Citation Nr: 1333626 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-36 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for carpal tunnel syndrome of the right wrist, to include as secondary to service-connected cervical spondylosis or the service-connected right shoulder strain, status-post labral tear. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from May 1957 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2013, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's electronic claims folder. The Veteran's claim was originally adjudicated as entitlement to service connection for arthritis of the hands. In a June 2012 statement, however, the Veteran clarified that he was seeking service connection for right carpel tunnel syndrome. In this letter the Veteran also withdrew his claims of entitlement to service connection for a left foot disability, a bilateral hip disability, a left hand disability, and a left shoulder disability. Therefore, the Veteran's claim has been recharacterized as noted on the title page, and the remaining issues are no longer on appeal. In April 2013, the Board remanded the Veteran's claim for additional evidentiary development. A supplemental statement of the case was issued in May 2013 by the VA Appeals Management Center (AMC) which continued the denial of the claim. The case is once again before the Board. FINDINGS OF FACT 1. The Veteran's carpal tunnel syndrome was not caused or aggravated by the service-connected cervical spondylosis or the service-connected right shoulder strain. 2. The Veteran's carpal tunnel syndrome was not manifest during service or within one year of separation. Carpal tunnel syndrome is unrelated to service. CONCLUSIONS OF LAW 1. Carpal tunnel syndrome is not proximately due to (causation or aggravation) a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.310 (2013). 2. 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, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet.App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required 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 the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA issued a VCAA notice letter to the Veteran in February 2009. This letter informed the Veteran of what evidence was required to substantiate his claim on a direct service connection basis and of his and VA's respective duties for obtaining evidence. The February 2009 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. The Board observes that the Veteran was informed of what the evidence must show to establish service connection under a secondary service connection theory of entitlement in an August 2012 letter. While the Board notes that this letter was provided in connection with claims which are not on appeal, the Board finds no prejudice to the Veteran in this regard as a reasonable person in the Veteran's position would have understood what the evidence must show. In any event, the Veteran demonstrated actual knowledge of what is required to establish service connection on a secondary basis during the January 2013 hearing when he testified that his carpal tunnel syndrome was due to his service-connected cervical spondylosis or right shoulder disability. See the hearing transcript, page 5; see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009); Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (holding that notice error was not prejudicial because the appellant demonstrated actual knowledge of the information and evidence necessary to substantiate his claim by way of the arguments made to the RO). In short, the record indicates that the Veteran received appropriate notice pursuant to the VCAA. The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In this capacity, in April 2013, the Board remanded the case to the AMC in order to obtain a medical opinion that addresses whether the Veteran's carpal tunnel syndrome is secondary or aggravated by his service-connected cervical spine or right shoulder disabilities. The requested opinion was obtained in April 2013. Thus, the Board's remand instructions have been fully complied with. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Further, the record contains the Veteran's service treatment records, VA treatment records, private medical records, VA examination reports, and the January 2013 hearing transcript. The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. As the Board will discuss in its analysis, the Veteran was provided with a VA examination in April 2013. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Supporting rationale was also provided for the opinion proffered. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008). The Board therefore concludes that the examination is adequate for adjudication purposes. See 38 C.F.R. § 4.2 (2013). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He exercised the option of a personal hearing and was afforded one in January 2013 as detailed in the Introduction. During the hearing, the undersigned Veterans Law Judge clarified the issue on appeal, explained the concept of service connection on a direct and secondary basis, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. II. Law and Regulations In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic disabilities, to include organic diseases of the nervous system, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet.App. at 448. Under section 3.310(b) of VA regulations, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). III. Analysis In this case, the Veteran does not consistently assert that his carpal tunnel syndrome manifested in service. See Hearing transcript, pg. 3. More often, he asserts that that his carpal tunnel syndrome is secondary to his service-connected cervical spondylosis or, alternatively, his right shoulder strain. Id. However, because the RO considered entitlement to service connection on a direct basis, the Board will do so as well to prevent any prejudice to the Veteran. The Board notes that the Veteran has been awarded the Vietnam Service Medal and the Vietnam Campaign Medal. However, as noted, he is not alleging that his disability is a result of combat, but rather that his disability is due to his service-connected cervical spine or right shoulder disabilities with no assertion of incurrence or aggravation during combat. As a result, the combat provision is not for application in this case. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). The Veteran's service treatment records document that he complained of "slight swelling about" 2 inches above his right wrist after being stepped on during a volleyball game in January 1973. He was diagnosed with a muscle strain. Prior to his separation from service, in January 1984, the Veteran completed a self-report of medical history wherein he noted having painful or swollen joints. An examiner reviewing the Veteran's complaints stated that the Veteran had experienced problems in his ankles and wrists at one time, but has not experienced any additional problems in approximately 15 years. A physical examination revealed that the Veteran's upper extremities were clinically normal. He was deemed qualified for separation. Accordingly, while the Veteran's separation examination revealed that his right wrist was clinically normal, based on his in-service complaints of wrist pain, the Board finds that an in-service injury or disease has been demonstrated. The earliest evidence of any right wrist symptomatology following the Veteran's separation from service comes from a June 2008 private treatment record. In this report, Dr. S.H., documented that the Veteran began experiencing right hand pain approximately three weeks ago. A physical examination revealed tenderness and synovitis of the wrist. The Veteran was not, however, diagnosed with carpal tunnel syndrome of the right wrist until June 2012. The Board also notes that the Veteran has provided conflicting statements of when his disability first began. For example, during the January 2013 hearing, the Veteran testified that his disability began during service, prior to a right shoulder injury. See the hearing transcript, pages 5-6. In contrast, the Veteran reported to his private physician that he began experiencing right wrist pain in 2008 and his separation examination revealed that he had not experienced wrist pain in the past 15 years. The Board notes that the Veteran is competent to report ongoing right wrist pain because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet.App. 465, 470 (1994). However, in light of the conflicting evidence contained in the claims file, the Board finds that his statements made to his physician to be more probative than those made in connection with his claim for monetary benefits from the government. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991) (VA cannot ignore a Veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The Board also observes that carpal tunnel syndrome was not "noted" during service or within one year of separation. In addition, there were no characteristic manifestations sufficient to identify the disease entity during service or within one year of separation. 38 C.F.R. § 3.303(b). As such, service connection may not be granted on a presumptive basis. Nor may service connection be established based on continuity of symptomatology. With respect to the Veteran's secondary service connection theory of entitlement, the record reflects that he was granted service connection for cervical spondylosis and a right shoulder strain, status-post labral tear, in a January 2010 rating decision. In short, the record contains evidence of a current disability, an in-service injury and a service-connected disability. What remains to be established is whether the Veteran's carpal tunnel syndrome is related to his in-service injury or was caused or aggravated by his service-connected cervical spine and/or right shoulder disability. In support of his claim, the Veteran submitted a June 2012 statement from his private physician who indicated that the Veteran's carpal tunnel syndrome was caused by an in-service injury which occurred in 1978. In the April 2013 remand, the Board noted that the opinion provided by the Veteran's physician in June 2012 was inadequate because the physician did not provide any rationale for his conclusion. See Hernandez-Toyens v. West, 11 Vet.App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence); see also Bloom v. West, 12 Vet.App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects 'clinical data or other rationale to support his opinion.') As a result, the Veteran's claim was remanded in order to obtain an additional medical opinion. The Veteran was subsequently afforded a VA examination in April 2013. After reviewing the claims file and conducting a physical examination, the VA examiner stated that the Veteran's carpal tunnel syndrome is less likely than not incurred in or aggravated by service or proximately due to (causation or aggravation) a service-connected disability. Specifically, the examiner explained that since carpal tunnel syndrome is a compression of the median nerve, the Veteran's disability could not be related to his cervical spondylosis or right shoulder disabilities because those disabilities "are not the etiology" of carpal tunnel syndrome. At this juncture, it is important to note that the Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet.App. 30 (1993), and Colvin v. Derwinski, 1 Vet.App. 171 (1991). In this case, the Board places greater weight of probative value on the VA examiner's opinion than the opinion of the Veteran's private physician who provided no rational for his conclusion. See Bloom, supra. The Board has also considered the Veteran's assertion that his carpal tunnel syndrome is related to his active duty service or a service-connected disability. However, his opinion is accorded no greater evidentiary value than that of the private medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His opinion is lacking in specifics and detail and is therefore accorded little probative value. Based on the above, the Board finds the opinion of the April 2013 VA examiner to be more probative than the conclusory June 2012 private medical opinion and the Veteran's assertions. The Board finds that the most probative evidence establishes that there is no relationship (causation or aggravation) between the Veteran's carpal tunnel syndrome and his service-connected neck or shoulder disabilities and that there is no relationship between the Veteran's carpal tunnel syndrome and his active duty service. The Board also observes that the Veteran submitted an April 2013 statement from Dr. G.D. in support of his claim. In this statement, the Veteran's physician noted that he had been experiencing paresthesias in the right hand. It was noted that EMG studies had confirmed cervical radiculopathy and carpal tunnel syndrome. Dr. G.D. concluded that the Veteran's "symptoms are likely related to the trauma he sustained to the neck in the course of his" active duty. Upon review, Dr. G.D.'s April 2013 statement did not provide an opinion as to the etiology of the Veteran's carpal tunnel syndrome, but instead attributed his symptoms to in-service neck injury and cervical radiculopathy. This opinion therefore does not support the Veteran's claim as service connection was established for cervical spondylosis in a January 2010 rating decision and the Board granted service connection for cervical radiculopathy in April 2013. In sum, the most probative evidence establishes that there was a remote post service onset of carpal tunnel syndrome and that the syndrome is unrelated to a service connected disease or injury. To the extent that he reports an in-service onset and continuation, such pleading is inconsistent with the normal neurologic examination at separation and is not credible. In regard to the secondary service connection theory, the more probative evidence establishes that there is no physiologic relationship and such opinion is sufficient to address causation and aggravation. Therefore, the preponderance of the evidence is against the claim for service connection. Because there is no approximate balance of positive and negative evidence, the rule affording the Veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet.App. 143 (2001); see also 38 C.F.R. § 3.102 (2013). ORDER Service connection for carpal tunnel syndrome is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs