Citation Nr: 1751335 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-24 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for bilateral carpal tunnel syndrome. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from August 1993 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). The Veteran will be notified if further action on her part is required. FINDING OF FACT The Veteran does not currently have carpal tunnel syndrome of either upper extremity. CONCLUSION OF LAW A bilateral carpal tunnel syndrome disability was not incurred in service. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As a preliminary matter, the Board finds that VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that she suffers from bilateral carpal tunnel syndrome, which initially manifested during her military service. For the reasons set forth below, the Board concludes that service connection is not warranted for this disability. Critically, the record does not support a finding that the Veteran has any current carpal tunnel syndrome disability. Service treatment records (STRs) dated in November 1995 noted that the Veteran complained of carpal tunnel syndrome. It was further indicated that the Veteran was "status-post rule-out bilateral wrist tendonitis." However, the remainder of the Veteran's STRs is absent any documentation of a continuing neurological disability of either upper extremity. The Veteran was afforded a VA examination in January 2011 at which time the examiner noted that the Veteran had been treated for complaints of pain in her wrists in 1995 and was given braces for both hands. The Veteran reported that, since 1995, she has had popping in her wrists elicited by repetitive movement. However, physical and neurological examination showed no objective sensory deficit, as well as no Tinel's sign or Phalen's sign to suggest bilateral carpal tunnel syndrome. As such, the examiner determined that there is no evidence of a current carpal tunnel syndrome disability in either upper extremity. Crucially, the competent and probative evidence of record contains no showing of a current diagnosis of bilateral carpal tunnel syndrome, or any neurological disability of the upper extremities. In the absence of disability, service connection is not warranted. In order for a claimant to be granted service connection for a claimed disability, there must be evidence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, evidence prior to the date of claim must be considered in determining whether the current disability requirement has been met. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, the above evidence reflects that the Veteran does not have a current bilateral carpal tunnel syndrome disability. To the extent the Veteran asserts that she currently has carpal tunnel syndrome, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The general principle that she experiences some radiating pain and popping of the wrists, which might be a symptom of a carpal tunnel syndrome, has some tendency to establish a diagnosis. See Davidson, 581 F.3d at 1316; Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran's assertions as to diagnosis and etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376; Barr, 21 Vet. App. at 308-9; Falzone, 8 Vet. App. at 403 (lay person competent to testify to pain and visible flatness of his feet); with Clemons, 23 Vet. App. at 6 ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert, 21 Vet. App. at 462 (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio, 606 F.3d at 1382 (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Board finds the clinical evidence more probative than the Veteran's statements as to the existence of a current bilateral carpal tunnel syndrome disability. The clinician is a medical professional and was able to review the overall record, including the Veteran's history and opinions. Moreover, the Veteran has not reported that she has been diagnosed as having carpal tunnel syndrome by a medical professional since service separation. In summary, the record clearly establishes that the Veteran was treated for a complaint of carpal tunnel syndrome during active duty. That alone, however, is not enough to establish service connection. Rather, as set forth above, the record must show that a chronic disability resulted from the in-service injury. For the foregoing reasons, the preponderance of the evidence in this case reflects that the Veteran does not suffer from any diagnosed bilateral carpal tunnel syndrome disability and has thus failed to establish the current disability element of her service connection claim. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral carpal tunnel syndrome is denied. REMAND For the reasons set forth below, the Board finds that the issue remaining on appeal - entitlement to service connection for a low back disability - must be remanded for additional evidentiary development. In this matter, the Veteran asserts entitlement to service connection for a low back disability, which she contends was incurred during military service. As indicated above, she served in the U.S. Army from August 1993 to August 1996 with additional service in the Army Reserves. Service connection may be granted for disability resulting from either disease or injury incurred during active duty for training (ACDUTRA). With respect to time periods of inactive duty for training (INACDUTRA), service connection may only be granted for injury (and not disease) so incurred. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). It is undisputed that the Veteran is currently diagnosed with a low back disability--specifically, herniated disc of the lumbar spine status-post lumbar hemilaminotomy, discectomy, and foraminotomy. See, e.g., the Report of Medical History dated December 2003. With respect to in-service injury, the Veteran has asserted that she injured her back while on a drill weekend in 2004. See, e.g., the VA Form 9 dated September 2012. To this end, the Board observes that a post-service treatment records dated in August 2002 indicated that the Veteran complained of low back pain that started two days ago - "recently finished two weeks of annual training for Reserves." A review of the Veteran's claims file demonstrates that her complete service personnel records from her service in the Reserves have not been associated with the claims file. In this regard, the dates of her ACDUTRA and INACDUTRA service remain unclear. As such, this matter must be remanded in order for the AOJ to attempt to obtain and associate with the Veteran's claims file a complete copy of her Army Reserves service personnel records and to verify all periods of the Veteran's of active duty, including her periods of ACDUTRA or INACDUTRA. Additionally, the Veteran has not been afforded a VA examination with respect to her low back disability claim. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (2016) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). As such, upon remand, the Veteran should be provided a VA examination to address the outstanding question of nexus with respect to the claim of entitlement to service connection for low back disability. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate records custodians in an attempt to obtain the Veteran's complete service personnel records from her service in the Army Reserves, and to confirm the exact dates and status of the Veteran's service with the Army Reserves to include specific periods of ACDUTRA, INACDUTRA, or other service. Any response should be associated with the Veteran's claims file. If said records cannot be obtained, provide the Veteran specific notice of the unavailability of these records pursuant to 38 C.F.R. § 3.159(e)(1). All such available records should be associated with the Veteran's claims file. 2. Schedule the Veteran for a VA examination by a medical professional with appropriate expertise to determine the nature and etiology of the diagnosed low back disability. All indicated tests and studies should be conducted. The contents of the entire, electronic claims file (in VBMS and Virtual VA) must be made available to the designated individual. With respect to the Veteran's diagnosed low back disability, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service. The examiner is also advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. Thereafter, readjudicate the claim on appeal. If a benefit sought remains denied, the Veteran and her representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). ______________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs