Citation Nr: 1321262 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 09-42 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for carpal tunnel syndrome, to include as secondary to the service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for carpal tunnel syndrome. In April 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development., to include returning the claims folder to the July 2008 VA clinician who examined the Veteran for carpal tunnel syndrome, for an addendum opinion. Although an addendum opinion was issued in April 2012, for reasons set forth below, the Board finds that, because of deficiencies in the VA examiner's opinion regarding the claim for service connection for carpal tunnel syndrome, there has not been substantial compliance with the remand directives of April 2012, and another remand of that issue is warranted. Stegall v. West, 11 Vet. App. 268 (1998). Although further delay of this appeal is regrettable, 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 The Veteran essentially contends he has carpal tunnel syndrome related to a service-connected disability - either diabetes mellitus or peripheral neuropathy of the upper extremities. In April 2012, the Board remanded this matter in order for the July 2008 VA examiner to offer an addendum opinion as to whether it is at least as likely as not that the Veteran's carpal tunnel syndrome was due to or aggravated by his service-connected diabetes mellitus or due to or aggravated by his service connected peripheral neuropathy. In April 2012, a VA examiner issued a DBQ (disability benefits questionnaire) addendum opinion, addressing direct service connection (as opposed to secondary service connection), finding that the Veteran's carpal tunnel syndrome was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the examiner indicated that the EMG in 2008 stated that there may be a mild carpal tunnel syndrome, and that the EMG in 2011 did not mention any carpal tunnel syndrome. The examiner indicated that there was therefore no carpal tunnel syndrome to consider; that the results from the 2011 EMG would be most accurate as they are also consistent with the "2011 C&P PE"; and that the Veteran had "diabetic peripheral neuropathy without carpal tunnel syndrome". The Board finds the VA examiner's opinion from April 2012 to be problematic for several reasons. First, the examiner did not opine as to whether the Veteran's carpal tunnel syndrome was caused or aggravated by a service connected disability. While the examiner addressed the portion of the DBQ report that dealt with direct service connection, the examiner did not address the portion of the DBQ report that dealt with secondary service connection. Further, the record does not contain either the 2011 EMG, or the 2011 C&P, cited by the VA examiner. Finally, the April 2012 examiner based the opinion on a finding that the Veteran did not have carpal tunnel syndrome. Although the record reveals there has not been consistency in diagnosing carpal tunnel syndrome, the record does show that the Veteran has, on many occasions, been found to have carpal tunnel syndrome. As early as July 2007, a VA treatment record showed a diagnosis of mild carpal tunnel syndrome with sensory involvement only in the left upper extremity superimposed on his underlying polyneuropathy. It was noted that underlying diabetic neuropathy can be a risk factor for developing carpal tunnel syndrome. An EMG in July 2007 revealed an abnormal study showing mild left median neuropathy of the wrist (carpal tunnel syndrome), but there was no polyneuropathy, radiculopathy, or myopathy. A VA treatment record dated in July 2008 noted that the Veteran had right wrist symptoms similar to those in his left, which had "documented carpal tunnel syndrome", however, it was also noted that he described no typical carpal tunnel syndrome numbness. In August 2008, an EMG/NCS was interpreted as showing polyneuropathy, but the VA physician did not think a definitive statement about carpal tunnel syndrome could be made, noting that the test was somewhat invalidated by the lack of reference values. The Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall evidence of record fails to support a diagnosis of the claimed disability at any time during the pendency of the claim, that holding is inapplicable. Thus, in light of the fact that the Veteran has, at least at some point, been diagnosed with carpal tunnel syndrome, for purposes of this decision, he is considered to have carpal tunnel syndrome. Thus, what is needed in this case is competent medical evidence linking carpal tunnel syndrome to a service-connected disability. The Board notes that service connection has been granted for peripheral neuropathy of the right and left upper extremities, and acknowledges that there may be an overlap of symptomatology between carpal tunnel syndrome and peripheral neuropathy of the upper extremities. However, the extent to which the symptoms of these disabilities overlap, and the extent to which separate ratings are warranted for each of them, would be left to the agency of original jurisdiction charged with assigning these ratings in the first instance, if service connection were to be granted for carpal tunnel syndrome. See Esteban v. Brown, 6 Vet. App. 259 (1994). The Court has held that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). After reviewing the VA DBQ report from 2012, the Board concludes that such examination is inadequate and another is warranted. Based on the foregoing, the Board concludes that a medical opinion, on the question of whether the Veteran has carpal tunnel syndrome that is likely as not caused or aggravated by a service-connected disability, is needed. Stegall v. West, supra; Barr v. Nicholson, supra. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide information regarding any recent treatment he has received related to carpal tunnel syndrome. With any assistance needed from the Veteran, attempt to obtain any such treatment records. This should specifically include the 2011 EMG and 2011 C&P referenced by the VA examiner in 2012. Negative replies should be requested. 2. Return the claims folder to the April 2012 VA DBQ examiner who rendered the most recent opinion regarding the Veteran's carpal tunnel syndrome. Request that the examiner review the claims folder and note that such review has been accomplished. If the prior examiner is not available, or is unable to provide a supplemental opinion, forward the claims folder and a copy of this remand to another appropriate examiner(s) in order to render the requested medical opinions noted below. a. The examiner should offer an addendum and opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's carpal tunnel syndrome is due to or aggravated by his service-connected diabetes mellitus or is due to or aggravated by his service connected peripheral neuropathy. b. The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated, the examiner should clearly and specifically so specify, along with an explanation as to why that is so. c. If the original VA DBQ examiner (from April 2012) is not available, please forward this request to another qualified examiner in order to comply with the aforementioned request for an opinion. If deemed necessary by the examiner, an appropriate examination of the Veteran should be conducted. 3. Thereafter, readjudicate the issue on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, and he should also be given an opportunity to respond to the SSOC. The Veteran 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). _________________________________________________ FRANK J. FLOWERS 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).