Citation Nr: 1753554 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-06 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for carpal tunnel syndrome, left wrist, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim for service connection for carpal tunnel syndrome, right wrist, and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and spouse. ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1973 to January 1997. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. In a November 2007 rating decision the RO denied service connection for bilateral carpal tunnel syndrome. The Veteran submitted a timely NOD in December 2007 and the RO issued a statement of the case (SOC) in November 2008, but the Veteran did not perfect his appeal within the relevant appeal period following the issuance of the SOC. 2. Some of the evidence submitted since the November 2007 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claims for service connection for carpal tunnel. 3. The Veteran's current carpal tunnel syndrome, left wrist, was incurred during service. 4. The Veteran's current carpal tunnel syndrome, right wrist, was incurred during service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted, and thus, the criteria for reopening the claim for service connection for carpal tunnel, left wrist, have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. New and material evidence has been submitted, and thus, the criteria for reopening the claim for service connection for carpal tunnel, right wrist, have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 3. The criteria for service connection for carpal tunnel, left wrist, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137 (2012 ); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for carpal tunnel, right wrist, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The Veteran's claims for service connection for carpal tunnel syndrome of the left and right wrists were initially denied by way of a November 2007 rating decision. In response to the November 2007 rating decision, the Veteran submitted a timely Notice of Disagreement (NOD) in December 2007. Subsequently, the RO issued a Statement of the Case (SOC) in November 2008, again denying the Veteran's claims. The claims were denied because there was no evidence submitted that showed that the disabilities were related to an event, illness, or injury that occurred in service. The Veteran was notified of the decision in a November 2008 letter, but did not submit a VA Form 9 or other correspondence containing the necessary information for an appeal within the expiration of the year following the November 2007 rating decision or within 60 days of the November 2008 SOC. Therefore, that decision is final. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the November 2007 denial, new evidence in the form of treatment records, Social Security Administration (SSA) records, letters, and lay statements has been associated with the claims file. Some of that evidence is also material. Evidence added to the record since November 2007 includes an October 2017 private medical opinion that that suggests that there is a direct correlation between the Veteran's administrative work during his active-duty service and his subsequent development of carpal tunnel syndrome. As the foregoing evidence suggests a nexus between the Veteran's diagnosed carpal tunnel syndrome, left and right wrists, and his MOS during service, it relates to an unestablished fact that is necessary to substantiate the Veteran's claim. Thus, new and material evidence has been received, and the claims for service connection for carpal tunnel, left and right wrists, are reopened. II. Service Connection The Veteran seeks service connection for carpal tunnel syndrome, left and right wrists. Specifically, he contends that he developed carpal tunnel syndrome as a result of constant typing and manual labor required by his military occupational specialty MOS as Electrical Repairman and System Coordinator during service. Following review of the record, the Board finds that service connection is warranted. Generally, 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. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 C.F.R. §§ 3.303 (b), 3.309(a) (2017); see also 38 U.S.C. §§ 1101 (3) (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service and there is evidence that the claimant's symptoms have continued after discharge. 38 C.F.R. § 3.303 (b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112 (a)(1), 1137 (2012); 38 C.F.R. § 3.307 (a)(3) (2017). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b) (2012); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). Here, a current diagnosis of bilateral carpal tunnel syndrome is confirmed by the evidence of record. Specifically, a December 2011 pre-surgery exam revealed carpal tunnel syndrome, right hand, and a January 2012 post-surgery exam revealed carpal tunnel syndrome, left hand. The Veteran also underwent surgical correction in January 2012 (right hand) and February 2012 (left hand). Regarding an in-service incurrence, although the medical evidence of record fails to demonstrate that the Veteran was diagnosed with carpal tunnel syndrome during his period of active service, his personnel records confirm his MOS of Maintenance man, Electrical Component; Electrical Motor Rewinder; and System Coordinator. The Veteran's statements as to his duties and repetitive motion activities in service are consistent with the circumstances of his active service MOS and are credible. Regarding a nexus between the claimed in-service disease or injury and the current disability, the evidence of record includes an October 2017 private opinion from Dr. Hall that there is a direct correlation between the Veteran's time spent at a keyboard and his subsequent development of carpal tunnel syndrome. Dr. Hall reviewed the Veteran's employment history while on active-duty and reasoned that the Veteran spent his career doing administrative work and soon after discharge, his carpal tunnel syndrome became profoundly symptomatic requiring surgical correction. Dr. Hall further reasoned that since the Veteran's operation, he has had no further difficulty, but also no longer does desk work; that difference in career path preretirement and postretirement is very compelling. Accordingly, the Board finds that the evidence shows that it is at least as likely as not that the Veteran's diagnosed carpal tunnel syndrome was incurred in service. Therefore, entitlement to service connection for carpal tunnel syndrome for the left and right wrists is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for carpal tunnel syndrome, left wrist, is granted. Service connection for carpal tunnel syndrome, right wrist, is granted. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs