Citation Nr: 1309344 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-19 619 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for variously diagnosed injury residuals involving the right upper extremity. 2. Entitlement to service connection for chronic fatigue syndrome, fibromyalgia, and residuals of Lyme's disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from July 1984 to January 1987 and from June 1989 to June 1993. She served with the National Guard from November 2001 to June 2005. She did not serve in the Persian Gulf. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2005 and February 2006 rating decisions of the RO. The Board notes that the issue pertaining to residuals of an injury to the right upper extremity was previously characterized as service connection for carpal tunnel syndrome of the right upper extremity. The Court of Appeals for Veteran Claims has held (in the context of a claim for service connection for a psychiatric disorder) that a claim for service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's right upper extremity disability has been variously diagnosed as carpal tunnel syndrome, radial tunnel, wrist tendonitis, tennis elbow, golf elbow, Guyon's canal, mild median mononeuropathy of the right wrist, lateral epicondylitis, upper extremity paresthesia, and right wrist tenosynovitis. Therefore in light of Clemons, the issue is recharacterized as reflected on the title page of this document. A review of the Virtual VA paperless claims processing system includes over 300 pages of VA progress notes primarily from 2010 to 2012. Additional records in the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. The Veteran testified at a hearing held at the RO in October 2010 before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. The Board remanded the case in January 2011, August 2011 and July 2012 for additional development of the record. In July 2012, the Board noted that the issues of service connection for an acquired psychiatric disorder; a bilateral hand condition; a wrist, arm and elbow injury residuals; and a total rating based upon individual unemployability (TDIU) by reason of service-connected disability had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board continues to refer these matters to the AOJ for appropriate action. The issue of service connection for chronic fatigue syndrome, fibromyalgia, and residuals of Lyme's disease is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran is shown to have sustained a right upper extremity injury that as likely as not caused lateral epicondylitis and wrist tenosynovitis during her period of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his residual right upper extremity disability manifested by lateral epicondylitis and wrist tenosynovitis is due to an injury that was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 U.S.C.A. §§ 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under VCAA or other law should be undertaken. However, given the results favorable to the Veteran, further development under VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In this decision, the Board grants the claim of service connection for residuals of injury to the right upper extremity. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty training (ACDUTRA) or injury incurred or aggravated by inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Under 38 U.S.C.A. § 101(22) (a) and (c) ACDUTRA means, in pertinent part, full-time duty in the Armed Forces performed by Reserves for training and full-time duty as members of the National Guard or Air National Guard of any State. 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. Analysis The Veteran contends that she incurred right upper extremity disability due to an injury sustained in connection with her National Guard service. She reports serving in the National Guard from November 2001 to January 2005 and, during active duty for training on December 12, 2002, slipping on a wet floor, whereby she twisted her body and hit her hand on the floor. An examiner indicated that the Veteran had scrapped her right hand. There is a line of duty determination for this injury. In April 2007, the Veteran reports, the doctors at Wright Patterson Air Force Base diagnosed the following disabilities regarding her right upper extremity: carpal tunnel, radial tunnel, wrist tendonitis, tennis elbow, golf elbow, and Guyon's canal. The Board notes that the Veteran is competent to relate contemporaneous medical diagnoses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Her statements are credible and consistent with the other evidence of record. In October 2010, the Veteran testified that her right upper extremity disability, diagnosed as tennis elbow, was related to her injury in December 2002. She also indicated that she had discomfort in her right upper extremity after the injury and initially did not think it was related to the fall until after she was diagnosed with carpal tunnel syndrome. The claims file contains voluminous medical evidence, to include service treatment records, VA treatment records, private medical records, and records from the Social Security Administration. The records from Wright Patterson Air Force Base in May 2004 noted that the Veteran had signs of right carpal tunnel syndrome. A June 2004 EMG showed mild median mononeuropathy across the right wrist, and x-ray studies in May 2004 showed a normal right shoulder, wrist and hand. In May 2005, the records showed symptoms of lateral epicondylitis. A September 2004 VA electrodiagnostic report (EMG) showed that there was no evidence of plexopathy, myopathy, diffuse peripheral neuropathy or other focal mononeuropathy involving the arms or legs. Nerve conduction studies were within normal limits. The VA progress notes dated in June 2005, referenced the Veteran's fall during National Guard service and showed that carpel tunnel, radial tunnel, tendonitis of the wrists, tennis elbow and Guyon's canal were related to the line of duty injury. In an opinion in April 2004, the Veteran's private chiropractor, Dr. G.M.P, concluded that the Veteran had right hand pain as the result of her fall on December 12, 2002. In September 2005, the Veteran was evaluated by her private doctor and reported having problems in her upper extremities, which had begun three years earlier when she fell in the military. She reported being told that she had multiple compressions in the upper extremities and also tendinopathy. The diagnosis was that of bilateral upper extremity paresthesias and possible carpal tunnel syndrome. In June 2007, the Veteran's private chiropractor, Dr. G.M.P., again concluded that the Veteran had pain in her right arm, wrist and elbow due to her fall in December 2002. In connection with a VA examination in February 2011, the examiner noted that the Veteran for several years after her fall in December 2002 did not have any complaints pertaining to her right upper extremity. The examiner acknowledged the private chiropractic visit in 2004, which showed that the Veteran had some right arm symptoms and was diagnosed with tennis elbow, right elbow epicondylitis and was treated with vibration therapy and physiotherapy. Thereafter, she was noted to have been diagnosed with right epicondylitis with a clinical impression of right carpal tunnel syndrome in the right wrist. The examiner noted that the Veteran fell in December 2002, whereby she only sustained a right hand scrape with no follow-up until 2004, when she had diagnostic studies that were all normal. It was noted that, while carpal tunnel syndrome was clinically mentioned, there was no evidence to support the diagnosis of tunnel syndrome in the right elbow or wrist. The examiner provided a diagnosis of right epicondylitis, otherwise known as tennis elbow, and right wrist tenosynovitis. The examiner was of the opinion that the Veteran's symptoms appeared several years after the injury in 2002 and had no bearing to that injury. The VA progress notes in June 2011 showed the Veteran had surgery for lateral epicondylitis approximately three years earlier. The examiner noted that the examination was consistent with right lateral epicondylitis. A VA progress note in October 2011 showed the Veteran had resolved right lateral epicondylitis and carpal tunnel syndrome. Having carefully considered the entire record, the Board finds the evidence to be in relative equipoise in showing that the Veteran as likely as not incurred injury residuals involving the right upper extremity during her military service. According to Charles v. Principi, 16 Vet. App. 370, 374 (2002), the Veteran is competent to provide lay evidence of a history of injury to the right upper extremity while in service. 38 U.S.C.A. § 1154(a) provides that consideration shall be given to the places, types, and circumstances of service as shown by the service record, the medical records, and all pertinent medical and lay evidence. In this regard, the Board notes that the Veteran's assertions pertaining to the injury of her right upper extremity during her ACDUTRA service in December 2002 are credible as they are consistent with the evidence of record. The Veteran's service records show that on December 12, 2002 she had ACDUTRA service in the National Guard, when she fell and injured her right upper extremity, which was evidenced by the fact that she scrapped her right hand on the floor. In accordance with Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Board further finds that the lay evidence presented by the Veteran is sufficient a continuity of symptoms after the injury during service. During testimony in October 2010, the Veteran indicated that she had had discomfort in her right upper extremity since the December 2002 injury. Furthermore, the Veteran's private chiropractor, Dr. G.M.P., in April 2004 and in June 2007 determined that there was a causal relationship between her right upper extremity condition and the injury sustained during ACDUTRA in December 2002. While the chiropractor referred to the disability as pain of the right hand, arm, wrist and elbow, in the instant case the Veteran's pain is an integral part of the underlying right upper extremity condition variously diagnosed as radial tunnel, wrist tendonitis, tennis elbow, golf elbow, Guyon's canal, mild median mononeuropathy of the right wrist, lateral epicondylitis, upper extremity paresthesia, and right wrist tenosynovitis. Therefore the Veteran's condition constitutes a disability for which service connection can be granted. See Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001). In viewing the evidence in its entirety, the Board finds that the Veteran's private chiropractor opinion establishes a causal relationship between her current disability of the right upper extremity and the injury suffered during her ACDUTRA service in December 2002. The Board assigns significant probative value to the private chiropractor's opinion as he has been providing ongoing treatment, is familiar with the Veteran's longitudinal medical history, and on two separate occasions related her right upper extremity condition to ACDUTRA service. The Board has considered the February 2011 opinion provided by the VA examiner. However, the Board finds this opinion to be of limited probative worth to the extent that the examiner presented an inconsistent factual basis in addressing the etiology of the right upper extremity disability. On the one hand, the examiner acknowledged that, following the December 2002 injury the Veteran was treated for her right upper extremity in 2004, which is over one year after the injury. On the other hand the examiner concluded that, because the Veteran's symptoms appeared "several" years after the injury in 2002, they have no bearing on that injury. The United States Court of Appeals for Veterans Claims has found that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Further, the VA examiner, appears to have based the findings on the fact that there was no treatment for the right upper extremity between December 2002 and 2004. The Court has held that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Such is the case here. While the February 2011 VA examiner concluded that the Veteran had a clinical diagnosis of carpal tunnel syndrome, but did not have tunnel syndrome in the right elbow or wrist as diagnostic studies were normal. The Board notes that EMG studies in June 2004 and September 2004 do not provide a diagnosis of carpal tunnel syndrome. For these reasons, the Board finds that the probative evidence shows that the Veteran had not had carpal tunnel syndrome in the right upper extremity. As for the diagnosis of right epicondylitis, the VA progress notes in June 2011 show the Veteran's right lateral epicondylitis resolved; however, the Veteran had a diagnosis of right lateral epicondylitis during the appeal period. The requirement that the Veteran have a current disability before service connection may be awarded "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim". See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Furthermore, the Veteran's right upper extremity condition, as discussed above, has been given several diagnoses other than right lateral epicondylitis to include right wrist tenosynovitis as diagnosed on the most recent VA examination in February 2011. Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In view of the foregoing, the Board finds that the evidence is, at the very least, in equipoise. As the benefit of the doubt in resolving the issue on appeal is given to the Veteran, service connection for residuals of an injury to the right upper extremity manifested by lateral epicondylitis and wrist tenosynovitis is warranted. ORDER Service connection for injury residuals involving the right upper extremity manifested by lateral epicondylitis and wrist tenosynovitis is granted. REMAND The Supplemental Statement of the case dated in January 2013, shows that the records includes VA treatment records from the East Orange, Columbus, and Dayton Medical Centers, dating from May 21, 2000 to December 17, 2012. A review of the file, to include the claims folder and the Virtual VA paperless claims processing system, shows VA treatment records dated through August 2012. Therefore, the VA treatment records dated from August 2012 to the present need to be associated with the file. Further, the Veteran contends that her chronic fatigue syndrome and fibromyalgia were aggravated by her National Guard service. In a December 2003 statement, the Veteran contended that her chronic fatigue syndrome and fibromyalgia, which began in 1999, were aggravated during her service in the National Guard due to the stress of physical training and the requirements to lose weight. In March 2004, the Veteran stated that her chronic fatigue syndrome, fibromyalgia, and Lyme's disease were aggravated by her service in the National Guard. She asserted that the line of duty fall during ACDUTRA service in the National Guard in December 2002 was a precipitating factor which caused her chronic fatigue syndrome, fibromyalgia, and Lyme's disease to be exacerbated. The claims file is replete with medical records, to include VA medical records, private medical records, and records from the Social Security Administration. The record, to include any entry in February 2002, show the Veteran had mononucleosis in 1999. The records first show the possibility of chronic fatigue syndrome in October 1999, and there is a diagnosis of chronic fatigue syndrome from February 2000 and onward. The medical records first showed fibromyalgia in February 2001. The records first showed questionable Lyme's disease in August 2001 followed by a diagnosis in April 2003. The VA records dated in August 2004 show that lab results in December 2002 confirmed "Lyme Elisa+". Lyme disease lab studies in September 2004 were negative. On VA examination in February 2011, the examiner noted that the Veteran was diagnosed with chronic fatigue syndrome in 2000, fibromyalgia in 2001, and Lyme disease in 2002. The examiner was of the opinion that there is no evidence to support the conclusion that the Veteran had a sudden worsening of symptoms due to her service with the National Guard. The Board finds the February 2011 VA opinion to be inadequate as the examiner did not address the question asked by the Board in a prior remand as to whether the Veteran's chronic fatigue syndrome, fibromyalgia or Lyme's disease increased in severity as a result of her National Guard service, and whether any such increase was due to the natural progression of the disease process. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. Therefore an addendum opinion is necessary on this issue. Accordingly, this remaining matter is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should take appropriate steps to obtain and associate with the claims folder the Veteran's VA treatment records beginning in August 2012 from the VA Medical Centers in East Orange, New Jersey; Columbus, Ohio; and Dayton, Ohio. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. The RO then should take all indicated action to return the claims file to the VA examiner who rendered the February 2011 VA opinion regarding whether the Veteran's chronic fatigue syndrome, fibromyalgia and Lyme's disease, were aggravated by any period of ACDUTRA in connection with National Guard service. If this examiner is not available, the Veteran's claim folder should be reviewed by another appropriate examiner. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner. After reviewing the entire record, the examiner must address the following: Whether the Veteran's chronic fatigue syndrome, fibromyalgia or Lyme's disease at least as likely as not increased in severity as a result of her National Guard service, and whether any such increase was due to the natural progression of the disease process? The examiner is asked to consider the Veteran's assertions that her chronic fatigue syndrome, fibromyalgia, and Lyme's disease were aggravated by any period of ACDUTRA in connection with her National Guard service from November 2001 to January 2005, to include due to her falling during ACDUTRA service in December 2002 or other rigorous activities. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 3. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish the Veteran and her representative a fully responsive Supplemental Statement of the Case and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 that are 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. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs