Citation Nr: 1316652 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 07-02 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a right hand disorder, diagnosed as carpal tunnel syndrome and gout. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran, friend of Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to January 1983. This matter is on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified before the undersigned Veterans Law Judge in April 2010. A transcript of the hearing is of record. This appeal was remanded by the Board in December 2010 and again in October 2010 for further development and is now ready for disposition. FINDING OF FACT A right hand disorder was not shown in service or for many years thereafter, and is unrelated to active duty service. CONCLUSION OF LAW A right hand disorder, diagnosed as carpal tunnel syndrome and gout, was not incurred in or aggravated by service, and are not related to service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice 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 v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2004 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. While this letter did not provide the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date, a letter in November 2006 was sent that addressed this information. After this notice was sent, the issue was readjudicated, and the Veteran was sent a supplemental statement of the case in June 2009. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records and records submitted in conjunction with a claim to the Social Security Administration (SSA). Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim. VA examinations with respect to the issue on appeal were also obtained in December 2010 and October 2012. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are collectively adequate, it they predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Next, the Veteran was afforded a hearing before the undersigned Veterans Law Judge in April 2010. The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about his hand symptoms in service, and how such symptoms are related to his current disability. Finally, it is noted that this appeal was remanded by the Board in December 2010 and again in October 2012 for further development. Specifically, in the December 2010 Remand, the Board instructed the RO to acquire the Veteran's most recent VA treatment records and to afford the Veteran a VA examination. The October 2012 Remand concluded that the examination provided was inadequate, and instructed that a new examination be conducted. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was provided VA examinations in December 2010 and October 2012, which the Board finds collectively adequate for adjudication purposes. RO also obtained the Veteran's most recent VA treatment records. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in March 2013. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). However, the United States Court of Appeals for the Federal Circuit has recently held that service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). As is relevant here, carpal tunnel syndrome is not considered a chronic disease under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the service treatment records indicate that the Veteran was seen in August 1982 for symptoms related to a trauma to the right hand, specifically characterized by pain in the carpal/metacarpal area. However, there is no indication that there was any chronic right hand disorder resulting from this incident. Notably, there are no other episodes in the record where the Veteran complained of such symptoms. Moreover, the Veteran's separation physical examination in March 1987 fails to document any complaints of or observed symptoms related a right hand disorder. In fact, the post-service evidence does not reflect symptoms related to a right hand disorder for many years after the Veteran left active duty service. Specifically the first indication of a right hand disorder after service was not until April 2004, where he sought treatment for numbness and tingling in the forearms that radiated to his shoulders. A June 2004 follow-up evaluation indicated sensation perception to be mildly decreased in the right hand. This was the first occasion where he was diagnosed with carpal tunnel syndrome. Even if the Board were to presume that the Veteran's complaints of tingling in the forearms in April 2004 were related to his later-diagnosed carpal tunnel syndrome, the Board nevertheless emphasizes that this first indication of a right hand disorder is approximately 21 years after he left active duty. Even though service connection for a disorder such as this may not be shown simply based on continuity of symptoms, see Walker, 708 F.3d at 1331, such a large gap in treatment also weighs against the Veteran's claim that the carpal tunnel syndrome in his right hand is related to service. Despite the significant gap in time between active duty and the Veteran's current complaints, service connection may nevertheless be warranted if the evidence otherwise establishes a medical nexus between active duty service and current complaints. However, in this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite his contentions to the contrary. Specifically the Board places significant value on the opinions of VA examiners who evaluated the Veteran's symptoms in December 2010 and October 2012. In the first examination, the Veteran stated that he incurred multiple contusions and abrasions while working as a truck mechanic while on active duty, although he acknowledged that they were of a minor nature. Upon examination, the examiner did not observe any thenar atrophy, nor was there any evidence of joint disturbance. His grip was normal and he exhibited normal range of motion in the wrists without any painful limitation. After completion of the examination, the examiner diagnosed "very mild" carpal tunnel syndrome by history, but also diagnosed gouty arthritis in the hands and knees. However, the examiner opined that the Veteran's right hand symptoms were more likely related to his recently diagnosed gout than to active duty service. No rationale was provided in support of this opinion. At the time of the next VA examination in October 2012, the Veteran stated that he worked as a mechanic while on active duty, where he incurred multiple contusions to the hands because of the nature of his work. Since that time, he experiences episodes of his hand "locking," as well as episodes of numbness in the entire hand. At the conclusion of the examination, and a review of the Veteran's claims file, the VA examiner noted the Veteran's prior diagnosis of carpal tunnel syndrome, but it was unclear whether it was observed at the time of the examination. In any event, the examiner provided the opinion that it was less likely than not that the Veteran's hand disorder was related to active duty. In providing this opinion, the examiner reflected that there is no "direct cause and effect" between minor hand injuries and his current complaints. Moreover, the examiner noted that there were many years between the time he left active duty and his initial complaints of carpal tunnel syndrome, many of which were also spent as a mechanic. The Board finds that these examinations are collectively adequate for evaluation purposes. Specifically, both examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that he misstated any relevant fact. While there was no rationale for the opinion provided in the December 2010 examination, this defect was effectively cured by the October 2012 examination. Thus, these examinations are afforded significant probative value. Therefore, the clinical evidence does not indicate that the Veteran's right hand disorder is related to active duty service. In adjudicating this claim, the Board has also considered the statements made by the Veteran relating his right hand disorder to his active service. The Federal Circuit has 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his right hand disorder. See Jandreau, 492 F.3d at 1377, n.4. Because carpal tunnel syndrome is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's right hand disorder are found to lack competency. Moreover, while the Veteran is competent to testify about the symptoms he has experienced in his right hand, the Board finds that these statements are of little credibility. First, the Board also cannot ignore the significance of the fact that the Veteran did not file his claim for service connection for this issue for approximately eight years after he left active duty. Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Additionally, when the Veteran was evaluated in May 2003, his reflexes were to be normal in the extremities, and his strength and sensory functioning was normal. This evidence directly contradicts the Veteran's assertions that his disorder has persisted since active duty. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a right hand disorder, diagnosed as carpal tunnel syndrome and gout, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs