Citation Nr: 1312131	
Decision Date: 04/12/13    Archive Date: 04/19/13

DOCKET NO.  10-41 299	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for sleep apnea.

3.  Entitlement to service connection for a left hip disorder.

4.  Entitlement to service connection for right knee disability.

5.  Entitlement to service connection for a left foot disorder, claimed as plantar fasciitis. 

6.  Entitlement to post operative residuals of right carpal tunnel syndrome.

7.  Entitlement to left carpal tunnel syndrome.

8.  Entitlement to service connection for right thumb arthritis.


REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent


ATTORNEY FOR THE BOARD

Siobhan Brogdon, Counsel


INTRODUCTION

The Veteran served on active duty from June 1978 to June 1982, and from November 2004 to February 2006.  He had service in the Persian Gulf War Theater of Operations.

This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from rating decisions of the VA Regional Office (RO) in St. Petersburg, Florida that denied service connection for disabilities listed on the title page of this decision.

Following review of the record, the issues of entitlement to service connection for an acquired psychiatric disorder, including PTSD; left hip, right knee, and left foot disorders; left carpal tunnel syndrome; and sleep apnea are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  VA will notify the appellant if further action is required.



FINDINGS OF FACT

1.  The evidence reasonably indicates that the Veteran was treated for right carpal tunnel syndrome in service and a diagnosis of such leading to surgery was diagnosed within the month of discharge from active duty in 2006.

2.  Right carpal tunnel syndrome was compensably disabling within one year of discharge from service.

3.  Right thumb arthritis was manifested within one year of discharge from service.  


CONCLUSIONS OF LAW

1.  Right carpal tunnel syndrome was incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).

2.  Right thumb arthritis is presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  In view of the Board's favorable decision with respect to the issues of entitlement to service connection for right carpal tunnel syndrome and right thumb arthritis, further notice and assistance is unnecessary to aid the appellant in substantiating these appeals.

Pertinent Law and Regulations

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

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 is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012).

Where a veteran served continuously 90 days or more during a period of war or during peacetime service after December 31, 1946 and arthritis and/or an organic disease of the nervous system becomes manifest to a degree of at least 10 percent within one year from the date of termination of active duty service, such diseases shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of the disorder during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102.


Factual Background and Legal Analysis

The Veteran's DD-214 indicates that he had a military occupational specialty of vehicle maintenance supervisor.  He served in Iraq from January 2005 to January 2006.

The record reflects that service treatment records are for the most part unavailable and multiple requests to retrieve them have been unsuccessful.  In this regard, the RO has prepared a Formal Finding of Unavailability of Service Records to the record detailing the efforts made to obtain them.  Subsequent documentation of record reflects that additional searches have been made subsequent to the memorandum.  

The Board recognizes and regrets that the Veteran's service treatment records are not available.  In this regard, however, the Board points out that lack of service treatment records is not fatal to his claim if the evidence otherwise establishes a basis for service connection.  A veteran may still be able to establish service connection by submitting evidence that current disability is causally related to service, particularly by submitting evidence showing treatment for the claimed disabilities in proximity to active service.

In this regard, the evidence shows that the Veteran was separated from service in February 2006 and filed claims of entitlement to service connection that same month.  One week after discharge from active duty, VA outpatient records dated in February 2006 reflect that he was seen for complaints that included a painful right hand with numbness and weakness of all five fingers that reportedly was progressively worsening.  The Veteran provided history to the effect that he had had such symptoms since July 2005 and had been given wrist support without help.  An initial assessment of rule out severe right carpal tunnel syndrome was rendered that was confirmed upon hand surgery consultation in April 2006.  Assessments of right TMC [trapeziometacarpal] arthritis and right carpal tunnel were provided.  An endoscopic carpal tunnel release was scheduled and a splint of the right thumb TMC was prescribed.  The appellant underwent open right tunnel release in June 2006.  

The Board has carefully reviewed the record and finds that given the proximity of symptoms and treatment for right carpal syndrome and right thumb arthritis to the appellant's discharge from active duty, it is likely that these pathologies existed for some unknown period prior to treatment in February 2006.  The evidence strongly indicates these disabilities were likely present while the Veteran was in service which ended in February 2006.  As such, the Board finds that there is both competent and probative lay and clinical evidence in the record to conclude that right carpal tunnel syndrome and right thumb arthritis are related service.  Continuity of symptomatology is reasonably demonstrated. See 38 C.F.R. § 3.303.  

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 or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2012).  Moreover, an organic disease of the nervous system (carpal tunnel) and arthritis may be presumed to have been incurred in service if there is any clinical evidence of such developing to a compensably disabling degree within one year of discharge from active duty. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012).  As such, the benefit of any doubt is resolved in favor of the Veteran by finding that post operative residuals of right carpal tunnel syndrome and right thumb arthritis were incurred in service.


ORDER

Entitlement to service connection for post operative right carpal tunnel syndrome is granted.

Entitlement to service connection for right thumb arthritis is granted.  



REMAND

The Veteran filed claims of entitlement to service connection in February 2006 for a left carpal tunnel syndrome, and left foot, right knee and left hip disabilities.  The record reflects that within the month after discharge from active duty, he was treated at VA for complaints that included left hand numbness, a history of plantar fasciitis, symptoms of anxiety, isolation and anger, right and left knee pain, and left hip pain and weakness.  In May 2006, knee pain was attributed chondromalacia and patellofemoral syndrome.  

The appellant has since filed a claim of entitlement to service connection for sleep apnea that he attributes to exposure to environment toxins and states that he has been prescribed a CPAP [continuing positive airway pressure] machine in this regard.  He currently carries a diagnosis of PTSD that he attributes to duty in Iraq.  The Veteran asserts that he had symptoms of all of the claimed disorders in Iraq, and argues in the alternative that these disorders are otherwise related to such service, to include due to an undiagnosed illness.  The Board finds, however, that as to the above, the evidence is not so clearly defined or substantial for a grant or to deny service connection at this time.  Therefore VA examinations are indicated as to these matters, to include a clinical opinion.  

Review of the record discloses that a VA general medical examination was scheduled for the Veteran in November 2006 but that he failed to report.  The Board observes, however, that there is no document in the record indicating that the appellant was apprised of the examination.  There is no explanation in the record for his failure to appear.  In any event, it is well established that in cases where a veteran's service records are unavailable through no fault of his own, there is a heightened obligation to assist in the development of the claim.  See O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991); Moore v. Derwinski, 1 Vet. App. 401, 406 (1991).  

The United States Court of Appeals for Veterans Claims (Court) held in McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006) that if the record indicates that there is a disability or signs or symptoms of disability that might be associated with active service, and the record does not contain sufficient information to make a decision on a claim, VA is obligated to provide an examination. See 38 U.S.C.A. § 5103A (West 2002).  The threshold for getting an examination under the VCAA is low.  Therefore, the Veteran will be given the opportunity to report for another VA examination in order to render a fully informed appellate decision. See Hyder v. Derwinski, 1 Vet.App. 221, (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). 

Accordingly, the case is REMANDED for the following actions:

1.  Send the appellant a duty-to-assist letter providing him with guidance concerning entitlement to service connection of the claimed disabilities based on an undiagnosed illness.  See generally 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012).

2.  Schedule the Veteran for VA general medical and psychiatric examinations by appropriate examiners to determine whether the claimed disorders are related to service.  The claims folder and access to Virtual VA must be made available to the examiners.  Clinical findings should be reported in detail, to include diagnoses.  Following the examination and a review of the evidence, the examiners must specifically opine (as appropriate) whether the Veteran has the claimed disabilities.  Moreover, each examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that an acquired psychiatric disorder, including PTSD; left carpal tunnel syndrome; a left hip disorder; a right knee disability; a left foot disorder, and/or sleep apnea are directly related to service or are otherwise of service onset, to include as due to an undiagnosed illness.  The examination report must include well-reasoned rationale for all opinions and conclusions reached. 

3.  Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims.  Advise him that the consequences for failure to report for VA examination may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012).

4.  The RO should ensure that the medical report requested above complies with this remand and its instructions.  If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned for correction. 

5.  After taking any further development deemed appropriate, readjudicate the issues on appeal.  If any benefit sought is not granted, the RO must provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board.

The appellant 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).



_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans Appeals

Department of Veterans Affairs