Citation Nr: 1328565 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 10-23 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral carpal tunnel syndrome. 2. Entitlement to temporary total evaluations for convalescence under 38 C.F.R. § 4.30, status post-surgical right carpal tunnel release surgery in October 2009 and left carpal tunnel release surgery in January 2011. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from May 1993 to May 1996 and from June 1996 to July 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 2013, the Board remanded this case for additional development, and it has been returned to the Board for further review. Potentially pertinent treatment records have been associated with the Veteran's electronic claims file in Virtual VA. These records have been reviewed and considered in connection with the claims decided herein. FINDINGS OF FACT 1. The Veteran did not exhibit bilateral carpal tunnel syndrome in service, bilateral carpal tunnel syndrome is not shown within one year after discharge from active duty service, and bilateral carpal tunnel syndrome is not otherwise shown to be associated with the Veteran's active duty service. 2. Service connection for bilateral carpal tunnel syndrome is not in effect. CONCLUSIONS OF LAW 1. Bilateral carpal tunnel syndrome was not incurred in or aggravated by service and cannot be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for entitlement to a temporary total convalescence rating following carpal tunnel release surgeries have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.400, 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes an evidentiary development letter dated in December 2009 in which the RO advised the appellant of the evidence needed to substantiate his carpal tunnel syndrome and temporary total disability rating claims. A letter issued in March 2011 again provided notice with respect to the temporary total rating claim. The appellant was also advised of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. These letters further advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claims, pursuant to the Court's holding in Dingess, supra. The Board acknowledges that the March 2011 letter was not provided prior to the initial adjudication of the temporary total rating claim in January 2010. This claim was subsequently readjudicated, however, most recently in a June 2013 supplemental statement of the case. Thus, the Board finds that any deficiency in the timing of this notice letter is harmless. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issues on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's service treatment records, VA medical records, and available private treatment records. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The RO arranged for the Veteran to undergo a VA examination in connection with his carpal tunnel syndrome claim in April 2013. The Board finds that the resulting examination report is adequate for the purpose of determining the service connection claim decided herein. This report reflects that the examiner reviewed the claims folder, including the Veteran's service treatment records. During the examination, the examiner elicited from the Veteran his history of complaints and symptoms, and provided clinical findings detailing the results of this examination. As will be discussed below, the examiner also explained the rationale behind the conclusion drawn through citation to medical principles and the facts of the Veteran's case. For these reasons, the Board concludes that the VA examination report in this case provides an adequate basis for a decision. The evidence of record provides sufficient information to adequately evaluate the claims. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Veteran has claimed entitlement to service connection for carpal tunnel syndrome, which he essentially claims originated during his military service as a result of his duties carrying heavy weapons as an infantryman. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first 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). Service connection may also be granted for chronic disabilities, such as organic diseases of the nervous system, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b)(2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). To establish a right to compensation for a present disability, a veteran 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' - the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's service treatment records reflect that his upper extremities were found to be clinically normal at the times of his February 1993, March 1996, and April 2001 examinations. The Board notes that the April 2001 examination occurred in connection with his separation from service shortly thereafter. He expressly denied any past or current symptomatology that was suggestive of carpal tunnel syndrome in medical history reports from those same dates. Otherwise, he neither complained of nor sought medical treatment for symptoms associated with carpal tunnel syndrome during service. In terms of post-service evidence of carpal tunnel syndrome, the earliest post-service indications of carpal tunnel syndrome appear in a March 2009 VA medical record. This record reflects that the Veteran reported having had numbness in the first three fingers of both hands for approximately one year. The same estimated timeframe appears in VA medical records from June 2009. There is no earlier documented medical evidence of carpal tunnel syndrome prior to March 2009. The record contains, in pertinent part, a March 2001 VA examination report in which the Veteran reported having suffered a right thumb injury in service. At the time of this examination, the Veteran expressly denied having any associated neurologic symptoms, and the only diagnosis of his right upper extremity at that time was of "[s]tatus post right thumb strain." The Veteran expressly denied any past or current carpal tunnel disease on a May 2001 medical evaluation in connection with potential private employment. He also denied any past or current numbness, tremors, or hand, wrist or arm problems on May 2001 private medical screening forms. In a December 2009 personal statement, the Veteran's then- fiancée described the Veteran's "long lived" numbness, fatigue, and loss of control in his hands. The Veteran himself has made various personal statements in which he has described having had numbness and carpal tunnel complications while performing his duties as an infantryman while serving in the military. The Veteran underwent a VA examination in connection with his claim in April 2013. The resulting examination report reflects that the examiner reviewed the Veteran's claims file, interviewed him, and conducted a thorough physical examination with appropriate testing. Based on the above, the examiner diagnosed bilateral carpal tunnel syndrome. The examiner opined that the Veteran's carpal tunnel syndrome was less likely than not incurred in or caused by service. The examiner's rationale was that there is no objective clinical evidence consistent with carpal tunnel symptoms or signs until 2009, which was eight years following service. The record documented that symptoms had been present for one year. The literature indicated that factors such as sustained wrist or palm pressure, prolonged wrist extension and flexion, repetitive hand and wrist use, work with vibrating tools, and use of the hands in cold temperatures could cause or aggravate carpal tunnel syndrome. The Veteran, however, reported that his carpal tunnel syndrome was related to his carrying of a rifle as an infantryman. The Veteran was also noted to have worked as a mail carrier and as a sanitizer for Bar-S-Foods, which also had the potential of these known causative and aggravating activities. Given the fact that there was no subjective symptomatology reported until 2009, the examiner could establish no link between the 2009 symptoms that were reportedly present for one year and the Veteran's carrying a rifle as an infantryman eight years prior. The examiner stated that, for a link to be established to a particular activity, one would expect to find complaints during the time period in which that activity was taking place or soon after. In this case, there was an eight-year gap between the Veteran's discharge date and the reported symptoms. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his of her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448- 9 (2000). In the case at hand, the examiner is a nurse practitioner who is qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159(a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). The examiner thoroughly reviewed the claims file and interviewed and examined the Veteran. She supported her opinion through citation to the facts of the Veteran's case and to pertinent medical principles related to the development of carpal tunnel syndrome. For these reasons, the Board finds the April 2013 VA examiner's opinion to be highly probative to the question at hand. The Board notes that the only contrary opinion of record comes from the Veteran himself, who believes there is a link between his in-service activities and his subsequent carpal tunnel syndrome. The Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters. A lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). However, as a lay person, the Veteran is not competent to offer testimony on a complex medical question such as linking his carpal tunnel syndrome to activities that occurred approximately eight years earlier. The Board has considered the Veteran's lay reports of in- service symptomatology. However, in light of his contemporaneous denials of pertinent symptomatology, including his express denial of carpal tunnel disease on a May 2001 employment medical questionnaire, the Board finds that the Veteran's multiple 2009 assertions of a one-year history of numbness and tingling in the hands, which was reported in the course of seeking medical treatment for carpal tunnel symptoms, to be more credible. In the absence of competent medical evidence of a link between the Veteran's carpal tunnel syndrome and his military service, service connection for carpal tunnel syndrome is not warranted. In summary, the Board finds that a preponderance of the evidence is against finding a link between the Veteran's carpal tunnel syndrome and his military service. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for carpal tunnel syndrome is not warranted. III. Temporary Total Disability Rating The Veteran has also claimed entitlement to temporary total disability ratings For purposes of convalescence following a right carpal tunnel release procedure that was performed in October 2009 and a left carpal tunnel release procedure that was performed in January 2011. Entitlement to a temporary total convalescence rating is warranted if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of post-operative convalescence; (2) surgery with severe post- operative residuals such as incomplete healed surgical wounds, therapeutic immobilization of a one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or, (3) immobilization by cast, without surgery, of one major joint or more. See 38 C.F.R. § 4.30(a). This regulation only authorizes the assignment of a disability rating and payment of compensation for service connected disabilities. As discussed above, service connection has been denied for bilateral carpal tunnel syndrome. Therefore, temporary total disability ratings in connection with convalescence following carpal tunnel release surgeries must be denied as a matter of law. In this case, the law, not the evidence, is dispositive, and the Board must deny the claim. See Mason v. Principi, 16 Vet. App. 129, 131-32 (2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to service connection for bilateral carpal tunnel syndrome is denied. Entitlement to temporary total evaluations for convalescence under 38 C.F.R. § 4.30, status post-surgical right carpal tunnel release surgery in October 2009 and left carpal tunnel release surgery in January 2011, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs