Citation Nr: 1310376 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 06-06 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for right carpal tunnel syndrome and ulnar neuropathy, to include as secondary to the service-connected residuals of fracture of the right third metacarpal. REPRESENTATION Appellant represented by: Mississippi Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from October 1976 to March 1998, with additional prior unverified inactive service. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This case was previously before the Board in July 2009 and October 2010, on which occasions it was remanded for additional development. More specifically, in July 2009, the case was remanded for the promulgation of a Statement of the Case (SOC) in accord with Manlincon v. West, 12 Vet. App. 238 (1999). An SOC was subsequently promulgated in July 2010, and the Veteran perfected his appeal by filing a timely Substantive Appeal. In October 2010, the case was once again remanded to comply with the Veteran's request for a Board hearing on his appellate claim. The Veteran subsequently provided testimony regarding his claim at a hearing before the undersigned Veterans Law Judge in March 2011. As an additional matter, the Board notes that the Veteran previously provided testimony regarding his claim for an increased rating for his service-connected residuals of fracture of the right third metacarpal in June 2007 before a different Veterans Law Judge than the Veterans Law Judge who conducted his March 2011 hearing. Under VA regulations, a claimant is entitled to have a final determination of his or her claim made by the Veterans Law Judge who conducted his or her hearing. 38 C.F.R. § 20.707 (2012). However, the Board issued a decision on the increased rating claim portion of the Veteran's appeal in October 2010, and nothing in the record indicates that he appealed that decision to the United States Court of Appeals for Veterans Claims (Court). As such, that appellate claim has been resolved, and is no longer before the Board. Moreover, even though the Veteran mentioned the problems he experienced with his carpal tunnel syndrome at the June 2007 hearing, no testimony was taken regarding whether service connection was warranted for that disability. In short, the June 2007 hearing did not pertain to the current appellate claim, and, as such, the Veterans Law Judge who conducted that hearing is not required to participate in the final determination of the current claim for service connection for right carpal tunnel syndrome and ulnar neuropathy. Finally, this case was last before the Board in September 2012, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. FINDING OF FACT Right carpal tunnel syndrome and ulnar neuropathy are not shown to have been present in service, or for many years thereafter, nor are they the result of any incident or incidents of the Veteran's period of active military service, or in any way causally related to a service-connected disability or disabilities, including the service-connected residuals of fracture of the right third metacarpal. CONCLUSION OF LAW Right carpal tunnel syndrome and ulnar neuropathy were not incurred in or aggravated by active military service, nor are they in any way proximately due to, the result of, or aggravated by a service-connected disability or disabilities, including the service-connected residuals of fracture of the right third metacarpal. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in June 2006 and July 2009, as well as in August 2011 and September 2012, of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, to include testimony presented at a hearing before the undersigned, service treatment records, VA and private treatment records and examination reports, and a statement from the Veteran's spouse. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122 (2000). Service Connection The Veteran in this case seeks service connection for right carpal tunnel syndrome and ulnar neuropathy. In pertinent part, it is contended that the Veteran's right carpal tunnel syndrome and ulnar neuropathy are the result of an incident in service, at which time the Veteran injured his right hand. In the alternative, it is contended that the Veteran's carpal tunnel syndrome and ulnar neuropathy are in some way causally related to his service-connected residuals of fracture of the right third metacarpal. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Finally, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The United States Court of Appeals for Veterans Claims (Court) has held that when aggravation of a Veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected to the extent of the aggravation. See Allen v. Brown, 7 Vet. App. 439, 446 (1995). Pursuant to law and regulation in effect prior to October 10, 2006, disabilities which are proximately due to or the result of a service-connected disease or injury are to be granted service connection. When service connection is thus established for a secondary condition, the secondary condition is to be considered a part of the original condition. See 38 C.F.R. § 3.310 (effective prior to October 10, 2006). Effective October 10, 2006, an increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, is to be service connected. In reaching a determination as to aggravation of a nonservice-connected disability, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by the service-connected condition) in comparison to the medical evidence establishing the current level of severity of the nonservice-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. Part 4) for evaluating that particular nonservice-connected disorder. See 71 Fed. Reg. 52,744-47 (September 7, 2006). In the present case, the Veteran's claim for service connection was received in May 2006. Accordingly, his claim is controlled by the more liberal regulations governing awards of secondary service connection in effect prior to October 10, 2006. Service treatment records, it should be noted, are negative for history, complaints, or abnormal findings indicative of the presence of right carpal tunnel syndrome or ulnar neuropathy. While it is true that, during service, the Veteran received treatment for a fracture of the third metacarpal (residuals of which are currently service connected), there is no indication that, at any time during the Veteran's period of active military service, he received either a diagnosis of or treatment for carpal tunnel syndrome or ulnar neuropathy. In fact, at the time of a service separation examination in March 1988, there was no evidence of either of those disabilities. Nor were any pertinent diagnoses or findings noted. The Board observes that, at the time of a VA hand examination in June 1995, the Veteran was able to make a good fist with his right hand, and could oppose his thumb and remaining fingertips satisfactorily. The earliest clinical indication of the presence of right carpal tunnel syndrome is revealed by a VA medical examination conducted in August 2004, more than 16 years following the Veteran's discharge from service, at which time electromyographic/nerve conduction studies were consistent with the presence of mild right carpal tunnel syndrome. Significantly, at the time of that examination, the examiner indicated that, in his opinion, the Veteran's right carpal tunnel syndrome was unrelated to the right hand injury he sustained on active military service. The Board notes that, at the time of a subsequent VA hand examination in March 2006, there was no evidence of any triggering of the flexor tendon in the palm of the long and ring fingers. Nor was there evidence of any sensory deficit. The earliest clinical indication of the presence of ulnar neuropathy is revealed by private electromyographic/nerve conduction studies dated in May 2006, more than 18 years following service discharge, at which time there was noted the presence of "very mild" bilateral ulnar neuropathies at the elbows, in conjunction with mild right carpal tunnel syndrome. At the time of a subsequent VA examination in August 2011, it was noted that the Veteran's claims folder was available, and had been reviewed. When questioned, the Veteran complained of stiffness in the second through the fourth digits of his right hand. Also noted were problems with numbness in the fingertips of those digits. According to the Veteran, his symptoms were worse in the morning, and "eased up" over the day. On physical examination, the Veteran displayed poor effort with his right hand, though the examiner was able to get 5/5 motor strength at times with some muscle groups. Further noted was the presence of normal muscle tone, bulk, and dexterity. Sensation was intact to temperature and vibration, and there was no evidence of allodynia or hyperpathia. Reflexes were 2+ and equal, and Tinel's sign was absent. Electromyographic testing performed the previous June was reported as showing normal nerve conduction velocities in the right median and ulnar nerves. Ulnar conduction dropped from 70 m/sec below the elbow to 52 m/sec across the elbow. Median distal motor latency was 4.1 and distal sensory latency was 3.1 (ulnar 3.1 and 2.9, respectively). According to the examiner, in August 2004, nerve conduction velocities were within normal limits, as was a needle examination. Moreover, at that time, right distal median latency was 5.1 motor and 3.9 sensory. In the opinion of the examiner, the Veteran exhibited no motor or sensory deficits in either the median or ulnar nerves of his right hand. While there was electrophysiologic evidence of carpal tunnel syndrome at the right wrist in August 2004, in the opinion of the examiner, this was no longer present. Moreover, given that electrophysiology was the "gold standard" in the diagnosis of carpal tunnel syndrome, the examiner was unequivocally of the opinion that the Veteran did not have carpal tunnel syndrome at the present time. Moreover, no ulnar nerve lesion had ever been diagnosed. According to the examiner, at worst, the Veteran might have an ulnar neuropathy at the elbow, though the numbers were somewhat suspect. More specifically, in the opinion of the examiner, the measurement of the nerve segment across the elbow was fraught with error, making the calculated velocity unreliable. Moreover, a conduction velocity of 70 m/sec in a gentleman of the Veteran's age was considered to be "exceedingly unlikely." In any event, according to the examiner, the elbow was sufficiently distant from the third metacarpal that it was an unrelated lesion, even if present. Moreover, there was no relationship between the Veteran's service-connected metacarpal fracture and carpal tunnel syndrome. This was the case because carpal tunnel syndrome resulted from a compression of the median nerve in the carpal tunnel of the wrist, while a fracture in the hand distal to the wrist was "considerably removed" from the course of both the median and ulnar nerves. Under the circumstances, it was unlikely that the Veteran's service-connected fracture itself, or residuals of that fracture, would have affected either the median or ulnar nerve function. During the course of VA outpatient treatment in July 2012, it was noted that the Veteran had "presumed" right carpal tunnel by clinical examination, although with a history of normal electromyographic testing. The Board finds the aforementioned opinion of a VA physician highly probative, because that opinion was based upon a review of the Veteran's entire claims folder, as well as other pertinent medical records, and a full examination, including both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file, and the thoroughness and detail of the opinion). The VA physician reviewed the Veteran's claims folder, discussed the Veteran's medical history, provided a well reasoned medical opinion, and alluded to the evidence which supported that opinion. See Hernandez-Toyens v. West, supra. Under the circumstances, the Board is of the opinion that the probative medical evidence of record fails to establish that the Veteran's right carpal tunnel syndrome and ulnar neuropathy, to the extent they currently exist, are in any way related to active military service, or the service-connected residuals of fracture of the third right metacarpal. In evaluating the Veteran's claim, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the Veteran has attributed his right carpal tunnel syndrome and ulnar neuropathy to an injury in service, or, in the alternative, to the service-connected residuals of fracture of the right third metacarpal. However, not until May 2006, many years following his discharge from service, did the Veteran file a claim for service connection for either of those disabilities. As noted above, to the extent they currently exist, there is no evidence that the Veteran's right carpal tunnel syndrome or ulnar neuropathy are in any way related to his inservice injury, or, for that matter, his service-connected fracture of the right third metacarpal. Moreover, both of those disabilities were first persuasively documented many years following the Veteran's discharge from service. Significantly, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weigh against a claim for service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, there is no medical evidence suggesting a link between the Veteran's right carpal tunnel syndrome and/or ulnar neuropathy and his period of active military service, or, for that matter, the residuals of fracture of the right third metacarpal. Under the circumstances, the Veteran's claim for service connection must be denied. The Board acknowledges the Veteran's testimony, and that of his spouse, regarding the origin of the disabilities at issue. However, the Board rejects those assertions to the extent that they seek to etiologically relate the Veteran's current disabilities to his period of active military service, or the service-connected residuals of fracture of the right third metacarpal. The Veteran's statements and testimony, and those of his spouse, when weighed against the objective evidence of record, are not of particular probative value. Moreover, the Veteran and his spouse, as lay persons, are not competent to create the requisite causal nexus for his current right carpal tunnel syndrome/ulnar neuropathy. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran (or his spouse) possess. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the aforementioned, the Board is unable to reasonably associate the Veteran's right carpal tunnel syndrome and/or ulnar neuropathy with any incident or incidents of service, or with the service-connected residuals of fracture of the right third metacarpal. Accordingly, his claim for service connection must be denied. ORDER Entitlement to service connection for right carpal tunnel syndrome and ulnar neuropathy, to include as secondary to the service-connected residuals of fracture of the right third metacarpal, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs