Citation Nr: 1751977 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-41 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome. 2. Entitlement to service connection for bilateral upper extremity neurological symptoms other than those related to carpal tunnel syndrome, due to medically unexplained chronic multisymptom illness. REPRESENTATION Appellant represented by: Kunal Malhotra, Attorney at Law ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2004 to July 2005, to include service in Southwest Asia. Additionally, she had a period of active duty for training (ACDUTRA) from September 1989 to January 1990. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied the Veteran's claim to reopen a claim for service connection for bilateral upper extremity pain and denied service connection for carpal tunnel syndrome. In November 2009, the Veteran filed a notice of disagreement (NOD) and subsequently filed a substantive appeal (via a VA Form 9) in October 2010. In April 2013, the Board granted the petition to reopen the claim for service connection for bilateral upper extremity pain, and remanded the claim along with the claim for service connection for carpal tunnel syndrome. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's carpel tunnel syndrome is related to her active duty service. 2. The evidence is at least evenly balanced as to whether the Veteran's bilateral upper extremity neurological symptoms, other than those related to carpal tunnel syndrome, is due to a medically unexplained chronic multisymptom illness, which manifested to a compensable degree. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for carpal tunnel syndrome are met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for bilateral upper extremity pain neurological symptoms, other than those related to carpal tunnel syndrome, due to medically unexplained chronic multisymptom illness, are met. 38 U.S.C.A. §§ 1110, 1117, 1154, 5107 (West 2014); 38 C.F.R. § § 3.102, 3.303, 3.304, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Given the favorable actions taken below concerning each claim on appeal, the Board will not discuss further whether those duties have been accomplished. II. Legal Principles and Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Under 38 U.S.C.A. § 1117 (a) (1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective October 16, 2012, VA extended the presumptive period in 38 C.F.R. § 3.317 (a)(1)(i) through December 31, 2021 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia Theater of operations). See 81 Fed. Reg. 71382 (Oct. 17, 2016). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 C.F.R. § 3.317 (a)(ii). The Board notes that Congress revised 38 U.S.C.A. § 1117, effective March 1, 2002. In the revised statute, the term "chronic disability" was changed to "qualifying chronic disability," and the definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness; (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 38 C.F.R. § 3.317(a)(2). Signs or symptoms of undiagnosed illness and medically unexplained chronic multisymptom illness include neurological signs or symptoms. 38 C.F.R. § 3.317(b)(6). Because the Veteran served in Southwest Asia from March 2004 to March 2005, she is a Persian Gulf veteran within the meaning of the applicable statute and regulation. It must now be determined whether the Veteran's bilateral upper extremity neurological symptoms, other than those for which the Veteran will be compensated based on the Board's grant of service connection for carpal tunnel syndrome, are associated with an undiagnosed illness or medically unexplained chronic multisymptom illness that became manifest either during the Veteran's Persian Gulf War service or to a degree of 10 percent or more after separation from service. A. Carpal Tunnel Service treatment records (STRs) do not reflect treatment or a diagnosis of carpel tunnel syndrome during the Veteran's period of active duty. There is a March 2005 note where the Veteran complained of numbness in her fingers and her hands. Her DD 214 reflects that her military occupational specialty (MOS) was personnel system management. A July 2007 VA examination report notes the Veteran's complaint of numbness in all hand digits which was associated with Depo-Provera. In September 2008, the Veteran reported that she had carpal tunnel syndrome that was based on her MOS and performance of her required duties. A statement of medical examination and duty status dated September 2008 reflects that the medical professional reported that the Veteran developed carpal tunnel syndrome that resulted from her performance of required duties during Operation Iraqi Freedom II. She further noted that the onset of symptoms began in Iraq and continued to be a constant and consistent problem. In February 2011, the Veteran submitted numerous affidavits from friends and family that consistently noted the Veteran's complaints of numbness and pain in her hands and forearms. One affidavit was from her former military supervisor, where he reported that she would call him and say she could not come to work due to her symptoms. In December 2014, the Veteran underwent a VA examination where the examiner reported that there was no evidence of a median neuropathy at the wrist (carpal tunnel syndrome). The examiner referenced the Veteran's prior electromyography (EMG) testing in September 2005 and July 2009 which reflected a normal study. The examiner found that there was no confirmatory EMG evidence of bilateral carpal tunnel syndrome. The examiner noted that there was a history of bilateral carpal tunnel syndrome based on history and clinical examination findings at orthopedic examinations in 2011, but reported that this has since been resolved without residuals. The Veteran reported bilateral upper extremity complaints of numbness in her hands and arms that persisted and progressively worsened over time. Upon review of the evidence of record, the Board finds that service connection for carpal tunnel syndrome is warranted. Preliminarily, the Board notes that the Veteran had a diagnosis of carpal tunnel in September 2008 and July 2009. In the December 2014 VA examination, the examiner found that her carpel tunnel has since resolved. However, 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). The Veteran filed her claim for service connection for carpel tunnel in September 2011. The evidence as a whole reflects that it is at least as likely as not that the Veteran had carpal tunnel syndrome at some point during the pendency of the claim. 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). Therefore, the current disability requirement has been met. The Veteran contends that her carpel tunnel syndrome is a result of her in-service duties, to include her MOS as personnel system management, as reflected in her DD 214. The Veteran is competent to report symptoms experienced in service, see Washington v. Nicholson, 21 Vet. App. 191, 195 (2007), and her statements have been credible and consistent with the evidence of record as well as the circumstances of her service. See 38 U.S.C.A. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Given her lay statements and MOS, the Board finds that the Veteran has met the in-service injury requirement. There are conflicting medical opinions regarding a nexus between the Veteran's carpel tunnel and active duty service, a negative nexus opinion by a VA examiner in December 2014 and a positive nexus opinion by the medical professional who prepared the September 2008 statement of medical examination and duty status. The Board notes that the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to medical opinion evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (setting forth factors to be considered in assigning probative weight to an opinion). While the December 2014 VA examiner provided an opinion with a rationale based on the medical evidence and took into account the Veteran's statements, the September 2008 opinion is also entitled to significant probative weight. Although the September 2008 medical professional's rationale was not extensive, reading her opinion as a whole and in context of the evidence of record, to include the consistency of the Veteran's statements, entitles her positive nexus opinion some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The positive opinion took into account the Veteran's statements. Moreover, while the medical opinions relied, in part, on the service history provided by the veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). Here, the Board has found the Veteran's statements to be credible. For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's carpel tunnel syndrome is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for carpel tunnel syndrome is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Bilateral Upper Extremity Neurological Symptoms Service treatment records do not reflect a diagnosis, complaint of, or treatment for a bilateral upper extremity condition. In September 2005, the Veteran underwent EMG testing which revealed normal motor and sensory nerve conduction studies, except slowing of the nerve conduction velocity across the elbow suggesting an early cubital tunnel syndrome. In a September 2008 statement, the Veteran reported bilateral upper extremity neuralgia based on cervical and shoulder pain resulting from carrying gear and wearing Kevlar. The Veteran underwent a medical examination and duty status in September 2008 where the examiner noted that she experienced constant bilateral upper extremity neuralgia contributed to possible cervical and shoulder nerve impingement resulting from carrying gear weight approximately 115 pounds to 150 pounds for the duration of her deployment. The Veteran underwent EMG testing in July 2009 which revealed a normal study. There was no evidence of median neuropathy at the wrist, ulnar neuropathy at the elbow, or peripheral neuropathy of bilateral upper extremities. In February 2010, the Veteran underwent a Persian Gulf evaluation where she complained of joint pains involving the shoulders and elbows with paresthesia, numbness, and tingling in the forearms and hands. The examiner reported that chronic tenosynovitis of the shoulders were evident, but also noted that with a positive Epstein-Barr virus titer, the possibility of chronic fatigue syndrome was also evident. In a February 2011 affidavit, she stated that when she would travel, the estimated weight she had to carry was 140 pounds. She reported that when she had this strapped on her back, her entire arm would go numb while her hands and forearms would periodically hurt. She described the pain in her arms as generally dull and achy, accompanied by swelling, with occasional moments of stabbing pain. In February 2011, affidavits were also submitted from the Veteran's friends, family, and military supervisor who noted that they observed her in pain, they observed her drop objects with complaints of decreased hand coordination, difficulty completing tasks, and she missed work due to her symptoms. In a February 2012 medical board report, it was noted that the Veteran had intermittent numbness and paresthesia of both upper extremities that had its onset during her 2004-2005 deployment that is attributed to requirement of wearing individual body armor for extended periods of time. They noted that subsequent bilateral upper extremity pain was documented in July 2011. In December 2014, the Veteran underwent a Gulf War VA medical examination where she reported that she developed bilateral upper extremity numbness in her hands and rams during her period of active duty in 2004-2005. She reported that she had to carry packs of gear on her shoulders which "cut off her circulation" and would then have "total numbness" down her shoulders and arms. She also reported intermittent tingling in her arms and hands. She stated that she has had persistent symptoms since her return from deployment that have progressively worsened over time. She continued to have daily hand and arm numbness accompanied by pain and swelling. She also reported back/shoulder blade numbness/tingling symptoms that are constant and have increased. The examiner found no pathology or diagnosis of any peripheral nerve condition of the bilateral upper extremities. He reported that there was neither clinical nor EMG evidence of any peripheral nerve condition of the bilateral upper extremities. He found no objective findings to support a diagnosis of a condition related to the symptoms of bilateral upper extremity pain and/or neuralgia. The examiner opined that the Veteran's condition of no pathology or diagnosis of any peripheral nerve condition of the bilateral upper extremities is less likely than not (less than 50 percent probability) caused by or related to complaints of bilateral upper extremity pain and numbness that is associated with a known clinical diagnosis. The examiner explained that there was no condition found; neither clinical nor EMG evidence of peripheral neuropathy due to any etiology. He reported that there was no objective findings to support a diagnosis of a condition related to the symptoms of bilateral upper extremity pain and/or neuralgia and no objective evidence of any cervical and/or shoulder nerve impingement related to claimed bilateral upper extremity pain and/or neuralgia. He also opined that the Veteran's condition of no pathology or diagnosis of any peripheral nerve condition of the bilateral upper extremities is less likely than not (less than 50 percent probability) caused by or related to objective indications of a chronic disability resulting from an illness manifested by neurological signs or symptoms, fatigue, and/or pain of the joints/muscles, as established by history, physical examination, and laboratory tests, that have either existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six month period. He provided the same reasoning. Upon review of the evidence of record, the Board finds that service connection for a bilateral upper extremity condition is warranted. The Veteran has complained of pain, numbness/tingling, swelling, and paresthesia in her bilateral upper extremities. The September 2008 medical examiner noted that the Veteran had bilateral upper extremity neuralgia, while the December 2014 examiner found no pathology or diagnosis of her bilateral upper extremities. Her symptoms have been chronic and the evidence reflects consistent complaints by the Veteran. While there have been diagnoses of neuralgia, chronic tenosynovitis in the shoulders, and a possibility of chronic fatigue, these diagnoses have not been confirmed by testing. This is inconsistent with her laboratory testing which have been mostly normal. The difficulties over time in attributing the Veteran's symptoms to known clinical diagnoses, the Veteran's overlapping symptoms, and her pain due to the complex interplay of multiple factors, is indicative that her symptoms are due to a medically unexplained chronic multisymptom illness. See 38 C.F.R. § 3.317(a)(2)(ii) (defining medically unexplained chronic multisymptom illness as "a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormality"). Moreover, given the Veteran's description of the symptoms, the Board finds that they approximate at least the mild incomplete paralysis that warrants a compensable rating under the diagnostic codes applicable to neurologic disabilities. See 38 C.F.R. § 4.124a (2017). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran has bilateral upper extremity neurological symptoms, other than those related to carpal tunnel syndrome, due to medically unexplained chronic multisymptom illness, which manifested to a compensable degree. As the reasonable doubt created by this evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral upper extremity neurological symptoms, other than those related to carpal tunnel syndrome, due to medically unexplained chronic multisymptom illness, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for carpal tunnel is granted. Service connection for bilateral upper extremity neurological symptoms, other than those related to carpal tunnel syndrome, due to medically unexplained chronic multisymptom illness, is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs