Citation Nr: 1334678 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-24 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a left hand condition, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from November 1982 to May 1983, and from January 1984 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran elected to cancel a travel Board hearing scheduled for May 2009. In June 2009, August 2011 and September 2012, the Board remanded the Veteran's service connection claim for further examination. There has been substantial compliance with the actions requested in those Remands relating to the service connection claim for a left hand condition and that claim is ready for appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). An October 2013 review of the Virtual VA (VVA) paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT A left hand condition, diagnosed as carpal tunnel syndrome, is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include exposure to environmental hazards in the Southwest Asia theatre of operations. CONCLUSION OF LAW The criteria for service connection for a left hand condition, diagnosed as carpal tunnel syndrome, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). The RO informed the Veteran of VA's duty to assist him in the development of evidence pertinent to his service connection claim in numerous letter dated between December 2005 and August 2011, wherein the Veteran was advised of the provisions relating to the VCAA. The Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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. The Veteran was provided with notice of the type of evidence necessary to establish a disability rating or effective date as was discussed in the Dingess case in June 2007 and May 2008. The RO re-adjudicated the claim in a Statement of the Case (SOC) issued in June 2007 and in Supplemental SOCs issued in April and July 2008, February 2009, February 2011, June 2012, and April 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the service connection claim on appeal has been obtained. The Veteran's service treatment records (STRs) and post-service records including available private medical reports, and VA records dated to April 2013, have been obtained and associated with the file. VA's duty to assist also includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). Pursuant to three Board remands, numerous VA examinations and opinions have been sought in this case. Since the most recent examination/opinion of October 2012, the Veteran and his representative have not maintained that this evidence provided for the record is in any way inadequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). Background In October 2005, the Veteran filed a service connection claim for joint pain of multiple joints, including the hands, maintaining that this condition was a manifestation of Gulf War syndrome. The STRs include a December 1989 record documenting pain and swelling of the left hand causing by cutting the hand on glass, which was diagnosed as a slightly infected wound. An August 1993 airborne examination was negative for a diagnosis or indications of a left hand disability. The April 1995 separation examination was also negative for a diagnosis, mention, or indications of a left hand condition or symptoms related thereto. A VA examination of the joints was conducted in March 2003. At that time the Veteran complained of intermittent pain in the hands. X-ray films of the hands revealed a radiomettalic foreign body without associated osseous pathology. The films were negative for fracture, dislocation, destructive bone, or joint disease, involving either hand. Another VA examination was conducted in February 2005, at which time the Veteran had vague complaints of joint pain, stating that there had no significant change since the last examination of 2003. Full range of motion in every joint including the hands was shown, without crepitus or pain. The examiner concluded that there was no evidence of any change or arthritis on examination, and concluded that the Veteran did not have psoriatic arthritis. In January 2006, the Veteran underwent a VA examination of the bones. It was noted that X-ray films revealed a small metallic body in the second digit of the left hand which was superficial, and caused no limitation. Examination of the hands revealed no deformity or swelling. X-ray films of the hands taken on examination of March 2006 revealed no degenerative changes or abnormalities, and a foreign body in the second digit of the right hand. A VA general medical examination was conducted in January 2008. The Veteran complained of a bilateral hand condition manifested by cramping and early morning stiffness, reported that the onset of this problem was 1995. Examination revealed normal range of motion of all joints in the hands, and indicated that the Veteran had pain on making a tight fist. EMG/nerve conduction studies revealed bilateral carpal tunnel syndrome. X-ray films revealed a small foreign body in the soft tissues of the right hand and no significant degenerative changes of the hands. Pursuant to a June 2009 Board Remand, a VA examination of the hands was conducted in August 2009. The Veteran gave a history of shrapnel in the right index finger caused by enemy artillery in 1991. He complained of stiffness in both hands getting worse. X-ray films were negative aside from findings of a 3 mm metallic foreign body in the soft tissue area of the right second finger. The Veteran was afforded another VA examination in July 2011. Additionally, an August 2011 addendum report to the July 2011 VA examination was obtained. The examiner reported that there was no abnormality of the left hand per examination and X-ray films. Additionally, per examination, there was no objective evidence of pain on left hand, and range of motion (ROM) of all fingers of the left hand was normal. The examiner concluded that the Veteran did not complain of symptoms of the left hand, nor was there any objective evidence of pain of the left hand. It was explained that additionally as the ROM of the left hand was normal; it was less likely as not secondary to an undiagnosed illness. In a Remand issued in August 2011, the Board found the July 2011 VA examiner's opinion is inadequate because the examiner failed to discuss the previous diagnosis of carpel tunnel and whether it has resolved or can be resolved. Accordingly, the Board found it necessary to remand the service connection claim for a left hand condition for an additional VA examination and etiological opinion. In September 2012, the Board remanded the case again, finding the August 2011 addendum VA opinion inadequate because the previous diagnosis of carpel tunnel was not discussed. A VA examination of the hands was conducted in October 2012. A history of an injury to the left hand in 1989 when he fell on glass, now resolved, was diagnosed. The examiner explained that a January 1990 examination had revealed normal findings of the left hand. The examiner also indicated that the Veteran had carpal tunnel syndrome, which was a work related condition, per the Veteran's own report. Analysis The Veteran seeks entitlement to service connection for a left hand condition. Specifically, the Veteran asserts that his left hand disorder is related to his service in the Persian Gulf War and is due to an undiagnosed illness. Generally, in order to prevail on the issue of direct service connection, there must be (1) evidence of a current disability; (2) medical evidence, or in certain circumstances, lay 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board recognizes that the Veteran has asserted that a left hand condition is a manifestation of Gulf War Syndrome. In this case, the Veteran's records show that he served in Southwest Asia. Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1) (VA has issued an interim final rule extending this date to December 31, 2016). A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome (IBS)) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain;(6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Initially, the Board points out that the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also, Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim.). Since the Veteran filed his claim in October 2005, his claimed left hand symptoms have primarily consisted of pain and stiffness. VA examinations have repeatedly shown full range of motion of the joints and no evidence of arthritis. However, in 2008 bilateral carpal tunnel syndrome of the hands was diagnosed based on EMG/nerve conduction studies. To date this is the sole clinically diagnosed left hand disorder of record. Given that the Veteran's claimed left hand symptoms have been attributed to a known diagnosis of carpal tunnel syndrome, service connection for this disability under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not permitted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, the Board must consider if service connection may be granted on a direct basis. Following a careful review of the evidence, the Board finds that service connection is not warranted for the Veteran's claimed left hand disorder, diagnosed as carpal tunnel syndrome. The initial diagnosis of this condition was made in 2008, approximately 13 years after the Veteran's discharge from service. As such, there is no medical evidence of pertinent symptomatology since service to support a claim for service connection. Further, the VA examination reports and treatment records are silent with respect to any etiological link between the Veteran's left hand disorder and his service. Significantly, when the matter was specifically addressed by a VA examiner in 2012, the examiner stated that the Veteran had carpal tunnel syndrome, which was a work related condition, per the Veteran's own report. The evidence does not suggest, nor does the Veteran maintain that carpal tunnel syndrome of the left hand resulted from a 1989 left hand injury inservice, shown to have healed with no residuals by service examinations reports of 1993 and 1995. The Board observes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran is competent to report an in-service incident such as left hand injury in 1989. He is also competent to report pertinent symptomatology since service. However, the Veteran has not provided lay information to the effect that: (1) carpal tunnel syndrome or its symptoms began in service, (2) symptoms have been chronically present since service, or (3) that carpal tunnel syndrome of the left hand diagnosed more than a decade after the discharge is somehow etiologically related to service. Accordingly, lay assertions have essentially not be utilized in this case to support the claim. In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's service connection claim for a left hand condition. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for a left hand condition, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs