Citation Nr: 1338569 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 05-32 186A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for thoracic inlet syndrome (claimed as numbness and tingling of the bilateral upper extremities). REPRESENTATION Appellant represented by: Iowa Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran had active service from July 1984 to November 1984, and from January 1986 to May 1992. The Veteran's decorations, badges, and medals include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May 2010, the Veteran presented testimony at the RO before a Veterans Law Judge who is no longer employed at the Board. A transcript of the Board hearing is associated with the claims file. In July 2010, the Board granted service connection for cephalgia. This issue is no longer before the Board. In July 2010 and February 2012, the Board remanded the present issue on appeal to the RO for additional development. After completion of this development by the RO, the case was returned to the Board. In February 2013, the Board sent the Veteran a letter offering him another hearing with a different judge since the Veterans Law Judge who held the May 2010 hearing was no longer employed with the Board. The Veteran informed the Board that he wanted another hearing at the RO with a different Veterans Law Judge. Consequently, the case was remanded to the RO in March 2013 to honor the Veteran's request for another hearing. The hearing was held in June 2013 by the undersigned, and a transcript of the Board hearing is associated with the claims file. The case has been returned to the Board for the purpose of appellate disposition. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran's thoracic inlet syndrome to include numbness and tingling of the bilateral upper extremities is as likely as not related to his active military service. CONCLUSION OF LAW The criteria for service connection for thoracic inlet syndrome to include numbness and tingling of the bilateral upper extremities have been met. 38 U.S.C.A. § 1131, 1154(b); 38 C.F.R. § 3.102, 3.303; 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary for this case. II. Analysis The Veteran contends that he is entitled to service connection for thoracic inlet syndrome (claimed as numbness and tingling of the bilateral upper extremities), due to in-service physical stress to his bilateral upper extremities while carrying his service rucksack as an infantryman while in active service. Service connection may be granted for a 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. To establish service connection for a present disability, the Veteran must show: "(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 - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)) "When all of the evidence is assembled, the Secretary, or his designee, is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event." Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) "When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant." 38 C.F.R. § 3.102. Resolving all reasonable doubt in the Veteran's favor, the Board finds that it is as least as likely as not that the Veteran's thoracic inlet syndrome was incurred in military service. Thus, the claim for service connection must be granted. Each element of the claim is analyzed below. Turning to the first element of service connection, the Board finds that the Veteran has established the present disability of thoracic inlet syndrome to include numbness and tingling of the bilateral upper extremities. VA physician J. A. reviewed the Veteran's symptoms, including his assertion of back and neck pain with bilateral arm numbness and pain since carrying his pack in service, and conducted a physical examination in February 2009. J.A.'s impression was "chronic neck and arm pain, due to thoracic inlet syndrome." The Board notes that the record also includes other characterizations of the Veteran's bilateral upper extremity numbness and tingling, including notations that a proper diagnosis for those symptoms was carpal tunnel syndrome and/or C5 radiculopathy. The Board, however, finds that there is sufficient evidence to establish a current diagnosis of thoracic inlet syndrome with manifestations that include bilateral upper extremity numbness and tingling. Turning to the second element of service connection, the evidence presented supports a finding of in-service incurrence of an injury. After consideration of the places, types, and circumstances of the Veteran's service as reflected in his official service record, the Board finds that the Veteran was exposed to in-service physical stress to his bilateral upper extremities while carrying his service rucksack, and thereby incurred an in-service injury to his bilateral upper extremities characterized by numbness and tingling, later diagnosed as thoracic inlet syndrome. 38 U.S.C.A. § 1154(b). The Veteran's Form DD-214 reflects service as an infantryman in combat, including decorations such as the Combat Infantryman Badge, M16 Expert Badge, and Parachute Badge. The Veteran also consistently reported in his claim form, notice of disagreement, appeals documentation, and hearing testimony that he carried a rucksack constantly during service that weighed upwards of 90 pounds, and that he felt numbness and tingling in his bilateral upper extremities during that time, and that these symptoms continued even after he left military service. The circumstances of the Veteran's military service support the Veteran's lay statements. The Veteran is competent to report what duties he undertook in service and the symptoms he experienced, and the Board finds his statements credible given their consistency over time and alignment with the actual duties of an infantryman as reported by the Veteran and supported by the report on combat loads included in the evidence. The Board finds that the Veteran incurred an in-service injury to his bilateral upper extremities, and thus meets the second element of the test for service connection. Finally, the Veteran must show "a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)) As for evidence that supports the Veteran's nexus arguments, the record includes the Veteran's lay statements. The Board notes that the Veteran's lay opinion could be sufficient to serve as the required nexus for his claim. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) "Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Board finds the Veteran's lay evidence concerning his bilateral upper extremity numbness and tingling from carrying his rucksack in service, where the symptoms were later diagnosed as thoracic inlet syndrome by a medical professional (Dr. J.A. in February 2009), is competent and sufficient to establish the nexus for his claim. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to report the symptoms he had that began in service, he is credible given his consistent reports over time, and a medical professional defined the disease process that the Veteran described over the time frame as thoracic inlet syndrome. Thus, service connection is warranted since it 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. 38 C.F.R. § 3.303(d). In finding that the Veteran's contentions establish a positive nexus, the Board acknowledges the September 2008, August 2010, and February 2012 negative nexus opinions from VA examiners. Although the VA examiners rendered opinions based on a review of the claims file, including examinations of the Veteran, the rationales presented were flawed, incomplete, or not based on facts the examiners were directed to accept as true, and this limits their probative value. More specifically, the September 2008 rationale did not address the Veteran's assertions that his upper extremity numbness and tingling was not due to carpal tunnel syndrome. The September 2008 rationale focused on secondary service connection linking a neck condition to the upper extremity numbness and tingling, and did not address service connection on a direct basis for these symptoms standing alone. The August 2010 VA examination was similarly flawed, in that it again did not consider connection of what was later identified as thoracic outlet syndrome to the Veteran's military service on a direct basis. The February 2012 VA examiner also did not consider connection of the Veteran's thoracic outlet syndrome to his military service on a direct basis. In addition, the February 2012 VA examiner provided a negative nexus opinion that was inadequate as it did not accept as true the Veteran's competent reports that his numbness and tingling in his upper extremities began in service as the examiner was instructed to do in the Board's most recent remand. In this case, considering the flaws in the rationales of the VA examiners, the Board concludes that these negative opinions lack significant probative value. The Board is persuaded by the Veteran's credible lay statements which are sufficient to support a finding of service connection for his thoracic inlet syndrome as his lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, in considering the Veteran's competent and credible contentions, the presence of a current thoracic inlet syndrome disability, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has thoracic inlet syndrome to include numbness and tingling of the bilateral upper extremities that was incurred in service. As such, service connection for thoracic inlet syndrome to include numbness and tingling of the bilateral upper extremities is warranted. 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Service connection for thoracic inlet syndrome to include numbness and tingling of the bilateral upper extremities is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs