Citation Nr: 1313891 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 08-27 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral carpal tunnel syndrome. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from August 1997 to April 2006. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Waco, Texas, which denied the Veteran's service connection claim. The Board has previously considered this claim. In February 2010, the Board, in pertinent part, remanded the Veteran's claim to the RO via the Appeals Management Center in Washington, DC, for additional development. The claim was remanded again in October 2011 and September 2012 in order to afford the Veteran another VA examination and obtain a medical opinion concerning her claim. The claims folder has been returned to the Board for further appellate proceedings. For reasons which will be discussed in greater detail below, the Board finds there has been substantial compliance with its September 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDING OF FACT The most probative evidence of record demonstrates that the Veteran does not have a current diagnosis of carpal tunnel syndrome of either extremity. CONCLUSION OF LAW Bilateral carpal tunnel syndrome was neither incurred in, nor aggravated by active duty service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA"). With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), however, the requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim, was eliminated by the VA Secretary ("Secretary") during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, VA essentially satisfied the notification requirements of the VCAA by means of a letter dated September 2006. The RO informed the appellant of the types of evidence needed in order to substantiate her service connection claim, the division of responsibility between claimants and VA for obtaining the required evidence, and requested that she provide any information or evidence in her possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). The letter also satisfied the requirements of Dingess/Hartman and informed the Veteran of how VA determines the disability rating and effective date elements of a claim. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims folder contains the Veteran's service and post-service treatment records, and a VA compensation and pension examination reports dated June 2007, June 2010 and November 2012, as well as the associated addendum opinions. Additionally, the claims file contains the Veteran's statements in support of her claim. The Veteran has not referenced any outstanding records that she wanted VA to obtain or that she felt were relevant to her claim that have not already been associated with the claims folder. Review of the June 2007 examination report shows that the examiner did not have access to the Veteran's claims folder. The Court has held, however, that the absence of a claims file review does not necessarily render an examination inadequate or reduce the probative value of a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Snuffer v. Gober, 10 Vet. App. 400 (1997). Review of the June 2010 examination report shows that although the examiner reviewed the complete evidence of record and performed a physical evaluation, he did not perform diagnostic tests to determine whether the Veteran had carpal tunnel syndrome. With respect to the November 2012 examination, as noted above, the Board remanded the Veteran's claim and requested that the VA examiner reconcile the conflicting evidence of record, including evidence of a diagnosis of carpal tunnel syndrome in service and during the June 2010 examination. While the examiner did not specifically refer to each individual clinical evaluation, she did indicate that she had reviewed the complete claims folder, including the Veteran's service and post-service treatment reports. In noting that the Veteran had not previously undergone electromyography/nerve conduction velocity ("EMG/NCV") studies and that carpal tunnel syndrome occurs with long-term usage of the hands/wrists (as opposed to the Veteran's reported in-service incident of holding a pressure washer for only three months), she supported her conclusion that it was less likely than not that any carpal tunnel syndrome was related to service. She further supported this finding by subsequently reviewing EMG/NCV studies, which she noted in a December 2012 addendum to be negative for a finding of carpal tunnel syndrome. As the Board conducted the additional evidentiary development necessary to afford the Veteran an adequate examination, the Board concludes that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. Accordingly, the Board finds that VA has fully complied with the notice and assistance requirements of the VCAA and its regulations. The appellant has been provided with every opportunity to submit evidence and argument in support of her claim and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Applicable laws and regulations. The Board must assess the credibility and weight of all 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. 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 all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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); see also 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. These provisions, however, only apply to chronic diseases specifically set forth in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Additionally, service connection for certain chronic diseases, including organic diseases of the nervous system, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). As mentioned above, the Veteran contends that she has bilateral carpal tunnel syndrome as a result of a three-month detail during service, in which she held a pressure washer in her hands. Review of the Veteran's service treatment records shows that, in November 1999, she was treated for a right finger injury after reporting that she had crushed the finger in a car door. An x-ray revealed no bone or soft tissue abnormalities. In January 2000, she was treated for a left index and middle finger injury after hitting her left hand with a hammer. An x-ray noted no evidence of a bone or soft tissue abnormality, and the imaged portions of the wrist were unremarkable. During the Veteran's March 2006 service separation examination, she complained of painful wrists, more on the right, since December 2005, adding that she experienced swollen hands with painful tingling in the morning. The clinician diagnosed the Veteran with carpal tunnel syndrome, status-post wash rack detail in Kuwait from December 2005 to February 2006. Despite the diagnosis, however, the Board notes that there is no indication that any diagnostic tests were performed on the Veteran's hands/wrists during her separation examination, to include no evidence of EMG/NCV studies. In the examiner comments, the clinician wrote "consider ortho[pedic] consult for additional options." Despite a notation on the same form referring the Veteran to undergo a neurology consultation, this was noted as a means of ruling out a seizure disorder based on shaking/clinching episodes and does not appear to have been associated with the carpal tunnel syndrome diagnosis. There is also no indication that the Veteran went for the orthopedic consultation. In June 2007, the Veteran was afforded a VA general medical compensation and pension examination pursuant to several service connection claims, including her claim of entitlement to service connection of carpal tunnel syndrome. Although the examiner noted that she had reviewed the copy of the Veteran's service treatment records that she brought with her, she did not have access to the claims folder. Upon examination, it was noted that the Veteran's peripheral pulses were intact with good capillary refill to distal upper and lower extremities. The bilateral wrists were non-tender and were negative for edema, ecchymosis and erythema. There was negative snuffbox tenderness, negative Tinel's sign or Phalen's sign, and negative ganglion cyst. Tinel's sign indicates irritated nerves "with radiation up the arm." Hartzog v. Peake, No. 07-2131, slip op. at 1 (U.S. Vet. App. Dec. 23, 2008) (nonprecedential Memorandum decision). Phalen's test or maneuver is for detection of carpal tunnel syndrome. Dorland's Illustrated Medical Dictionary, 984-985; 28th ed. 1994. The fingers on both hands were noted to have good capillary refill and sensation. Touch and pinprick sensation inconsistently decreased over the tip of the palmer aspect of the thumb and index fingers bilaterally. No loss of sensation was noted over both palmer and dorsal aspect of the hands in the distribution of the medial nerve bilaterally. Other areas of the bilateral upper extremities were found to be normal to touch, pain and vibration. Based on this comprehensive physical evaluation, as well as a review of the service treatment records and the Veteran's lay complaints, the examiner concluded that there was no evidence that the Veteran had carpal tunnel syndrome. In June 2010, the Veteran was afforded a VA peripheral nerves examination. The examiner noted that, although a review of the service treatment records indicated a diagnosis of carpal tunnel syndrome, no EMG studies were performed. Motor and sensory examination of the bilateral hands involving the radial, medial and ulnar nerves revealed them to be intact, although it was noted that the Veteran had a weakly-positive Tinel's sign bilaterally. The examiner diagnosed the Veteran with minimal bilateral carpal tunnel syndrome; in a March 2011 addendum, he opined that it was as likely as not that her disorder was the result of military service. As noted above, however, the examiner failed to perform EMG/NCV studies. In September 2012, the Veteran's claims folder was remanded to obtain a supplemental opinion to inquire as to whether electrodiagnostic studies were necessary to determine whether the Veteran had carpal tunnel syndrome. In November 2012, the examiner opined that the claimed condition was less likely than not incurred in, or caused by service. In this regard, she stated that the Veteran did not show up for EMG/NCV studies. She further noted that the Veteran had been on a three-month detail of holding a pressure washer which caused sharp pains in her hands. Nonetheless, she noted that carpal tunnel syndrome occurs with long-term usage of the hands/wrists. She indicated that she was going to re-order the EMG/NCV test and would change her opinion if the results were positive for carpal tunnel syndrome. In a December 2012 addendum, the examiner noted that the Veteran's EMG/NCV test was normal for the bilateral upper extremities, and thus stated that there was no diagnosis of carpal tunnel syndrome. The Veteran's post-service VA treatment records contain no evidence that she was being treated for, or was diagnosed with carpal tunnel syndrome. Accordingly, after considering all of the evidence of record, the Board concludes that the most probative evidence of record is against the Veteran's claim of entitlement to service connection for bilateral carpal tunnel syndrome. In this respect, the Board notes that it has the responsibility to weigh the evidence, including the medical evidence, to determine where to give credit and where to withhold the same, and in so doing, the Board may accept one medical opinion and reject others, provided it offers an adequate basis for so doing. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, the Board concludes that the opinion of the November 2012 clinician, who performed the requisite diagnostic test to determine that the Veteran does not have carpal tunnel syndrome, is the most probative evidence regarding the Veteran's claim and outweighs the diagnosis made by the service separation examiner and the June 2012 VA examiner. Neither the Veteran, nor her representative have presented or identified any evidence that would contradict the findings of the EMG/NCV studies. In addition to the medical evidence, the Board has also considered the statements of the Veteran regarding her claim. In this regard, the Court has held that a claimant is competent to attest to factual matters of which he or she has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, although the Veteran is competent to report what comes to her through her senses, there is no evidence that she has medical knowledge or training that would permit her either to diagnose, or determine the etiology of a complex neurological disorder like carpal tunnel syndrome. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, although the Board acknowledges the Veteran's belief that she had carpal tunnel syndrome as a result of service, her statements in this regard are not deemed competent. Accordingly, the Board concludes that the most probative evidence of record is against the Veteran's claim of entitlement to service connection for bilateral carpal tunnel syndrome on both a direct and presumptive basis. As noted, the most probative evidence of record does not support a finding of the onset of the condition either during service or within the one-year period following separation from service. In arriving at the decision to deny the claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule. However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral carpal tunnel syndrome is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs