Citation Nr: 1333563 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 13-04 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome of the right (dominant) upper extremity. 2. Entitlement to an increased rating for a right hand disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969. These matters come before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the benefits sought on appeal. With respect to the second issue listed on the title page, the Board observes that the Veteran has submitted argument, through his representative, which supports an increased rating for a service-connected right hand disability (residuals of trauma to the third finger of the right dominant hand, with tender scar, to include residuals of a donor graft site, volar aspect of the right wrist). See May 20, 2013 Written Brief Presentation by The American Legion. Such a claim was denied in a July 2012 rating decision, but has not yet been addressed in a statement of the case (SOC). Accordingly, the Board has assumed jurisdiction of the issue for the limited purpose of remanding it for a SOC, as discussed in further detail below. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). As a final introductory matter, the Board recognizes that, in addition to the above-captioned issues, the Veteran has perfected appeals of claims for an increased rating for nasal fracture residuals and for service connection for breathing and snoring disorders. Those claims have been addressed in a concurrent decision issued under separate cover. The issue of entitlement to an increased rating for a right hand disability is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's carpal tunnel syndrome did not have its onset during his active military service, or within the initial post-service year, and is otherwise unrelated to any aspect of his service, including his service-connected right-hand disability. CONCLUSION OF LAW The criteria for service connection for carpal tunnel syndrome of the right (dominant) upper extremity have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran alleges that in addition to the right-hand disability for which VA benefits have been established, a separate award of service connection is warranted for carpal tunnel syndrome which affects his right (dominant) upper extremity. However, for the reasons set forth below, the Board finds that the evidence of record is insufficient to grant his service-connection claim. The Veterans Claims Assistance Act of 2000 (VCAA) Prior to reaching the merits of this appeal, the Board must address VA's duties to notify and assist pursuant to the VCAA. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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). In addition, the VCAA notice requirements apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, 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 established. Id. at 486. VCAA notice must generally be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, the VCAA notice provisions were satisfied through a January 2012 letter, which advised the Veteran of the evidence needed to substantiate his claim for service connection for right-hand carpal tunnel syndrome, as well as the division of responsibilities that he and VA shared in developing the appeal. That letter also explained the types of information and evidence needed to establish a disability rating and an effective date, even though such notice has now been rendered moot by the Board's decision to deny service connection in the instant case. In light of the above VCAA notice letter, which was sent prior to the July 2012 rating decision on appeal, the Board finds that no further development is required with respect to the duty to notify. Nor is any further development necessary regarding the duty to assist. The AOJ has obtained the Veteran's service treatment records (STRs), as well as all post-service Federal and private records that he has identified in connection with his claim. Significantly, there is no indication of any outstanding records that are necessary to decide this appeal. In addition to records procurement, the AOJ has assisted the Veteran by affording him a January 2012 VA examination, which has yielded a medical opinion addressing the nature and etiology of his carpal tunnel syndrome. Despite expressing dissatisfaction with that opinion, the Veteran has not alleged, and the record has not otherwise shown, that it is inadequate to rate his service-connection claim. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007). As such, the Board considers it unnecessary to remand for a new examination or opinion in support of that issue. The Board also considers it unnecessary to remand for a hearing as the Veteran has expressly waived his right to testify before a Veterans Law Judge. See January 30, 2013, Substantive Appeal. Accordingly, the Board finds that the duties to notify and assist have been fully met and, thus, appellate review may now proceed without prejudice to the Veteran. Merits of the Claim for Service Connection The Veteran contends that he developed carpal tunnel syndrome during his service as a military policeman, when he intervened in a number of physical altercations that required him to use his fists. In essence, he asserts that these violent encounters resulted in permanent upper extremity nerve damage in addition to the right-hand disabilities for which service connection has already been granted (i.e., residuals of trauma to the third finger of the right dominant hand, with tender scar, to include residuals of a donor graft site, volar aspect of the right wrist, currently rated as 10 percent disabling, and residuals of a dorsal laceration of the right hand, currently rated as noncompensably disabling). In light of the Veteran's account of in-service incurrence, and his assertion of a shared etiology between his carpal tunnel syndrome and service-connected disabilities, the Board will consider his claim under both direct and secondary theories of entitlement. Moreover, given that carpal tunnel syndrome arguably falls within the category of other diseases of the nervous system contemplated by 38 C.F.R. § 3.309(a), the Board will also consider whether service connection is warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309, 3.310; see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (noting that Board is required to consider all theories of entitlement raised either by the claimant or by the evidence of record). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for a disease or injury that is proximately due to or the result of a service-connected disability, which includes the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). The Board notes that VA amended its regulation pertaining to secondary service connection, effective October 10, 2006. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). The amendment appears to place additional evidentiary burdens on claimants seeking service connection based upon a theory of aggravation, specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the alleged worsening. In this regard, the Board acknowledges that revised VA regulations cannot be applied to pending claims if they have impermissibly retroactive effects. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board finds that this restriction is not applicable to the Veteran's carpal tunnel claim which arose following the enactment of the regulatory change at issue. In addition to the foregoing theories of direct and secondary entitlement, service connection may be rebuttably presumed for certain chronic diseases, including other disorders of the nervous system, listed under 38 C.F.R. 3.309(a). Service connection for such diseases may be granted, on a presumptive basis, if they manifest to a compensable degree in service or within the initial post-service year, unless the evidence clearly shows that VA benefits are unwarranted. See 38 C.F.R. §§ 3.307, 3.309. Service connection for those diseases may also be presumed based upon a showing of continuity of symptomatology, which may be demonstrated, in certain cases, through lay evidence. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). To establish service connection under any of the above theories of entitlement, the Veteran must meet the evidentiary requirements of his claim, while the Board must assess the competency and credibility of the evidence presented so as to determine its overall probative weight. See Fagan v. Shinseki, 573 F. 3d 1282, 1287-88 (2009) (noting that the claimant bears the burden of establishing all of the elements of his claim, including the nexus requirement); see also Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ('a legal concept determining whether testimony may be heard and considered') and credibility ('a factual determination going to the probative value of the evidence to be made after the evidence has been admitted'). In circumstances where there is an approximate balance of positive and negative evidence, the Board must afford the Veteran the benefit of the doubt. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C.A. § 5107(b)). Moreover, the Board must not ignore or disregard any medical professional's opinion, but may favor one such opinion over another by providing an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). Factors for discerning the probative value of medical opinion evidence include whether the opinion is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay evidence of record. This includes any evidence not requiring that the proponent have specialized education, training, or experience. Such evidence will be deemed competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence may also be competent and sufficient to support a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. Once the competency of lay evidence has been established, its credibility must be weighed according to factors such as self-interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, consistency with other evidence of record, malingering, desire for monetary gain, and the demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board now turns to the pertinent evidence at issue in this appeal. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). The Veteran's service records confirm that he was treated for injuries incurred in the line of duty as a military policeman, most significantly in 1968, when he suffered a nasal fracture and right hand trauma. However, those records do not show that he sustained any permanent residual nerve damage to his right upper extremity. Nor do those records reveal any other in-service complaints or clinical findings of neurological abnormalities suggestive of carpal tunnel syndrome. In contrast, the Veteran's private medical records reflect extensive post-service treatment for numbness and tingling in his dominant right hand. Specifically, a report of a November 2011 private neurological evaluation shows that the Veteran complained of such symptoms following a August 2011 accident in which the automobile he was driving was "T-boned" by another vehicle. Concurrent electromyogram (EMG) and nerve conduction velocity studies yielded clinical findings of bilateral carpal tunnel syndrome. The examining private clinician opined that this diagnosis was likely not the cause of the Veteran's current neurological complaints, but did not indicate whether it was instead causally related to any aspect of his military service. Similarly, none of the other evidence submitted by the Veteran has addressed the question of in-service nexus. However, this question has been answered in the negative by the VA clinician who administered a January 2012 peripheral nerves examination in support of the Veteran's claim. Based upon a review of the private EMG and nerve conduction studies, and the other pertinent evidence of record, that VA examiner opined that the Veteran's carpal tunnel syndrome is less likely than not due to his service-connected disabilities, noting: Medical evidence/current medical literature does not support that the [Veteran's] type of [in-service] hand injury would cause carpal tunnel syndrome years later. [The Veteran] has symmetric carpal tunnel syndrome in the bilateral hands making the carpal tunnel syndrome most likely not from an injury. See January 2012 VA Peripheral Nerves Examination Report. The Board finds the January 2012 VA examiner's opinion to be both competent and credible and, thus, entitled to substantial probative weight. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (noting that the competency, credibility, and weight to be attached to medical opinions are within the province of the Board as adjudicators). In reaching this determination, the Board considers it significant that the VA examiner predicated his opinion on a complete review of the claims file and provided a rationale in support of his findings. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri, 4 Vet. App. at 470-71; Swann v. Brown, 5 Vet. App. 229, 232 (1993) (noting generally that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated). Moreover, the VA examiner's opinion is consistent with the other competent evidence of record, none of which suggests a nexus between the Veteran's carpal tunnel syndrome and service-connected disabilities. As such, that examiner's opinion signals an understanding of the salient facts of the case, thereby providing an adequate evidentiary foundation upon which the Board can base its decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (noting that while the Federal Rules of Evidence are not binding on the Court, nor on the Board, the rules on expert witness testimony provide useful guidance in assessing the probative weight of medical opinions); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). Having thus established that the January 2012 VA examiner's opinion is probative for rating purposes, the Board finds that it is sufficient to show that the Veteran is not entitled to service connection on a secondary basis. Indeed, the VA examiner's opinion makes clear that the Veteran's bilateral carpal tunnel syndrome is wholly unrelated to the in-service injury residuals for which VA benefits have been established. Conversely, the foregoing VA opinion does not expressly address whether direct service connection is warranted. Nevertheless, the opinion indicates that the Veteran has symmetric, bilateral carpal tunnel syndrome that is "most likely not from an injury" (emphasis added). That finding is significant since, as noted previously, the Veteran has alleged that his carpal tunnel syndrome arose coincident with the right-hand trauma he incurred in service. He has not alleged, and the record has not otherwise shown, any factual basis for direct service condition that does not involve a history of in-service injury. Thus, by ruling out such injury as the basis for the Veteran's carpal tunnel syndrome, the VA examiner has effectively refuted the only theory of direct in-service incurrence presented in this case. Accordingly, the Board finds that the overall evidence of record does not support the Veteran's claim for service connection on a secondary or direct basis. Nor does the record indicate that such benefits are warranted on a presumptive basis. To prevail under such a theory of entitlement, the Veteran would need to show that his carpal tunnel syndrome manifested to a compensable degree in service, or within the initial post-service year, or else demonstrate that the disease has been productive of a continuity of symptomatology. This the Veteran has not done. Indeed, none of the evidence or argument that he has submitted, or that has been presented on his behalf, has indicated that any of the presumptive provisions governing chronic diseases have been met in this case. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker, 708 F.3d at 1338-40. In reaching these conclusions, the Board remains sympathetic to the Veteran and does not question the sincerity of his belief that his carpal tunnel syndrome is etiologically related to his active service. Similarly, the Board does not doubt the Veteran's competence to provide opinions on medical issues that are observable to a layperson. See Kahana, 24 Vet. App. at 435. Nevertheless, the Board finds that the Veteran's competence does not extend to the etiology of his carpal tunnel syndrome as this matter falls outside the realm of the common medical knowledge. See Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007) (noting that lay persons are not competent to diagnose cancer). As such, whether that disorder is etiologically related to the Veteran's service-connected disabilities, or to any other aspect of his military service, is a question that requires medical expertise to answer. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ('Although the Veteran is competent to testify to the pain he has experienced since his [active service], he is not competent to testify to the fact that what he experienced in service and since service is the same condition with which he is currently diagnosed.'). Indeed, that is particularly true where, as here, there is evidence of intercurrent injuries, specifically those arising from the Veteran's August 2011 motor vehicle accident. For the foregoing reasons, the Board has relied upon the January 2012 VA examiner's expert medical opinion to resolve the Veteran's complex disability picture and to demonstrate the lack of any nexus between his carpal tunnel syndrome and active service. As such, the Board finds that service connection for such a disability is unwarranted and that the benefits sought on appeal must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012). ORDER Service connection for carpal tunnel syndrome of the right (dominant) upper extremity is denied. REMAND As noted in the Introduction, the Veteran's service representative has submitted a May 2013 statement that specifically alleges entitlement to an increased rating for a right hand disability. See May 20, 2013 Written Brief Presentation by The American Legion. The Board considers that May 2013 statement to be tantamount to a timely Notice of Disagreement (NOD) with the AOJ's July 2012 rating decision, which, in pertinent part, continued the Veteran's 10 percent rating for a right hand disability, identified as residuals of trauma to the third finger of the right dominant hand, with tender scar, to include residuals of a donor graft site, volar aspect of the right wrist. See 38 C.F.R. § 20.201 (2012) (identifying a NOD as a written expression of dissatisfaction with an adjudicative determination by the AOJ and a desire to contest the result); see also Gallegos v Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002) (noting that, while the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review, special wording is not required). However, in contrast with the separate issue of service connection for right-hand carpal tunnel syndrome adjudicated herein, the Veteran's increased rating claim has not yet been addressed in an SOC. Accordingly, such an SOC should be issued on remand. See Manlincon, 12 Vet. App. at 240-41. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran and his representative an SOC as to the issue of entitlement to an increased rating for a right hand disability (residuals of trauma to the third finger of the right dominant hand, with tender scar, to include residuals of a donor graft site, volar aspect of the right wrist). That SOC should apprise the Veteran of his right to submit a substantive appeal and to have his increased-rating claim reviewed by the Board. 2. Allow the Veteran and his representative requisite time for a response and then return the case to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs