Citation Nr: 1317650 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 08-08 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a bilateral hand disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to May 1988 and from March 2005 to June 2006 with additional service in the Army Reserves, including during the pendency of this appeal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a bilateral hand disability. The Board denied the Veteran's claim for service connection for a bilateral hand disability in a February 2012 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a November 2012 Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the February 2012 decision as to such issue. The Court granted the JMR in a November 2012 Order. Therefore, the issue returns to the Board for further consideration. FINDING OF FACT The Veteran's diagnosed paresthesias of the hands are at least as likely as not related to service, and are at least as likely as not related to his service-connected cervical spine disc disease. CONCLUSION OF LAW The criteria for establishing service connection for paresthesias of the hands have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act Since the Board is granting service connection for paresthesias of the hands, there is no need to engage in any analysis with respect to whether the requirements of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)), have been satisfied. That matter is moot. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). In the present case, the Board finds that the evidence supports an award of service connection for paresthesias of the hands. First, the evidence reflects that the Veteran has a diagnosis of that disorder during the pendency of the claim-in this case, in or after June 2006. McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). Specifically, after the Board issued its February 2012 decision, the Veteran submitted private treatment records from Xavier Medical, dated September 2006, in which his clinician diagnosed paresthesias of both hands, and of the fingers. The Board notes that while the clinician also wrote, with a question mark, "Carpal Tunnel?," there is no indication in the record that such diagnosis was ever definitively made, so further discussion thereof is unwarranted. Furthermore, in a March 2012 VA examination of the Veteran's thoracolumbar and cervical spine, the examiner found that due to the Veteran's cervical spine radiculopathy, he has moderate paresthesias and/or dysesthesias, as well as moderate numbness, of the upper extremities bilaterally. The VA examiner's March 2012 findings confirm the Xavier Medical clinician's September 2006 diagnosis of paresthesias of the hands and fingers. The Board acknowledges that the August 2007 VA examiner did not provide a diagnosis regarding the Veteran's reported numbness and tingling of the hands and fingers, and found that all of his deep tendon reflexes (DTRs) were 2+ and equal bilaterally. However, in light of both the consistency of the Veteran's reported symptoms during and after service, and the post-service diagnoses of bilateral hand paresthesias by private and VA clinicians, the Board finds that the preponderance of the evidence supports the conclusion that the Veteran has a current diagnosis of a bilateral hand disorder. Second, the Veteran's service treatment records show the occurrence of bilateral hand disorders in service. Specifically, the Veteran was treated for tingling and numbness in the fourth and fifth digits of both hands on December 12, 2005, which he stated had started a few weeks ago. He reported that the symptoms would wake him up at night. The in-service clinician diagnosed him with possible ulna nerve adhesion around the right elbow and nerve impingement in the left elbow. On December 15, 2005, the Veteran stated that he had experienced another brief episode of numbness in his hands the previous night. In a May 2006 sworn statement made during service, the Veteran reported that he had incurred tingling in the ring finger and pinky finger of both hands during active duty in Iraq. Third, there is competent evidence of a nexus between the Veteran's in-service tingling and numbness in his hands and his current paresthesias of the hands. 38 C.F.R. § 3.303. Specifically, the Veteran's reported symptoms in service are essentially identical to those for which he received private treatment and a diagnosis of paresthesias in both hands in September 2006-just three months after his separation from service. Furthermore, there is competent evidence linking the Veteran's paresthesias of the hands to his service-connected cervical spine disc disease. 38 C.F.R. § 3.310. In particular, the March 2012 VA examiner found that the Veteran's moderate bilateral upper extremity paresthesias and/or dysesthesias, and his moderate bilateral upper extremity numbness, are due to his cervical spine radiculopathy. The findings, diagnoses, and conclusions of the September 2006 Xavier Medical clinician and the March 2012 VA examiner are competent based on their medical expertise, credible based on their duty to provide truthful opinions, and highly probative based on their medical reasoning, internal consistency, and consistency with the evidence of record. Significantly, no medical opinion against a link between the Veteran's current bilateral hand paresthesias and his service or his service-connected cervical spine disc disease is of record. Finally, in response to the parties' directive in the November 2012 JMR, the Board has considered whether the Veteran's numbness and tingling of the hands constitutes an undiagnosed illness incurred as a result of his service in the Southwest Asia theater of operations. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. As demonstrated by the September 2006 private treatment records submitted after the Board's February 2012 decision, and by the March 2012 VA examination report, the Veteran's bilateral hand disorder has been diagnosed as paresthesias due to his cervical spine radiculopathy, and, as such, is not an undiagnosed or medically unexplained illness. Under the circumstances, and taking into consideration the totality of the evidence, the Board is persuaded that the criteria for an award of service connection for paresthesias of the hands have been satisfied. The evidence, at a minimum, gives rise to a reasonable doubt on the question. 38 C.F.R. § 3.102 (2012). Therefore, the appeal is allowed. ORDER Service connection for paresthesias of the hands is granted. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs