Citation Nr: 1716489 Decision Date: 05/16/17 Archive Date: 05/22/17 DOCKET NO. 12-25 524 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right elbow condition. 2. Entitlement to service connection for right carpal tunnel syndrome (also claimed as right ulnar nerve). 3. Entitlement to service connection for left carpal tunnel syndrome. 4. Entitlement to service connection for a neurological disability of the feet, to include bilateral foot tarsal tunnel syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from March 1986 to March 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the RO in St. Petersburg, Florida, which, in pertinent part, denied entitlement to service connection for bilateral carpal tunnel syndrome, bilateral tarsal tunnel syndrome, and a right elbow condition. The Veteran testified before the undersigned at an October 2015 hearing at the RO. The RO denied service connection for right and left tarsal tunnel syndrome; however, the record reflects that the Veteran has been diagnosed with several additional disorders and he testified in October 2015 that he was seeking service connection for a neurological disability, which he also called peripheral neuropathy. See Board Hearing (Hrg.) Transcript (Tr.) at 26. Accordingly, this issue on appeal has been characterized as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDINGS OF FACT 1. The Veteran has a current disability of right elbow cubital tunnel syndrome that began during service. 2. The Veteran has a current disability of right carpal tunnel syndrome that began during service. 3. Entitlement to service connection for left carpal tunnel syndrome was granted by a July 2010 rating decision. 4. The Veteran does not have a current disability of bilateral tarsal tunnel syndrome. 5. The Veteran has a right L5 radiculopathy that began during service. CONCLUSIONS OF LAW 1. The criteria for service connection for right elbow cubital tunnel syndrome have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016). 2. The criteria for service connection for right carpal tunnel syndrome have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The appeal as to entitlement to service connection for left carpal tunnel syndrome is moot. 38 U.S.C.A. §§ 1101, 1110, 1131, 7104 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 20.101 (2016). 4. The criteria for service connection for bilateral tarsal tunnel syndrome have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for service connection for right L5 radiculopathy have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for service connection. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326. As to the issues of entitlement to service connection for a right elbow condition, right carpal tunnel syndrome, those claims have been granted, as discussed below. Similarly, the Board must dismiss the issue of entitlement to service connection for left carpal tunnel syndrome as a matter of law. As such, the Board finds that any error related to the duties to notify or assist on them is moot. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. To the extent that the Board denies entitlement to service connection for bilateral tarsal tunnel syndrome, the Board finds that there were no errors of the duties to notify or assist. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The Veteran filed his claim through the Benefits Delivery at Discharge program, and signed a Notice to Claimants of Information and Evidence Necessary to Substantiate a Claim for VA Disability Compensation on December 21, 2009, the content of which fully satisfied the duty to notify provisions prior to initial adjudication of the Veteran's bilateral tarsal tunnel syndrome claim in February 2011. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). As will be discussed below, the medical evidence of record is both extensive and more than adequate to adjudicate the bilateral tarsal tunnel syndrome issue. Neither the Veteran nor his representative has identified any error of notice or assistance even though the record was held open after the 2015 Board hearing for the purpose of receiving evidence and argument. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (an appellant may waive notice and assistance errors by failing to argue them to VA during the course of an appeal). II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of 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. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A. Right Elbow Condition Prior to discharge, the Veteran was diagnosed with right ulnar nerve palsy. See January 2010 Navy Neurology Consultation. The disorder was later described as an ulnar neuropathy and listed as cubital tunnel syndrome in the Veteran's chronic problem list. See February 23, 2010, Navy Neurology Consultation; see also March 15, 2010, Navy Neurology Consultation Follow-up. The RO denied the claim on the basis that a January 2011 VA examination report contained no clinical evidence of the syndrome on examination. There was no attempt to address when the disorder resolved and, if it did, whether it resolved prior to the Veteran's March 31, 2010, retirement from service. Regardless, the Veteran's 2014 post-retirement medical records from the Naval Hospital in Jacksonville, Florida, show an ongoing diagnosis of right elbow cubital tunnel syndrome. As "ulnar nerve palsy," "ulnar neuropathy," and "cubital tunnel syndrome" terms are used synonymously, the Board will use the most recently applied term to describe the disability. Even if the cubital tunnel syndrome had resolved, it is an organic disease of the nervous system noted as such in service. Any subsequent manifestation is to be deemed service-connected. 38 C.F.R. § 3.303(b). The Board concludes that service connection is warranted. 38 C.F.R. § 3.304. B. Right Carpal Tunnel Syndrome Prior to retirement from active service, the Veteran was evaluated for a follow-up on previously diagnosed carpal tunnel syndrome in January 2010. May 29, 2010, Medical Treatment Record at 111. The doctor indicated that the Veteran had failed conservative treatment for left carpal tunnel syndrome and was referred for surgical evaluation. Id. The Veteran was noted to have a focal neuropathy of the ulnar nerve at the right elbow. Id. at 112. Follow-up appointment shows February 2010 notations of right and left carpal tunnel syndrome and right cubital tunnel syndrome. Id. at 79. The provider noted documented median neuropathy at the right wrist and symptoms consistent with an ulnar neuropathy at the right elbow. Id. at 80. The Veteran testified before the undersigned that his symptoms of pain, stiffness, limited movement, and weakness have persisted since his retirement from service. October 2015 Hrg. Tr. at 8-11. The Veteran submitted a November 2015 letter from a neurologist, B.H., which indicates that the Veteran had electrical evidence for right carpal tunnel syndrome, with a recommendation of hand surgery. The Board finds that the Veteran has a current disability of right carpal tunnel syndrome that originally manifested during service, and has been continuously present since service. The Board concludes that service connection is warranted. 38 C.F.R. § 3.304. C. Left Carpal Tunnel Syndrome The Veteran's December 2009 pre-discharge disability claim included left wrist carpal tunnel syndrome. The RO granted service connection for that disability in a July 2010 rating decision, assigning an initial non-compensable disability rating effective the day following the Veteran's separation from service. The July 2010 rating decision also deferred the issue of entitlement to service connection for right carpal tunnel syndrome for an examination. Following a January 2011 VA examination, the RO issued a rating decision as to both right and left carpal tunnel syndrome, denying entitlement to service connection for both on the basis that there was no objective pathology to render a diagnosis of a disability. The Veteran initiated the instant appeal as to both right and left carpal tunnel syndrome. Review of the Veteran's most recent rating codesheet from July 2015 reflects that he continues to be in receipt of service connection for left wrist carpal tunnel syndrome. Because the Veteran continues to be in receipt of service connection for left wrist carpal tunnel syndrome, the Board concludes that the appeal for that same benefit was the result of administrative error. The instant appeal appears to have arisen because the right carpal tunnel syndrome was listed twice on a codesheet accompanying a subsequent December 2010 rating decision again deferring right carpal tunnel syndrome. RO personnel appear to have thought that the duplicate listing meant that the left carpal tunnel syndrome issue remained pending as well, despite the clear and unequivocal grant of service connection in July 2010. The Board notes that severance of service connection for left carpal tunnel syndrome was not adjudicated and the disability was not removed from the list of disabilities for which the Veteran is in receipt of service connection. As the Board cannot award a benefit previously granted, the appeal is moot and must be dismissed. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101(a). D. Neurological Disability of the Feet For the reasons that follow, the Board finds the Veteran does not have a current disability of bilateral tarsal tunnel syndrome, is already in receipt of service connection for radiculopathy of the left lower extremity, and has right L5 radiculopathy which began during service. Of note, the Veteran is already in receipt of service connection for left ankle subchondral cyst, right ankle status post fracture, and bilateral pes planus. See July 2015 Rating Codesheet. This decision does not concern those disabilities. The Veteran's appeal concerns neurological symptoms affecting his feet. The Veteran testified before the undersigned that his feet would burn when running during service and would go to sleep. October 2015 Board Hrg. Tr. at 26. He was sent to a podiatrist in 2009 and received orthotics. Id. He later saw another doctor and complained of excessively cold feet. Id. The doctor told him he may have tarsal tunnel syndrome. Id. The Veteran reported going to a neurologist and being told he did not have tarsal tunnel syndrome, but instead said he may have peripheral neuropathy. Id. The medical evidence of record demonstrates that the Veteran does not have tarsal tunnel syndrome of either foot. The Veteran's service treatment records demonstrate that, while tarsal tunnel syndrome was suggested, he was ultimately found not to have that disability. A January 2010 evaluation indicates that the Veteran had possible tarsal tunnel syndrome. March 26, 2010, STR at 25. The Veteran was referred to neurology. Id. A February 2010 service treatment record indicates the Veteran was seen for intermittent lower extremity numbness. May 20, 2010, Medical Treatment Record - Non-Government Facility at 79. He described a Novocain-like numbness involving the bottoms of both feet extending to roughly half way up both calves. Id. Examiner indicated the foot numbness could be related to local peripheral nerve impingement. Id. at 80. EMG/NCS were ordered. Id. A March 2010 service treatment record indicates that the Veteran had a normal electrodiagnostic study and there was no evidence of a generalized large fiber polyneuropathy. Id. at 88. A follow-up neurology visit, dated March 15, 2010, indicates that the positional foot numbness and activity induced paresthesias were reported to be "improving/resolving" in terms of frequency. The doctor indicated that the symptoms were not likely neurologic in origin. If present and neurologic, the doctor indicated that they would likely represent a focal positionally induced compression related to the way he sits when he is on the floor playing with his children. Id. at 92. An April 2010 follow-up indicated that EMG/NCS were normal and that the Veteran said his ankles were feeling better since he avoided placing them in certain positions. The Veteran also complained of excessively cold feet. The Board finds that the preponderance of the evidence demonstrates that the Veteran does not have a current disability of bilateral tarsal tunnel syndrome and has not had such a disability at any time during the pendency of this appeal. The notation of tarsal tunnel syndrome is too speculative to award service connection. The doctor indicated the Veteran had "possible" tarsal tunnel syndrome. With regard to such conclusions, the Board notes that service connection may not be based on speculation or remote possibility. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); see also Davis v. West, 13 Vet. App. 178, 185 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). This is particularly important as additional testing returned "normal" results. The Veteran's claims file is replete with additional evaluations of the feet which did not result in diagnoses of tarsal tunnel syndrome once the March 2010 test results were known. The Board also notes that the Veteran, as a layperson, is not competent to diagnose a neurological disorder on his own. To the extent that he is competent, he has reported the contents of the medical evidence which is cumulative and not entitled to probative value. Given that the tarsal tunnel syndrome was ruled out by subsequent testing indicates that the Veteran simply never had that disability. Service connection for tarsal tunnel syndrome is not warranted. 38 C.F.R. § 3.304. The Board finds that the Veteran does have a neurological disability affecting the feet. The Veteran was evaluated in March 2014 for lumbar stenosis. February 4, 2015, Medical Treatment Record - Non - Government Facility at 7. The Veteran was diagnosed with left greater than right leg pain in a pattern of neurogenic claudication. Id. The pre-operative notes indicate that the symptoms had been presented and progressing for 10 years. Id. The Veteran underwent a left L4-5 laminectomy. Id. at 1. The Veteran was evaluated at a VA examination and found to have left L5 radiculopathy. April 2015 VA examination report at 11. The examiner noted diminished reflexes in the right lower extremity but did not diagnose a radiculopathy. The examiner also did not address the 2014 notation of neurogenic claudication of the right leg. As a result of the April 2015 VA examination report, the RO awarded service connection for left L5 lumbar radiculopathy only. The RO did not consider right lumbar radiculopathy. As the Veteran was diagnosed with neurogenic claudication, which accounted for his neurological symptoms in both feet reaching back well into his active duty service, the Board finds that the evidence is at least in equipoise that the Veteran has right and left L5 radiculopathies that began during service. The Board concludes that service connection is warranted for both. 38 C.F.R. § 3.304. As the RO has already awarded service connection for the left radiculopathy, the Board grants entitlement to service connection for right L5 radiculopathy. In sum, the Board finds that the evidence is at least in equipoise in favor of the Veteran's appeals for right elbow cubital tunnel syndrome, right carpal tunnel syndrome, and right L5 radiculopathy. Service connection is awarded for each disability. Because service connection is already in effect for left carpal tunnel syndrome, there is no question of fact or law to resolve in the Veteran's favor and the Board must dismiss that issue. Finally, the Board finds that the preponderance of the evidence is against entitlement to service connection for bilateral tarsal tunnel syndrome. Consequently, the benefit-of-the-doubt rule does not apply, and the tarsal tunnel syndrome claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for right elbow cubital tunnel syndrome is granted. Entitlement to service connection for right carpal tunnel syndrome is granted. Entitlement to service connection for left carpal tunnel syndrome is dismissed. Entitlement to service connection for bilateral foot tarsal tunnel syndrome is denied. Entitlement to service connection for right L5 radiculopathy is granted. ______________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs