Citation Nr: 1320657 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 07-38 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right wrist and/or hand disability, claimed as carpal tunnel syndrome and degenerative joint disease. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1994. As discussed in the October 2009 Board decision, his period of active duty from September 1, 1994 to March 31, 2003, is a bar to VA benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2009 a Travel Board hearing was held before the undersigned. A copy of the hearing transcript is of record. In October 2009, the Board, in pertinent part, remanded the issues of entitlement to service connection for right wrist carpal tunnel syndrome, a heart disability, and hemorrhoids, as well as an increased rating claim for residuals of gunshot wound to the left lower leg. In an August 2011 rating decision, the RO granted service connection for coronary artery disease. As this represents a total grant of benefits sought on appeal, this particular issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Thereafter, the remaining remanded claims returned to the Board in November 2011, at which time the Board denied service connection for a low bowel disorder (to include hemorrhoids) and determined that the criteria for an initial rating in excess of 10 percent residuals of gunshot wound to the left lower leg had not been met. In the November 2011 decision, the Board also remanded the right wrist claim for further development. When the claim was most recently before the Board in September 2012, it was again remanded for additional development. As noted in the November 2011 remand, the issue of entitlement to service connection for Gulf War Syndrome, to include sleep apnea and sinusitis, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to the Board's September 2012 remand, the Veteran's claims file was referred to a suitable VA examiner in October 2012 for a supplemental medical opinion. Notably, the September 2012 Board remand instructed the VA examiner to review the claims file and provide an opinion as to whether the Veteran's degenerative joint disease of the right hand (which was documented in the December 2009 VA examination report) was at least as likely as not related to service, or otherwise had its onset in service ending in August 1994. The examiner was also instructed to indicate whether X-ray evidence of arthritis of the right wrist or hand was shown within one year of August 31, 1994. Finally, the examiner was instructed to reconcile the January 2012 VA opinion that the Veteran's right carpal tunnel syndrome and chronic strain in the right wrist are at least as likely as not related to his civilian occupational duties as a truck driver and less likely related to service, with the Veteran's administrative duties (repetitive motion) performed during service and his lay reports of etiology and continuing symptoms since service. The examiner was instructed to provide a complete rationale for any opinion provided. The October 2012 VA examination report notes that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness because the examiner could find no evidence of injury to the right hand within the claims file during the period of 1994. The examiner also stated that she could find no evidence of injury to the right wrist or X-ray indicating arthritis of the right wrist during the period of 1994. Finally, the examiner indicated that medical literature shows that carpal tunnel syndrome is often the result of a combination of factors that increase pressure on the median nerve and tendons in the carpal tunnel, rather than a problem with the nerve itself. Most likely the disorder is due to a congenital predisposition in that the carpal tunnel is simply smaller in some people than in others. Other contributing factors include trauma or injury to the wrist that cause swelling, such as a sprain or fracture; overactivity of the pituitary gland; hypothyroidism; rheumatoid arthritis; mechanical problems in the wrist joint; work stress; repeated use of vibrating hand tools; fluid retention during pregnancy or menopause; or the development of a cyst or tumor in the canal. Carpal tunnel syndrome is also associated with pregnancy and diseases such as diabetes, thyroid disease, or rheumatoid arthritis. In some cases no cause can be identified. There is little clinical data to prove whether repetitive and forceful movements of the hand and wrist during work or leisure activities can cause carpal tunnel syndrome. Repeated motions performed in the course of normal work or other daily activities can result in repetitive motion disorders such as bursitis and tendonitis. However, writer's cramp (a condition in which a lack of fine motor skill coordination and ache and pressure in the fingers, wrist, or forearm is brought on by repetitive activity) is not a symptom of carpal tunnel syndrome. There are multiple possible etiologies of carpal tunnel syndrome, with none more prevalent than another. The examiner concluded that therefore, the issue cannot be resolved without resort to mere speculation. Initially, the Board notes that the examiner's rationale for the opinion that it is less likely than not that the degenerative joint disease of the right hand ("claimed condition") is caused by the claimed in-service injury, event, or illness is inadequate for adjudication purposes. The rationale provided is that there is no evidence of injury to the right hand during the period of 1994. The fact that there was no injury to the right hand in 1994 is not a sufficient rationale. Notably, the examiner failed to address the Veteran's complaints of continuous symptomatology since service or his theory that the degenerative joint disease of the right hand is due to repetitive motion or stress to the right hand while performing his administrative duties during service. In this regard, the Board appreciates the lengthy explanation the examiner provided for why carpal tunnel syndrome has multiple possible etiologies in general, and has not been proven to be caused by repetitive movement of the hands or wrists. However, the first opinion requested in the Board remand was regarding whether the Veteran's degenerative joint disease of the right hand (diagnosed at the December 2009 VA examination) is at least as likely as not related to service or otherwise had its onset in service ending in August 1994. The fact that the Veteran did not injure his right hand during service in 1994 is not a sufficient rationale for the stated opinion and a remand is required in order to obtain another opinion with a sufficient rationale. Additionally, the VA examiner failed to address pertinent service treatment records. In this regard, the Board notes that a January 1981 service treatment record reflects that the first digit of the Veteran's right hand was swollen and discolored due to the circulation being cut off by a ring. Moreover, a September 1984 service treatment record notes complaints of an abrasion to the right hand. It was noted that there was previous tendon surgery. Increased swelling was noted around the incision site. Finally, a January 1993 service treatment record notes that sutures were placed on the right middle finger in December 1992 due to broken glass. Sutures were removed and the wound was healed. The Board notes that a medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, a remand is required for a medical opinion regarding whether the Veteran's degenerative joint disease of the right hand is at least as likely as not related to service or otherwise had its onset during the Veteran's period of service ending in August 1994, which takes into account all of the Veteran's service treatment records, and which provides an adequate rationale. A remand is also required in order for the examiner to address whether X-ray evidence of arthritis of the right hand was shown within one year of August 31, 1994. Importantly, the October 2012 VA examiner did not address whether evidence of arthritis of the right hand was shown within one year of August 31, 1994. Instead, the examiner only stated that there was no X-ray evidence of arthritis of the right wrist during 1994. Finally, in finding that an opinion could not be provided without resorting to speculation regarding reconciling the January 2012 opinion that the right carpal tunnel syndrome and chronic strain in the right wrist are at least as likely as not related to the Veteran's civilian occupational duties as a truck driver and less likely related to service, the examiner again failed to address the Veteran's lay reports of continuing symptoms since service, as directed in the September 2012 remand. The Board also points out that a May 2009 VA treatment record reflects that the Veteran was seen for evaluation of right hand pain since he fell on March 19, 2009. He stated that his right hip gave away, and he landed on his right hand, bending his third, fourth, and fifth fingers back. He stated that he did not seek medical attention at that time. On examination, the right third, fourth, and fifth fingers were mildly swollen with decreased range of motion. The impression was right hand pain. In sum, the AOJ did not accomplish the objectives set forth in the September 2012 Board remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). As such, a remand is required in this regard. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the October 2012 VA examiner (or other suitable VA examiner if that examiner is unavailable) for a supplemental medical opinion. The entire claims file and a copy of this Remand must be made available to the examiner, and the report should include discussion of his documented medical history and assertions. After a complete review of the claims file, the examiner is asked to provide a supplemental medical opinion addressing the following: a) Provide an opinion as to whether the Veteran's degenerative joint disease of the right hand is at least as likely as not (a 50 percent or greater likelihood) related to service, or otherwise had its onset during the Veteran's period of service ending in August 1994. The examiner must specifically comment on the Veteran's report of recurrent symptomatology since service, the impact of repetitive hand movements performing administrative duties during active service, and the following service treatment records: the January 1981 service treatment record which notes that the first digit of the right hand was swollen and discolored due to the circulation being cut off by a ring; the September 1984 service treatment record which notes complaints of an abrasion to the right hand, previous tendon surgery, and increased swelling noted around the incision site; and the January 1993 service treatment record that notes that sutures were placed on the right middle finger in December 1992 due to broken glass. b) The examiner must indicate whether X-ray evidence of arthritis of the right HAND was shown within one year of August 31, 1994. c) The examiner must reconcile the January 2012 VA opinion that the Veteran's right carpal tunnel syndrome and chronic strain in the right wrist are at least as likely as not related to his civilian occupational duties as a truck driver and less likely related to service with the Veteran's lay reports of etiology and continuing symptoms since service. In providing the above requested opinions, the examiner must also address the May 2009 VA treatment record which notes that the Veteran has had right hand pain since he fell on March 19, 2009. He stated that his right hip gave away and he landed on his right hand and bent his third, fourth, and fifth fingers back. The examiner should provide a complete rationale for any opinion provided. If the examiner determines that a decision cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. When the above development has been completed, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue an additional Supplemental Statement of the Case. After the Veteran has had an adequate opportunity to respond, return the appeal to the Board for appellate review. 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). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).