Citation Nr: 1333160 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-17 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for residuals of right thumb strain. 2. Entitlement to service connection for right thumb numbness to include right-side carpal tunnel syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to January 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for residuals of a right thumb injury, denied service connection for residuals of a mosquito bite, left arm, and granted service connection for bilateral hearing loss assigning a noncompensable rating. The Veteran filed a timely notice of disagreement to the above issues as well as to the denial of service connection for posttraumatic stress disorder from an August 2007 rating decision by the RO in Oakland, California. The Veteran subsequently filed a VA Form 9 perfecting his appeal only to the issue of service connection for residuals of a right thumb injury. Accordingly, that is the only issue currently before the Board on appeal. Jurisdiction was transferred from the RO in Cleveland, Ohio to the RO in Oakland, California in February 2008. In May 2009 the Veteran testified before a Decision Review Officer (DRO) at the RO; a transcript of the hearing is of record. The issue of service connection for residuals of a right thumb injury has been bifurcated to service connection for residuals of right thumb strain and service connection for right thumb numbness to include right-side carpal tunnel syndrome, as noted on the title page, to comport with the evidence of record. The Board notes that VA is free to dismember a claim and adjudicate it in separate pieces. Tyrues v. Shinseki 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012). See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. Residuals of right thumb strain had its onset during wartime service. 2. Right thumb numbness to include right-side carpal tunnel syndrome was not manifest during service, nor was an organic disease of the nervous system manifest within one year of separation. 3. Right thumb numbness to include right-side carpal tunnel syndrome is not attributable to service. CONCLUSIONS OF LAW 1. Residuals of right thumb strain was incurred in wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Right thumb numbness to include right-side carpal tunnel syndrome was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a), 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In regard to the claim for service connection for residuals of right thumb strain, the action taken herein below is favorable to the Veteran, and therefore a discussion of VCAA is not required at this time. In regard to the claim for service connection for right thumb numbness to include right-side carpal tunnel syndrome, proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in a January 2007 letter, prior to the initial adjudication of the claim in January 2008. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records post-service VA treatment records. The Veteran indicated that he had a carpal tunnel release in 1998. Those records were not obtained; however, there is no reasonable possibility that those records would assist the Veteran in substantiating his claim as the record already establishes that the Veteran had a carpal tunnel release in 1998 and the Veteran acknowledged in his April 2010 VA Form 9 that the carpal tunnel syndrome was related to his post-service employment. In addition, the Veteran was provided with VA examinations in November 2007 and June 2009. As the examinations included a review of the pertinent medical history, clinical findings, diagnoses, and was supported by medical rationale, the Board finds that the evidence is adequate to make a determination on this claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for service connection are thus ready to be considered on the merits. Legal Principles As an initial matter, the Board notes that the Veteran does not allege, and the evidence does not reflect, that the disabilities for which he claims entitlement to service connection are the result of participation in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system such as carpal tunnel syndrome, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Factual Background The Veteran's service treatment records show that he sustained an injury to his right thumb while in service. In February 1968 the Veteran complained of numbness in his right thumb and indicated that he initially injured his right thumb in 1966. He then complained of soreness in his right thumb in September 1968 and the military medical personnel reported a strain of the lateral ligament of the metacarpophalangeal joint of his right thumb. Upon a follow up examination in September 1968, the examiner noted that his thumb was "unimproved." At separation in January 1969, the Veteran reported that he sprained his right thumb in basic training in 1966. His separation examination was stamped with "positive answer found to be of no medical significance." The Veteran was afforded a VA examination in January 2007 for his thumb. Upon examination, the Veteran reported that he initially injured his thumb in basic training in 1966 and then reinjured his right thumb in 1968 when he fell on his right hand. The examiner noted that the Veteran was found to have a strain which was noted as "unimproved" at a follow up examination. The Veteran reported numbness and tingling in his right thumb since service and that he lacks strength in his right thumb. The Veteran stated that he has mild to moderate flare ups of the joint in his thumb approximately two times per week lasting for hours. The examiner noted that the Veteran had a carpal tunnel release in 1998 and the Veteran indicated he did not know whether his current condition was related to the carpal tunnel release or not. Upon physical examination and range of motion testing, the examiner noted that the Veteran's thumb appeared normal regarding both strength and dexterity. The radiographic imaging also revealed no evidence of arthritic change, fractures, or previous injury. The examiner diagnosed the Veteran with status post right thumb injury with a DeLuca score of 0 and normal radiographs, and status post carpal tunnel release right wrist. The examiner requested a nerve conduction study to determine whether the transient numbness and tingling was related to his carpal tunnel syndrome residuals or the in-service right thumb injury. In May 2009 the Veteran testified a hearing with the DRO at the RO. The Veteran testified that while in service he initially injured his thumb in basic training and then reinjured his thumb while in Vietnam. He indicated that he sought treatment and was given medication and an ace bandage while in service. He stated that he has constant pain and takes Tylenol for the pain. He further reported that his injury affects his ability to lift and grab with his thumb including his ability to grasp and manipulate tools, automobile handles, and door handles. The Veteran stated that it does not affect his writing because he has learned to live with the pain. The Veteran was afforded a VA nerve conduction study relating to his thumb in June 2009. The examiner noted that the Veteran injured his right thumb in basic training in 1966 and again in 1968. The examiner further noted that while working for the state unemployment office, the Veteran complained of numbness of the right thumb. In 1998 the Veteran had a carpal tunnel release and a right ulnar nerve transposition at the right elbow. The examiner reported that both of those issues were related to the Veteran's post-service employment. The Veteran reported his current symptomology included difficulty opening jars and bottles with his right hand, which started within the past three years. He further reported numbness on his right hand, thumb, and on the right thumb base on the palmar aspect with discomfort in his right thumb joint which was worse when using his thumb or apply pressure on his wrist. Upon examination of the motor system, the examiner noted no difference in the handgrip on the right or left side. The examiner further noted no real weakness to the right hand muscles except that he is unable to extend the distal phalanx at the distal interphalangeal joint of the right thumb as much as he can do the left side. Examination of the sensory system revealed reduced sensation to pinprick on the right thumb and right thenar area corresponding to the right median nerve distribution. Tinel signs were positive on the right ulnar nerve and left median nerve. Nerve conduction studies showed minimal residual carpal tunnel syndrome on the right side and mild left-side carpal tunnel syndrome. The examiner reported that the Veteran had a history of injury to his right thumb causing strain during military service and opined that the condition is stable and unchanged. He further opined that the Veteran has minimal residual right-side carpal tunnel syndrome, caused by the Veteran's post-service employment, which explains the numbness in the Veteran's thumb. Residuals of Right Thumb Strain The Veteran contends that he currently has residuals from right thumb strain incurred during service. The Board notes that the Veteran's contentions regarding the current numbness as residual to the in-service injury will be addressed below. As discussed above, the Veteran injured his right thumb during basic training in 1966 and then again in Vietnam in 1968. The Veteran's service treatment records show he had a strain of the lateral ligament of the metacarpophalangeal joint of his thumb that was "unimproved" in September 1968. Upon separation in January 1969, the Veteran also noted that he sprained his right thumb in 1966. An in-service injury of the right thumb is therefore established. The Veteran testified at the DRO hearing in May 2009 and stated in his April 2010 VA Form 9 that he continues to have pain and weakness in his right thumb. At the hearing he also testified that he has learned to live with the pain since the in-service injury. The Board acknowledges the Veteran is competent to report as to the observable symptoms he experienced, such as an onset of his symptoms of a right thumb injury and his current symptomology. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The June 2009 VA examiner reported that the Veteran had a history of injury to the right thumb causing strain during military service. The examiner also reported that there was some limited motion at the distal interphalangeal joint of the right thumb. He further opined that the condition is stable and unchanged. As the examiner acknowledged the Veteran's in-service injury and found the condition to be "unchanged," he implicitly also acknowledged that the Veteran currently has residuals from the in-service right thumb strain. The evidence weighing against the Veteran's claim includes the November 2007 examination report. Upon examination, the examiner noted the Veteran's thumb is morphologically normal and the Veteran has normal strength and dexterity. Radiographic imaging of the thumb also revealed no evidence of arthritic changes, fractures, or previous injury. Upon careful review of the evidence of record, the Board find that the weight of the evidence reflects that the Veteran currently has residuals from his in-service right thumb strain, including the limited motion at the distal interphalangeal joint. The June 2009 VA examiner's opinion is afforded great probative value as it is based on a thorough review of the record, clinical findings, and supported by medical rationale. That examination report is also based upon neurodiagnostic testing which the November 2007 examiner did not conduct and the November 2007 examiner recommended be performed to determine the etiology of the Veteran's disabilities. The Veteran's lay statements are also consistent with the June 2009 VA examination report. To the extent that the Veteran has any weakness in his right thumb, it is not clear whether the weakness is due to the right-side carpal tunnel syndrome or the residuals of the right thumb strain. As such, any weakness shall be attributed to the Veteran's residuals of right thumb strain. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). In sum, the Board finds that service connection for residuals of a right thumb strain is granted because the probative evidence reflects the Veteran's current residuals of right thumb strain are related to his in-service right thumb strain. Right Thumb Numbness to Include Carpal Tunnel Syndrome The Veteran contends that he has numbness in his right thumb as residual from an in-service right thumb injury. As discussed below, the current numbness is due to the Veteran's right-side carpal tunnel syndrome. As such, the Veteran's claim has been expanded to include right-side carpal tunnel syndrome. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The first and perhaps most fundamental requirement for any service connection claim is the existence of a current disability. In this case, the June 2009 VA examiner noted reduced sensation to pinprick on the right thumb of the palmar aspect and the right thenar area corresponding to the right median nerve distribution. The examiner also reported the Veteran had right-sided carpal tunnel syndrome with minimal residuals and numbness. Consequently, it is undisputed the Veteran currently has numbness and residuals of right-sided carpal tunnel syndrome. In regard to whether the Veteran's current right thumb numbness to include right-side carpal tunnel syndrome manifested in service, the Board acknowledges that the Veteran complained of numbness in his right thumb during service and, as above, injured his right thumb in service. Therefore, the Board finds that the Veteran has an in-service right thumb injury. The Board, however, finds that the evidence of record weighs against a finding that the Veteran's current right thumb numbness to include right-side carpal tunnel syndrome is related to service to include his in-service right thumb injury. Significantly, the Veteran was afforded a VA examination in June 2009 to determine whether the numbness in the right thumb was related to residuals of carpal tunnel syndrome or the in-service right thumb injury. The examiner noted that the Veteran had a carpal tunnel release and a right ulnar nerve transposition in 1998. After examination of the Veteran's motor system, reflexes, sensory system, and review of the neurodiagnostic studies, the examiner opined that the Veteran's numbness of the right thumb in the distribution of the right median nerve was a result of residuals from the right-sided carpal tunnel syndrome. The examiner further opined that the Veteran's right-sided carpal tunnel syndrome was related to his post-service employment. Overall, this medical opinion is thorough, supported by an explanation, based on a review of the claims file, and supported by the Veteran's medical records. The Board finds that this negative medical opinion is entitled to great probative weight against the claim. The Board notes that the Veteran also acknowledged in his VA Form 9 that his right-side carpal tunnel syndrome was related to his post-service employment and not to his in-service right thumb injury. As such, the Board finds that the Veteran's right-side carpal tunnel syndrome is not related to the Veteran's service. The Board has considered the Veteran's lay statements, including in his VA Form 9, that his thumb numbness is due to his in-service right thumb injury and not his right-side carpal tunnel syndrome. The Board acknowledges the Veteran is competent to report as to the observable symptoms he experiences, such as an onset of his symptoms and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d 1372 at 1376-77. However, competence must be distinguished from probative weight. The question of whether the Veteran's current numbness is a result of his right-side carpal tunnel syndrome or his in-service right thumb injury is a complex medical matter as to an internal medical process that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Thus, to the extent the Veteran asserts that his current right thumb numbness is a result of his in-service right thumb injury, his testimony is in conflict with the VA medical examiner. The Board, therefore, finds that the probative weight of the evidence is against the Veteran's claim. The Board is also entitled to weigh the credibility of the evidence based on internal consistency and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). In regard to the onset of the Veteran's current numbness, the Veteran indicated in his VA Form 9 and upon VA examination in November 2007 that he has experienced numbness and tingling in his right hand since service. However, upon a general VA examination in October 2006, the Veteran indicated that he had no weakness, tingling, or numbness. At the VA examination in June 2009, the Veteran also indicated that the numbness started approximately three years prior to the examination. In regard to whether the numbness is due to the in-service right thumb injury, in the Veteran's April 2010 VA Form 9, he states that his current numbness is due to his in-service injury and not his right-side carpal tunnel syndrome. Upon VA examination in November 2007, however, the Veteran indicated that he could not differentiate whether his current right thumb numbness was due to his carpal tunnel syndrome or not. These lay statements found in medical records may be afforded greater probative value. As the records were generated with a view towards ascertaining the Veteran's then state of physical fitness, they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Because the Veteran has an organic disease of the nervous system, the Board has considered the provisions of 38 C.F.R. § 3.303(b). Although the Veteran complained of numbness during service, nothing in the service records suggests that he had carpal tunnel syndrome at that time or within one year of separation from service. In fact, the neurologic system was normal at separation. Therefore, it is concluded that despite the complaint of numbness, carpal tunnel syndrome was not noted or diagnosed during service. Furthermore, there is no competent evidence that he had characteristic manifestations of carpal tunnel syndrome during service. Equally important, it has been determined that the carpal tunnel syndrome is due to post-service events. Therefore, it necessarily follows that he did not have continuity of symptomatology. In sum, section 3.303(b) does not assist the Veteran in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In sum, the Board finds that service connection for right thumb numbness to include carpal tunnel syndrome must be denied because the weight of the evidence is against his claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for residuals of right thumb strain is granted. Service connection for right thumb numbness to include right-side carpal tunnel syndrome is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs