work at the computers and everything since that time, but it is still kind of difficult to say for certain that it did or didn't start. That probably would depend upon what kind of documentation he can produce regarding symptoms that he had during that time. In the December 2008 DRO hearing, the Veteran stated that his duties over his fifteen years of service included extensive typing, initially using manual typewriters. He reported that in his last three or four years of service he experienced soreness in his forearms and tingling in his fingers and hands. He indicated that he did not seek treatment for symptoms in his arms and hands, but that he was on daily medication for pain in his knees. He asserted that the pain medication masked the pain and other symptoms in his arms and hands. The Veteran reported that after service he held employment in offices and in restaurant management, and for VA as a claims examiner and field examiner. He stated that he experienced numbness in his hands. He indicated that for a number of years he had treatment for serious problems with his knees, and did not seek treatment for the numbness in his arms and hands. He stated that a Dr. M. had been his primary care physician since 1999 or 2000. He related that when he sought treatment for his upper extremities, in 2006, bilateral carpal tunnel syndrome was diagnosed. He stated that in 2007 he had surgery to address the carpal tunnel syndrome. He reported that impaired function in his hands caused difficulty turning pages and driving for prolonged periods, and caused problems in his claims examiner and field examiner jobs. In a January 2009 statement, the Veteran wrote that he typed continually during his 1974 to 1989 service, using manual typewriters until the late 1970s, electric typewriters until the early 1980s, and then computer keyboards. He reported that through most of his service he was on pain medication to address knee disorders. He stated that when he had stomach problems and discontinued pain medication, he experienced pain and inflammation in his arms and hands. He expressed a need for a medical opinion as to the possibility that the medication taken for knee pain had masked the pain and numbness in his arms and hands. In March 2009, R. M., M.D., opined that the Veteran's "severe tennis elbow is as likely as not due to repetitive motion from his duties in the active service as a typist." Dr. M. added that the Veteran's "long-term use of anti-inflammatory drugs ... could have masked inflammation." VA outpatient treatment notes from May 2009 reflect that the Veteran had bilateral carpal tunnel syndrome status post surgery. The Veteran reported intermittent worsening of carpal tunnel pain. A treating clinician recommended wrist support, and the Veteran was measured for bilateral carpal tunnel splints. In a May 2009 statement, the Veteran indicated that he did not notice the pain and numbness in his arms and hands until 1992 or 1993, when he stopped taking anti-inflammatory medication for his bilateral knee disorder. In September 2009, the Veteran saw Dr. W. for evaluation and management of pain in his hands. Dr. W. wrote: He has been in clerical work all his life. He used to work for the Army and now he works for the VA. He has been trying to get his VA pension increased. Again, he didn't really start having complaints until after he left the VA but during the time he was at the VA he was taking a great deal of Motrin because of the pain in his knees. The Motrin could have considerably caused the carpal tunnel syndrome to be clinically significant. Again, this is quite likely that the carpal tunnel actually started when he was in the Army. In VA outpatient treatment in September 2009, the Veteran reported that his wrists were getting worse. In December 2009, it was noted that the Veteran had ongoing chronic pain in his forearms and hands. In October 2009, Dr. W. wrote that it was at least as likely as not that the Veteran's carpal tunnel syndrome was caused by his long term clerical employment with the Army and then with the VA. Dr. W. stated that the Veteran's carpal tunnel syndrome "undoubtedly started while he was in the Army." In February 2010, the Veteran asserted that Drs. M. and W. endorsed that high dose Motrin he took during service for knee pain would have masked the initial symptoms of bilateral carpal tunnel syndrome. The Veteran had a VA medical examination in June 2010. The examiner reported having reviewed the Veteran's claims file. The Veteran reported onset in 2006 of bilateral symptoms of wrist and hand pain and finger numbness. He reported that presently he had bilateral wrist weakness and pain, aggravated by prolonged driving, extended keyboarding, lifting or carrying heavy files, or pushing carts. He indicated that he wore braces most of the time. Examination revealed normal handgrip strength bilaterally. In each upper extremity there was decreased pain sensation in the fifth digit and palm to above the wrist. A Phalen test was positive and a Tinel test was negative. Bilateral wrist x-rays did not show any abnormality. The examiner provided a diagnosis of bilateral carpal tunnel syndrome with history of release surgery. The examiner provided the opinion that it was less likely than not that the carpal tunnel syndrome was caused by or a result of his active duty. The examiner explained that there were no documented complaints during active duty, there was no evidence of carpal tunnel syndrome until several years after service, and that diagnosis of carpal tunnel syndrome was several years after service. VA outpatient treatment notes from June 2010 reflect that the Veteran used braces on both wrists. In June, July, and September 2010, the Veteran had private evaluation and treatment for rheumatoid arthritis. He reported pain in his wrists, knees, ankles, and feet. In a September 2010 letter, a United States Office of Personnel Management official stated that due to bilateral carpal tunnel syndrome the Veteran was disabled for his position as a Veterans Service Representative. In private treatment in January 2011, it was noted that the Veteran had carpal tunnel syndrome, rheumatoid arthritis, and bilateral knee disability. In July 2012, the Board requested a medical expert review and opinion regarding the Veteran's case. The Board asked that a neurologist provide an opinion as to whether it is at least as likely as not that the Veteran's current bilateral carpal tunnel syndrome was caused by or incurred in active service from 1974 to 1989. In August 2012, S. K., M.D., the Assistant Chief of Neurology of a VA Health Care System, Palo Alto, reported having reviewed the Veteran's claims file. Dr. K. described the Veteran's medical history in detail. Dr. K. stated the impression that the Veteran had bilateral carpal tunnel syndrome in 2006, treated by decompression surgeries in 2007. Dr. K. noted that after the surgeries the results of follow-up neurological testing of the upper extremities were normal. Dr. K. opined that the normal test results after the 2007 surgeries made it unlikely that ongoing symptoms in the Veteran's upper extremities can be attributed to carpal tunnel syndrome. Dr. K. concluded that is more likely that ongoing pain in the Veteran's upper extremities is due to rheumatoid arthritis. Dr. K. wrote, "Motrin would not be expected to suppress all evidence of carpal tunnel syndrome for 17 years." She explained that high dose Motrin treatment could mask pain, but would not mask numbness, tingling, or weakness. She further explained: Even if the CTS were still present now, the veteran's work as a typist in service was still too far removed from the onset of his symptoms. It is relevant that the patient went on to work for another 11 years typing and doing other fine motor tasks, while performing his job for the VA. While it is appropriate to have him be medically disabled through the VA, there is no evidence that the onset of his symptoms occurred in service, or would have occurred in service if Motrin was not being taken. It is instead likely that his CTS began while working for the VA. Thus, to summarize, it is LESS LIKELY THAN NOT that [the] patient developed CTS while in service. The Veteran's service medical records do not contain reports of chronic or recurrent pain, numbness, or tingling in his forearms, wrists, or hands. There is no contemporaneous evidence that the Veteran experienced such symptoms in the years immediately following service, providing more evidence against this claim. The earliest record of such symptoms is from 1995, when the Veteran told a VA clinician that he had problems with his hands. Years later, in his 2008 hearing, the Veteran stated that soreness and tingling in his forearms and hands occurred during the last three or four years of his service. During service and since, the Veteran has been competent to report and describe the symptoms he experiences. The service medical records are more likely to be accurate regarding his symptoms during service, however, than are the Veteran's later statements, which rely on recollection of his experiences about twenty years earlier. His own statements to VA after service citing to other problems, but not this problem, provides more factual evidence against his claim. The Veteran contends that he would have experienced forearm, wrist, and hand symptoms during service if such symptoms had not been masked by high doses of Motrin that he took for his chronic bilateral knee pain. The primary care physician Dr. M. found such masking possible. While the Board would not dispute the fact that it is "possible", the standard of "possibility" (that it is not "impossible") is not the standard the VA uses. The critical question is whether it is as likely as not (50% or greater) rather than whether it is possible (0% chance - which the Board would never contend) or possible (1% chance or greater, which is simply not the standard) Further, Dr. M. apparently relied, however, on the history that the Veteran provided. There is no indication that Dr. M. reviewed the Veteran's medical records. Dr. W. indicated in 2007 that the Veteran's current condition seemed inconsistent with a history of carpal tunnel syndrome all the way back to his service. Later, in 2009, Dr. W. endorsed service origin of current carpal tunnel syndrome. The opinions from Dr. W. are mixed as to the question of service origin of carpal tunnel syndrome. His statements do not indicate which if any of the Veteran's medical records he reviewed. The weight of Dr. K.'s opinion is enhanced by her review and discussion of service and post-service medical records, and her thorough and well-explained analysis, which the Board finds highly probative. As a result, her opinion against the likelihood that any current carpal tunnel syndrome began in service is more convincing than Dr. M.'s and Dr. W.'s opinions supporting such a history, making it less likely that this disability is related to service based on the best medical evidence, which has been reviewed in detailed. Dr. K also convincingly explained, based on the Veteran's medical records, that the current symptoms in the Veteran's upper extremities may not be from carpal tunnel syndrome. Beyond the above, the claim of service origin is undermined by the lack of contemporaneous complaints of forearm, wrist, or hand symptoms during or soon after service or for years after, notwithstanding the Veteran's theory that the problem was somehow masked constantly by medication. In this regard, the Board finds it factual implausible (less likely than not) that the use of medication would mask from the Veteran himself a disability for years, while at the same time not masking other problems the Veteran clearly noted in June 1989 (a list that was highly detailed, providing factual evidence against his current that he has had this problem since service). The Veteran's own knowledge of how to file a claim with VA, clearly noted with his application of June 1989, undermines his current contention that he has had this problem since he was discharged from service. The Veteran's carpal tunnel syndrome was diagnosed many years after service, after the years of clerical duties in service were followed by more years of post-service clerical employment. Overall, the preponderance of the evidence is against any current carpal tunnel syndrome having begun during service or as a result of service duties. The Board therefore denies the claims. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. 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). The notice requirements of the VCAA require VA to notify the 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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). Insufficiency in the timing or content of VCAA notice is harmless, however, 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). The RO provided the Veteran with VCAA notice in a March 2007 letter, issued prior to May 2007 rating decision that is appeal. In that letter, the RO addressed the information and evidence necessary to substantiate claims for service connection, and informed the Veteran how VA assigns disability ratings and effective dates. The Board finds that VA has made reasonable efforts to obtain relevant records, including those that were adequately identified by the Veteran. The claims files contains service medical records, post-service medical records, the transcript of a December 2008 hearing before a decision review officer (DRO), the reports of VA medical examinations, and a VA medical opinion. The Veteran was notified and aware of the evidence needed to substantiate the claims on appeal, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument and reporting for examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he 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 nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the appeal on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER Entitlement to service connection for left carpal tunnel syndrome is denied. Entitlement to service connection for right carpal tunnel syndrome is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs