Citation Nr: 1327879 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 03-12 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for bilateral carpal tunnel syndrome. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from January 1993 to January 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) New York, New York. The Board previously remanded this case for further development in July 2010 and March 2013. The issue of entitlement to service connection for ulcers was also on appeal. However, a June 2012 rating decision granted service connection for a gastrointestinal disability that includes ulcers; as such, the only claims remaining on appeal are set forth on the front page of this decision. AB v. Brown, 6 Vet. App. 35, 39 (1993). As noted in the Board's prior March 2013 remand, a Board hearing at the local RO with respect to the issues of service connection for the right and left knees was held before a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c). The Judge who presided at this hearing has since retired from the Board, and the Veteran was informed of her right to present testimony at another hearing before a Veterans Law Judge who could participate in any decision made on appeal pursuant to 38 U.S.C.A. § 7107(c) and 38 C.F.R. § 20.707 by letter dated in June 2012. In a response received from the Veteran in July 2012, she indicated that she did not wish to appear at another hearing. The Veteran's Virtual VA electronic record has been reviewed in conjunction with the appeal and includes additional VA treatment records dated from March 2013, which were considered by the RO in the most recent supplemental statement of the case issued in March 2013. The issues of entitlement to service connection for right and left knee disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all doubt in favor of the Veteran, bilateral carpal tunnel syndrome manifested during active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral carpal tunnel syndrome have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for bilateral carpal tunnel syndrome. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system like carpal tunnel syndrome, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). The Board also observes that for purposes of this analysis, carpal tunnel syndrome is primarily rated by analogy under 38 C.F.R. § 4.124a, Diagnostic Code 8515 for paralysis of the median nerve. Under this code, mild incomplete paralysis is rated as 10 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8515. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records showed that in June 1993, the Veteran presented with numbness in her fingers. The assessment was carpal tunnel syndrome. A follow up July 1993 record showed an assessment of bilateral cubital tunnel syndrome and possible slight carpal tunnel syndrome. Another record in June 1994 also showed a finding of carpal tunnel syndrome. Treatment records also continued to show findings of bilateral cubital tunnel syndrome. The Veteran was referred to a Physical Evaluation Board in July 1994 due to a diagnosis of bilateral cubital tunnel syndrome and was subsequently discharged from service. The Veteran was afforded a VA examination in July 1995. The diagnosis was possible bilateral cubital syndrome and mild ulnar nerve compression neuropathy on the right. However, an electromyograph (EMG) was recommended to rule out bilateral carpal tunnel syndrome. Another VA examination that same month showed that a nerve conduction study was performed on both extremities a few days prior and revealed values consistent with bilateral carpal tunnel syndrome. However, an EMG was not performed. The diagnosis was mild to moderate carpal tunnel syndrome bilaterally. A follow up August 1995 VA treatment record again showed treatment for carpal tunnel syndrome. Subsequently, a June 2000 private medical note again provided that the Veteran suffered from carpal tunnel syndrome. Additional VA examinations dated in August 2000 again showed an assessment of bilateral carpal tunnel syndrome, not confirmed by electrical testing. However, an August 2000 EMG indicated that there was no electrical evidence of carpal tunnel syndrome, although there were clinical symptoms. VA treatment records also continued to show a history of carpal tunnel syndrome. The Veteran filed her current claim for service connection in December 2005. In support of her claim, she submitted an October 2005 private treatment record, which again showed an assessment of carpal tunnel syndrome bilaterally. It was noted in the record that the Veteran had been referred for EMG/nerve conduction study. The Veteran was afforded a VA examination in April 2006. The Veteran's claims file was not available for review, but the examiner noted that a March 2006 private EMG showed an impression of right carpal tunnel syndrome. The assessment was carpal tunnel syndrome, right more than left. However, a March 2008 VA EMG study showed no evidence of median nerve compression at the wrists or ulnar nerve entrapment. The nerve conduction study was within normal limits with no evidence of carpal tunnel syndrome or ulnar neuropathy. However, a March 2008 VA examination again showed an assessment of bilateral carpal tunnel syndrome. On remand, the Veteran was afforded another VA examination in October 2010. The Veteran reported that she was diagnosed with bilateral carpal tunnel syndrome in 1993 and treated with wrist splints. Veteran reported chronic symptoms since that time. The examiner referred to the March 2008 EMG study and determined that there was no current diagnosis as prior EMG was normal and physical examination was also normal and not consistent with carpal tunnel syndrome. The Veteran was afforded another VA neurological examination the following month. The Veteran reported that numbness and tingling in her hands began while in service and the same symptoms had continued to the present. After examining the Veteran and reviewing the claims file, the examiner observed that the Veteran had a long history of complaints referable to carpal tunnel syndrome, but little objective evidence of this disability. There were equivocal changes noted at the right medial distal latency, which had remained the same for approximately 10 years where EMG date is available. The Veteran's complaints of sensory dysesthesias were of unclear origin and while these may be related to carpal tunnel syndrome, there was little evidence to back up this finding. The static nature of these difficulties comes from a period of almost 20 years, which was unusual. The examiner noted atypical carpal tunnel syndrome, as the lack of clearly demonstrable abnormalities consistent with carpal tunnel syndrome was very unusual. The origin of these complaints was unclear. However, a follow up VA EMG in September 2011 again showed an assessment of right carpal tunnel syndrome. In her statements of record and during the course of receiving treatment, the Veteran has consistently reported bilateral hand pain and numbness that have continued since service. Initially, the Board observes that there has been some inconsistency in the record as to whether the Veteran has a current disability. In particular, the October and November 2010 VA examinations, while noted subjective symptoms, found no objective evidence of bilateral carpal tunnel syndrome. However, numerous other medical records over the course of the appeal, to include an April 2006 VA examination, private treatment records and most recently a September 2011 VA EMG, do show a diagnosis of bilateral carpal tunnel syndrome. The Board observes that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the instant case, the Veteran filed her claim for service connection in December 2005. Follow up VA and private treatment records showed an assessment of bilateral carpal tunnel syndrome. As such, the Board finds that the criterion of having a current disability has been met. In turn, the main question with respect to this matter is whether the Veteran's bilateral carpal tunnel syndrome is etiologically related to service. After reviewing the totality of evidence of record, the Board finds that when resolving the benefit of the doubt in favor of the Veteran, service connection for bilateral carpal tunnel syndrome is warranted. Initially, the Board observes that service treatment records do show findings of bilateral carpal tunnel syndrome. Moreover, a July 1995 VA examination, which was performed within one year of the Veteran's discharge, also showed a diagnosis of mild to moderate bilateral carpal tunnel syndrome based on a nerve conduction study, albeit an EMG was not performed. Nevertheless, given the clinical diagnosis and objective findings of weakness and decreased sensation in the hands, the Board finds that when resolving the benefit of the doubt in favor of the Veteran, the Veteran's bilateral carpal tunnel syndrome was predominantly at a compensable level under Diagnostic Code 8515 for mild incomplete paralysis of the median nerve within a year of active service and, in turn, arguably presumed to have incurred during her active duty service. 38 C.F.R. §§ 3.307, 3.309. Moreover, the Veteran has also consistently reported that she has had ongoing symptoms since service, which is also supported by the medical evidence dating back to 1995. As such, the Board has no reason to doubt her credibility. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit recently reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, in the instant case, there is evidence of continuity of symptoms since service. See Walker, (cited above). In sum, based on the analysis above, given the evidence of symptoms and findings of bilateral carpal tunnel syndrome in service as well as at a compensable level within one year of discharge, lay evidence of pertinent symptomatology, and medical evidence of current disability, the Board finds that when resolving the benefit of the doubt in favor of the Veteran, service connection for bilateral carpal tunnel syndrome is warranted. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is cognizant that service connection has already been established for cubicle tunnel syndrome. However, the record also reflects diagnoses of carpal tunnel syndrome during the course of her claim. It is unclear what symptomatology is related to each specific diagnosis at this point in time, but that is a matter that may affect the eventual assigned rating rather than her actual entitlement to service connection. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in March 2006, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. She will have the opportunity to initiate an appeal from these "downstream" issues if she disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Service connection for bilateral carpal tunnel syndrome is granted. REMAND Although the Board regrets further delaying appellate review, the Board finds that further development is necessary with respect to the issues of service connection for the right and left knee disorders. In statements of record and at the Board hearing, the Veteran has reported that her bilateral knee pain began in service and has continued to the present. In the alternative, the Veteran has also asserted that her bilateral knee disabilities are secondary to her service-connected disabilities. The Veteran was afforded a VA examination in October 2010. After reviewing the claims file and examining the Veteran, the examiner determined that the Veteran's bilateral knee condition was less likely as not caused by or a result of service. The examiner rationalized that the service records did not document objective findings consistent with a high energy or chronic repetitive injury to the Veteran's knees. Thus, any microtrauma sustained during service, even in aggregate, would be insufficient to initiate and sustain a posttraumatic or inflammatory process, since the literature suggests a 10-year exposure as the threshold value. Moreover, the Veteran's body habitus could pre-dispose her to a primary injury to her left meniscus and bilateral osteoarthritis. However, the examination report did not address the competent lay statements made by the Veteran concerning her ongoing knee problems in service. Moreover, the VA examination did not provide an opinion as to whether the Veteran's bilateral knee disabilities were proximately due to, or aggravated by her service-connected disabilities that affected her legs, specifically her low back disability with associated bilateral lower extremity radiculopathy and bilateral plantar fasciitis. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Moreover, the Veteran has also asserted that her weight problems, which the VA examiner indicated could affect her knees, are a result of her service-connected psychiatric disorder. In other words, the Veteran has also asserted that psychiatric disorder has contributed to her knee disabilities, which has not been addressed by a VA examiner. The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, once VA undertakes the effort to provide an examination for 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, 311 (2007). Accordingly, given the deficiencies described above in the October 2010 VA examination report, the Board finds that another VA examination should be afforded to the Veteran to determine the nature, extent and etiology of the Veteran's bilateral knee disabilities. Lastly, the most recent VA treatment records associated with the Veteran's Virtual VA electronic record are dated from March 2013. As VA medical records are constructively of record and must be obtained, the RO should obtain VA treatment records dated from March 2013 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate all VA treatment records from March 2013 to present with the record. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding treatment records, the Veteran should be scheduled for an appropriate VA examination to determine the etiology of her right and left knee disorders. It is imperative that the claims file be made available to the examiner for review in connection with the examination, to specifically include these remand instructions. All medically necessary tests should be performed. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to the following: a) Whether it is at least as likely as not (a 50% or higher degree of probability) that any right and/or left knee disorders are causally related to the Veteran's service. b) Whether it is at least as likely as not (a 50% or higher degree of probability) that right and/or left knee disorders are proximately due to, or caused by, the Veteran's service-connected psychiatric disability, low back disability with associated bilateral radiculopathy of the lower extremities, and bilateral plantar fasciitis. c) Whether it is at least as likely as not (a 50% or higher degree of probability) that right and/or left knee disorders have been aggravated by the Veteran's service-connected psychiatric disability, low back disability with associated bilateral radiculopathy of the lower extremities, and/or bilateral plantar fasciitis. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A detailed rationale for all opinions expressed should be provided. The examiner should specifically address the Veteran's lay statements concerning pertinent symptomatology since service. The examiner should also review the October 2010 examiner's findings that the Veteran's body habitus could predispose her to knee disabilities and address the Veteran's contention that service-connected psychiatric disorder contributed to her weight problems, which resulted in her knee disabilities. 3. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 4. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and her representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). ______________________________________________ B. MULLINS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs