Citation Nr: 1330882 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 07-12 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a disorder of the bilateral arms and hands, as separate from service connected carpal tunnel syndrome and to include as due to an undiagnosed illness. 2. Entitlement to service connection for chronic sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from November 1993 to October 1996 and from January 2003 to February 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. Jurisdiction is currently with the RO in Salt Lake City, Utah. The Board has reviewed the Veteran's claims file and the Veteran's electronic file system to insure a total review of the evidence. This case was remanded in February 2010, November 2012 and May 2013 to the RO via the Appeals Management Center (AMC) in Washington, D.C. The appeal is ready for appellate review. FINDINGS OF FACT 1. Bilateral arm and hand pain are attributable to service connected carpal tunnel syndrome 2. Sinusitis was incurred during or as a result of active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a disorder of the bilateral arms and hands, as separate from service connected carpal tunnel syndrome and to include as due to an undiagnosed illness, have not been met. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.2, 3.303, 3.317 (2013). 2. The criteria for entitlement to service connection for sinusitis are approximated. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.2, 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. The duty to notify was satisfied by letters sent to the Veteran in March 2004 and May 2005. These letters informed the Veteran of what evidence was required to substantiate her claims, as well as of VA and the Veteran's respective duties for obtaining evidence. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted private treatment records, and testified during a January 2007 informal hearing before the RO. The appellant was afforded a VA medical examination in December 2004 and March 2010. The March 2010 examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Merits of the Claims The Veteran contends that she has a disorder of both arms and hands, separate from her now service-connected bilateral carpal tunnel syndrome. However, the preponderance of the evidence is against such a finding and the appeal will be denied. The Veteran also argues that she incurred a sinus disorder while on active military duty. The evidence is in approximate balance as to this claim, and the appeal will be granted. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). VA is authorized to pay compensation to any Persian Gulf veteran suffering from a "qualifying chronic disability." A "qualifying chronic disability," includes (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B) (West 2002). To obtain service connection for an undiagnosed illness or combination of undiagnosed illnesses, a veteran needs to show (1) that he or she is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) that have become manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016 and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a) (2013). Manifestations of an undiagnosed illness or multisymptom illness include, but are not limited to, fatigue, headache, muscle pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, or abnormal weight loss. 38 C.F.R. § 3.317(b). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period are considered chronic. 38 C.F.R. § 3.317(a)(ii)(4). The Veteran qualifies as a "Persian Gulf veteran." The Veteran's DD Form 214 notes she alternated service between Iraq and Kuwait from March to December 2003. Both countries are within the area defined as the Southwest Asia theatre of operations. See 38 C.F.R. § 3.317(e)(2). Further, she served in Southwest Asia during the Persian Gulf War. See 38 C.F.R. § 3.2. Disorder of Bilateral Hands and Arms Regarding claimed symptomatology, the Veteran has reported a consistent history of pain and numbness in her hands and arms. At her January 2007 informal hearing before the RO, she described traveling frequently in convoys while deployed and reported that the ride was very rough. Bilateral carpal tunnel syndrome and a bilateral shoulder disability are service connected. The Veteran's service treatment records are negative for any evidence of a condition of the hands and arms separate from the Veteran's service connected bilateral carpal tunnel syndrome. There is no documentation of any injury or trauma to the upper extremities. During a December 2004 examination, the Veteran claimed she had arthritis of the bilateral arms and hands. She stated that her disorder began while mobilized in Iraq. She was not receiving treatment for her claimed disorders at that time. Initially, the Veteran was diagnosed with osteoarthritis of the bilateral fingers. She was also diagnosed with impingement syndrome of the right shoulder. In an addendum, following a review of the Veteran's x-rays, the examiner noted mild degenerative arthropathic change about the shoulders, manifested by subchondral sclerosis and marginal spurring, however the findings did not suggest inflammatory arthritis of the bilateral shoulders or elbows. Further, despite the x-ray results, the examiner clearly stated that "X-ray reports of the shoulders and elbows do not report arthritis." The examiner did not clarify this statement, nor did he provide an opinion as to whether either disorder was related to the Veteran's periods of active service. X-rays of the bilateral hands were normal, and the examiner diagnosed the Veteran with bilateral carpal tunnel syndrome. However, it was not clear as to whether this diagnosis was intended to replace the earlier impression of osteoarthritis of the bilateral fingers. In March 2010, the Veteran was afforded a new VA examination. The Veteran described symptoms of swelling, weakness, and stiffness. She denied any specific trauma to the fingers, but stated that during her 2003 deployment in Iraq, her PIP joints became swollen, stiff, and painful. She also complained of bilateral arm and shoulder pain, which she attributed to rough rides in steel-interior vehicles while deployed. However, on examination, the Veteran's hands were normal in appearance, and she was able to flex and extend her fingers in a normal fashion. No decrease of hand strength or dexterity was found. Range of motion of the fingers was normal. Some crepitus in the shoulders was noted bilaterally in the AC joint, but the Veteran had full range of motion. The Veteran also had full range of motion of the elbows and forearms bilaterally, with no objective findings of pathology. There was no x-ray evidence of arthritis. The examiner concluded that there was insufficient evidence to diagnose any acute or chronic condition of the bilateral hands or arms and that the Veteran's symptoms are more likely than not due to her bilateral carpal tunnel syndrome. The preponderance of evidence shows that carpal tunnel syndrome is the only disability of the hands and arms with which the Veteran has been diagnosed. Therefore, entitlement to service connection for another diagnosed disability of the hands and/or arms cannot be granted. Additionally, the March 2010 VA examiner has opined that the Veteran's symptoms of pain, weakness, and numbness in the hands and arms are more likely than not due to her already service connected bilateral carpal syndrome. Accordingly, service connection for an undiagnosed illness under 38 C.F.R. § 3.317 is not warranted. The Veteran is competent to testify that she has pain, numbness, and weakness in her hands and arms. However, these symptoms have been attributed to her service connected bilateral carpal tunnel syndrome and there is no competent evidence suggesting another cause. The Veteran is not competent to diagnose an alternate etiology for these symptoms. Service connection for a disorder of the bilateral arms and hands, other than the presently service-connected carpal tunnel syndrome is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). Sinusitis The Veteran is also seeking entitlement to service connection for chronic sinusitis. In a July 2007 statement in support of her claim, the Veteran described "frontal pain" of over 10 years duration and described exposure in service to a number of environmental contaminates, including bird feces, asbestos, and burn pits for human waste and medical supplies. Service treatment records document that in September 1994 and March 2003, the Veteran was diagnosed with and treated for sinusitis. In October 1996, the Veteran reported a history of sinus problems during an ophthalmology examination. In February 2003, the Veteran was also treated for cold symptoms, including sinus symptoms, attributed to an upper respiratory infection. On a December 2003 post-deployment questionnaire, the Veteran reported exposure to multiple respiratory irritants, including smoke from oil fires and burning trash, dust and sand, vehicle exhaust, asbestos, and bird feces. She complained of respiratory symptoms including chronic cough, runny nose, and difficulty breathing. A March 2004 CT scan showed very minimal mucoperiosteal thickening in the right maxillary sinus. A December 2004 VA contract examination noted a diagnosis of chronic sinusitis, based on reported chronic sinus pain and objective factors of maxillary tenderness and radiographic findings of sinusitis. However, no etiological opinion was rendered. At a March 2010 VA examination, the Veteran reported intermittent symptoms of "a clear liquid" in her left nostril with facial burning and a swelling sensation. The VA examiner noted there was no noted sniffling, congestion, post-nasal drip or dry coughing during the 4-hour examination. The examiner stated that there was insufficient clinical and laboratory evidence to warrant an acute or chronic condition or any residuals of sinusitis. Given the lack of current symptomatology, no diagnosis or etiological opinion was rendered. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet.App. 52 (1993); see also Massey v. Brown, 7 Vet.App. 204 (1994). The Board presently grants the appeal. Even if the previously diagnosed chronic sinusitis has resolved, which is unclear from the record, the disorder was diagnosed during the current appeal period. Under the law, the Veteran has established a "current disability" for the purposes of service connection. See generally McClain v. Nicholson, 21 Vet. App. 319 (2007) (a current disability exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim). The Board is cognizant that a June 2013 examiner did not find the disability. However, the examiner appears to have relied on the Veteran being treated once during service. As noted, the Veteran was treated during service on several occasions, and she has been consistent in her subjective and competent, and presumably credible reports of the history of disorder. The law does not require an absolute certainty for a claim to be granted. The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance, and this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. The Board does not express any opinion as to the disability rating to be assigned, as that will be determined by the RO in the first instance. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). ORDER Service connection for a disorder of the bilateral arms and hands, as separate from service connected carpal tunnel syndrome is denied. Service connection for sinusitis is granted. ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs