Citation Nr: 1333559 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-35 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a right hand disability, to include as secondary to service-connected right shoulder disability or an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1989 to January 1993, including a tour of duty in the Southwest Asia Theater of Operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran filed a notice of disagreement (NOD) with this determination in March 2007, and timely perfected his appeal in November 2007. The Veteran reported for a hearing before the RO in February 2008. A written transcript of that hearing was prepared and incorporated into the evidence of record. On the November 2007 Substantive Appeal, the Veteran requested a personal hearing before a member of the Board at the local RO. The Veteran did not appear for his scheduled hearing in October 2010. He has not provided cause for that failure. The request is deemed withdrawn and the Board may proceed with the issue on appeal. 38 C.F.R. § 20.704(d) (2012). In August 2011, the Board remanded the claim on appeal for further development. This development has now been completed and the Board can proceed with the issue on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran served in Southwest Asia during his active military service. 2. The Veteran does not suffer from an undiagnosed right hand disorder. 3. The probative credible evidence of record does not demonstrate that the Veteran is currently diagnosed with carpal tunnel syndrome of the right hand. 4. The evidence does not demonstrate that the Veteran's currently diagnosed De Quervain's tenosynovitis and osteoarthriris/degenerative joint disease of the wrist, manifested during, or as a result of, active military service, nor are they secondary to his service-connected right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for carpal tunnel syndrome of the right hand have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for a grant of service connection for a right hand disability, to include as due to an undiagnosed illness or secondary to service-connected right shoulder disability, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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 in accordance with 38 C.F.R. § 3.159(b)(1). 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). Here, the duty to notify was satisfied by way of letters sent to the Veteran in March 2006, April 2006, and July 2006 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. The letters also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining the Veteran's service treatment records, VA and private medical records, and affording him VA examinations in connection with his claim in November 2006, March 2008, and October 2011. Additionally, a medical opinion was obtained in June 2012. The Board thus concludes that there are no additional records outstanding with respect to this claim. Consequently, the duty to notify and assist has been satisfied as to the claims now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) evidence of a current disability; (2) evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). 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. Certain listed disabilities may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. See 38 C.F.R. § 3.310(a) (2012). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Right Hand Disability The Veteran contends that his right tremor is due to an undiagnosed illness due to his service in the Persian Gulf. Additionally, the Veteran has also related his right hand disabilities to his service-connected right shoulder disability. The Veteran's service treatment records are void of any right hand complaints or diagnoses. In a December 2004 VA treatment record, the Veteran reported that he had shaky hands. He further stated that his hands shook with writing for the last seven to eight years, and seemed to be getting worse. This interfered with his ability to perform art. A March 2006 record noted that the Veteran complained of right hand symptoms, including numbness and tingling after work. The physician noted that the Veteran was given a steroid injection for right carpal tunnel and a night splint for the wrist. He further stated that if the Veteran's carpal tunnel did not improve, he would obtain an EMG to evaluate the extent of his right hand condition. The Veteran submitted a lay statement discussing his medical conditions and symptomatology. A March 2006 letter noted that the Veteran's shaky hands caused him both physical and mental anguish. She noted that the Veteran was an artist and drawing was a stress relief for him. Unfortunately, his hands shook uncontrollably and it affected his work, which would lead to additional mental distress. The Veteran was afforded a Gulf War VA examination in November 2006. The examination report noted that the Veteran served approximately six months in the Persian Gulf with the Air Force. While there, he drove tractor trailers transporting equipment and crew. The examiner noted that VA records showed treatment for arthralgia - pain in joints, and carpal tunnel syndrome (CTS). The Veteran reported that he was diagnosed with right carpal tunnel syndrome while working for the local newspaper. He also reported shaking of the right hand beginning in 2001, which had not changed since then. He denied any pain or parenthesis of the right hand. The examiner concluded that there were no additional diagnoses based on the examination. The examination did not find any tremor or shakiness of either hand. The condition reportedly began about the same time as his evaluation for work related carpal tunnel syndrome. This was not likely related to military service in the Persian Gulf. The examiner concluded that the Veteran did not at that time, have multisystem, medically unexplained illness (undiagnosed illness) related to military service in the Persian Gulf. The Veteran underwent an Electromyography (EMG) study in March 2007. The results showed that there was no evidence of right carpal tunnel syndrome or right C5-T1 radiculopathy. There was a positive Finkelstein's test at the right wrist and some tendonitis was noted at the base of the right thumb suggesting possible De Quervain's tendonitis. The Veteran submitted an April 2007 letter in reference to the March 26, 2007 EMG study that was performed. He stated that the results noted that he did not have carpal tunnel on the right hand and wrist. He also noted that the shaking of his hand and the numbness and swelling of the fingers, wrist, and hand, was indirectly due to the problems he was currently having with his right shoulder. In a February 2008 VA treatment record, the Veteran was noted to have a right hand tremor. The physician noted that he had undergone EMG and nerve conduction velocity (NCV) studies at the Milwaukee VA with no evidence of carpal tunnel syndrome. He was requesting a referral to Neurology for their opinion regarding the right hand tremor. He was concerned due to a family history of Parkinson 's disease. A March 2008 Neurology note documented reports of right hand shaking. The Veteran reported that the shaking began in 2001/2002, and the symptoms began out of the blue. There was no history of trauma to the hand or arm. He had two right shoulder surgeries. He reported pain, stiffness, weakness, and numbness in the hand and wrist. The physician concluded that the Veteran had a right hand tremor, and Parkinson's was an unlikely etiology. Additionally, she recommended strength exercises and a wrist splint, for possible carpal tunnel syndrome. The Veteran was afforded a VA examination in March 2008 VA to determine the etiology of his right hand disability. The Veteran believed that the pain and problems with his right hand were related to the nerves from his shoulder. He said that it started in 2006. He denied any trauma directly to his hand before military, during military service, or after military service. He stated that since 2006, he had increased "shakiness" involving only his right hand. The x-rays of the Veteran's right wrist/hand showed mild degenerative changes with mild narrowing of the radiocarpal joint space. The examiner diagnosed the Veteran with right median nerve mononeuropathy at the wrist (carpal tunnel syndrome) (peripheral nerve condition and wrist condition), and a tremor of the right hand. The etiology of the tremor was unclear. The examiner indicated that the Veteran's diagnosed conditions were less likely than not related to military service or to his service-connected right shoulder disability. The Veteran was afforded another VA examination in October 2011. The examiner noted the March 2008 diagnoses of right median nerve mononeuropathy at the wrist, degenerative or traumatic arthritis of the right hand, and right hand tremor of unknown etiology. The Veteran reported current complaints of shaking with such activities of writing or drawing, which was getting worse. Numbness and soreness were constant, along with shoulder pain. Aggravating factors were writing and drawing involving detailed work, weather changes, and sometimes day to day activities. His fingers were also constantly cold. The VA examiner noted that the EMG studies were normal. The examiner concluded that the diagnosis of carpal tunnel syndrome given in March 2008 was a clinical diagnosis, but was not supported by EMG tests that were done. Therefore, currently there was no carpal tunnel syndrome diagnosis. The x-rays that were done in March 2008 showed some mild DJD at the wrist joint and symmetric. This was consistent with the Veterans age and was not the cause of his symptoms except for tenderness noted on deep palpation of the radiocarpal joint. The tremor was inconsistent during the examination and did not show any pathological pattern. The examiner then concluded as follows: "At this time, his symptoms are likely than not related to any activities performed during the military service." The Board believes that the foregoing statement contains a typographical error and that the examiner means that the Veteran's symptoms are likely not related to service as this can only be the conclusion drawn when read in the context of the entire opinion. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (noting that a medical report must be read as a whole and on review of the report as a whole). Thereafter, the RO obtained an independent medical opinion in June 2012. The physician noted the Veteran's right hand symptomatology and the March 2008 and October 2011 VA examination findings. The examiner concluded that the current diagnosis of the right hand conditions was undetermined. The right hand symptoms were tremor (shaking) interfering with writing and drawing, pain, numbness, and cold fingers. Possible diagnoses included De Quervain's tenosynovitis and osteoarthritis/degenerative joint disease of the wrists. The examiner concluded that it was his independent opinion that the claimed right hand condition was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. Additionally, it was also his independent opinion that the claimed right hand condition was less likely than not (less than 50 percent probability) aggravated by or proximately due to or the result of the Veteran's service-connected right shoulder condition. The physician noted detailed rationales for the above stated opinions. He stated that there was nothing in the active duty health record to suggest that the Veteran had an injury or experienced the onset of right hand symptoms while on active duty. The negative EMG study was strong evidence against a diagnosis of right carpal tunnel syndrome or a radiculopathy with pain radiating to the right hand from the right shoulder or neck. The examiner addressed whether the history of the right shoulder injury while on active duty could have caused the tremor in the Veteran's right hand. The examiner explained that the issue of "peripherally induced movement disorders" versus psychogenic (in your head) was subject to debate, but not generally accepted. The positive Finkelstein's test and associated tendon tenderness suggested a possible diagnosis for the Veteran's right hand symptoms. De Quervain's tenosynovitis has a gradual onset and presents in the age group of the Veteran. The bilateral hand films with evidence of degenerative joint disease or osteoarthritis secondary to wear and tear supports this diagnosis. The physician included the medical literature reviewed for the offered opinions. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a right hand disability, to include as due to an undiagnosed illness or secondary to his service-connected right shoulder disability. As discussed above, the evidence does not show that the Veteran manifested arthritis of the right wrist during active military service. In addition, there is no medical evidence of record showing that arthritis was manifested during his first post-service year. Therefore, a presumption of service connection for arthritis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.307, 3.309. Moreover, the record does not contend credible evidence that the Veteran noted symptoms in service and continued to experience such symptoms ever since service. See service treatment records (containing no relevant complaints); November 2006 VA examination report (reporting that shaking of the right hand began in 2001); and March 2008 VA neurology note (reporting symptoms began in 2001/2002). The Board further notes that service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1131 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran's VA treatment records show a diagnosis and treatment for right hand carpal tunnel syndrome, EMG and NCV testing results show that there was no evidence of carpal tunnel syndrome. The October 2011 VA examiner concluded that the diagnosis of carpal tunnel syndrome given in March 2008 was a clinical diagnosis, but was not supported by EMG tests that were done. Therefore, currently there was no carpal tunnel syndrome diagnosis. Additionally, the Veteran's right hand symptomatology was related to different diagnoses of De Quervain's tendonitis and osteoarthritis/degenerative joint disease of the wrist. The etiology of these diagnoses will be further discussed below. Therefore, the requirement of a "current disability" of carpal tunnel syndrome is not satisfied as there is no probative credible evidence of right hand carpal tunnel syndrome diagnosed at the time the claim was filed or at any time during the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While there is medical evidence showing diagnoses of De Quervain's tendonitis and osteoarthritis/degenerative joint disease of the wrist, there is no medical evidence of record etiologically linking these diagnoses to the Veteran's military service. As previously mentioned, at the March 2008 VA examination, the Veteran denied any trauma directly to his hand before the military, during military service, or after military service. The October 2011 VA examiner noted that the x-rays that were done in March 2008 showed some mild DJD at the wrist joint and symmetric, which was consistent with the Veteran's age and was not the cause of his symptoms except for tenderness noted on deep palpation of the radiocarpal joint. Additionally, the June 2012 independent medical expert concluded that it was his medical opinion that the claimed right hand condition was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. He stated that there was nothing in the active duty health record to suggest that the Veteran had an injury or experienced the onset of right hand symptoms while on active duty. Additionally, the positive Finkelstein's test and associated tendon tenderness suggested a possible diagnosis of De Quervain's tenosynovitis for the Veteran's right hand symptoms. De Quervain's tenosynovitis has a gradual onset and presents in the age group of the Veteran. Further, the Veteran's degenerative joint disease or osteoarthritis were noted to be secondary to wear and tear and supported the diagnosis of De Quervain's tenosynovitis. As such, entitlement to service connection on a direct basis must be denied. Additionally, the Veteran contends that his right hand disability is secondary to his service-connected right shoulder disability. Specifically, he noted that the inflamed muscle and tendon damage in his right shoulder were the cause of his right hand symptomatology. The June 2012 independent medical expert concluded that it was his opinion that the claimed right hand condition was less likely than not (less than 50 percent probability) aggravated by or proximately due to or the result of the Veteran's service-connected right shoulder condition. The negative EMG study was strong evidence against a diagnosis of radiculopathy with pain radiating to the right hand from the right shoulder or neck. The expert stated that while "peripherally induced movement disorders" versus psychogenic was subject to debate, they were not generally accepted in reference to whether the Veteran's history of the right shoulder injury while on active duty could have caused the right hand disability. The Board notes that service connection may not be established on the basis of speculation. See 38 C.F.R. § 3.102 (2013) ("By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility."). Therefore, the Veteran's service-connected right shoulder disability did not cause or aggravate his right hand disability. Additionally, the Veteran has also asserted that service connection may be warranted under 38 C.F.R. § 3.317 due to his service in the Persian Gulf. Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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, 2011. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A "Persian Gulf Veteran" is one who served in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 C.F.R. § 3.317. A "qualifying chronic disability" includes: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the present case, x-ray results show that the Veteran has osteoarthritis/degenerative joint disease of the right wrist. Additionally, EMG studies show positive Finkelstein's test at the right wrist suggesting possible De Quervain's tendonitis. Since these are diagnosed disabilities, there is no basis for a grant of service connection due to an undiagnosed illness. Additionally, a medically unexplained chronic multi-symptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). The diagnoses of osteoarthritis/degenerative joint disease of the right wrist and De Quervain's tendonitis are not medically unexplained chronic multi-symptom illnesses. The development and effect of these disabilities are well-documented in the Veteran's medical history. Specifically, as stated above, VA examiners stated that the most likely cause of this Veteran's right hand De Quervain's tendonitis and arthritis was due to the Veteran's age and wear and tear. Additionally, the November 2006 VA examiner concluded that the Veteran did not have multisystem, medically unexplained illness (undiagnosed illness) related to military service in the Persian Gulf. The above opinions are based on a review of the claims file and examination of the Veteran, and the October 2011 and June 2012 opinions in particular are supported by rationales. The medical evidence of record persuasively shows that the Veteran does not have a right hand disability that is etiologically related to service or service connected disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's right hand disability is etiologically related to service or service-connected disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). Here, the expert medical evidence shows that there is no such relationship. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a right hand disability, to include as due to an undiagnosed illness or secondary to service-connected right shoulder disability, must be denied. ORDER Entitlement to service connection for a right hand disability, to include as secondary to service-connected right shoulder disability or an undiagnosed illness, is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs