Citation Nr: 1805686 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-13 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral carpal tunnel syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty for training from July 1995 to January 1996, and on active duty from September 2004 to December 2005, and from April 2009 to May 2010. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In May 2013, the Veteran testified at a hearing before a Veterans Law Judge who has since retired from the Board. A written transcript of this hearing has been prepared and associated with the claims file. In June 2017, VA sent a letter to the Veteran informing him that the Veterans Law Judge was no longer with the Board, and asking whether he desired to have another hearing. He did not respond within 30 days from the June 2017 letter. Therefore the Board will proceed to render a decision based on the evidence of record. In January 2013, August 2013, and February 2016 the Board remanded the appeal for further development. The AOJ substantially complied with the remand directives and the case is again before the Board. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The evidence is in equipoise on whether the Veteran has a current diagnosis of a carpal tunnel syndrome, which is etiologically related to service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral carpal tunnel syndrome have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b). As the Board is granting the claim for service connection, the claim is substantiated and there are no further actions necessary on the part of VA to notify or assist. Wensch v. Principi, 15 Vet App 362, 367- 68 (2001); see also 38 U.S.C.A. § 5103A (a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). The Merits of the Claim The Veteran contends his carpal tunnel syndrome is related to his job duties as a mechanic. He has specifically asserted that the condition began during his second period of active service. Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection requires competent evidence showing (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Carpal tunnel syndrome, as an organic disease of the nervous system, is a "chronic disease" which is listed under 38 C.F.R. § 3.309 (a); therefore the presumptive provisions of 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); M21-1, Part III, subpart iv, chapter 4, section G.1.d (defining organic diseases of the nervous system). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303 (b). VA outpatient treatment records confirm a diagnosis of carpal tunnel syndrome. For example, a September 2008 VA record noted an outside consultation for an electromyographic test confirmed the symptoms were consistent with carpal tunnel syndrome. Thus, the Veteran has a current disability. Service treatment records during the Veteran's first and second periods of service do not reflect a diagnosis of the condition. However, the Veteran has contended that he felt the symptoms started in 2005 and reported that he believed the symptoms of hand numbness and cramping were related to his repetitive job duties as a mechanic while stationed in Iraq. See August 2007 VA treatment record. The Veteran's DD 214 for his second period of service and service personnel records confirm his specialty as power generated equipment repair. The Veteran is competent to describe his job duties and is also competent to describe symptoms such as numbness and cramping of the hands. The Board finds the Veteran's report of onset of his symptoms to be credible as he has consistently described the onset of his symptoms to be during his second period of service. Significantly, when the Veteran first sought treatment in 2007, prior to his filing a claim for benefits, he reported the symptoms began in 2005. Furthermore, the VA examiner in June 2016 noted that the Veteran "answered no to questions pertaining to numbness and tingling of the hands and feet in September 2015 If this had been bothersome would have expected a yes answer. This could certainly be caused by repetitive work as a mechanic but again apparently not that bothersome as he answered not to the question pertaining to numbness and tingling to the hands and feet in 2015." She further opined that the condition certainly was present before his last period of service. In providing this opinion, the examiner did not adequately consider the Veteran's lay report of symptoms of cramping and numbness from 2005 but rather relied solely on one report of medical history where he checked no. See Buchanan v. Nicholson, 451 F.3d. at 1335 (If lay evidence presented by the veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence). In two addendum opinions, the same examiner clarified that the condition was less likely related to his first or second period of service as there was no evidence and the record showed the condition began in 2007. In a January 2017 addendum the examiner clarified that the Veteran reported symptoms began in 2005 so it was most likely present during September 2004 to December 2005. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the etiology of any current carpal tunnel syndrome. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Here, the Veteran has consistently and credibly reported that his symptoms began during his second period of service. Furthermore, the Board finds it significant that the June 2016 VA examiner acknowledged that the Veteran's job duties could cause such a condition and in January 2017 confirmed that the symptoms were most likely present during the second period of service. Thus, resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for carpal tunnel syndrome is warranted and the Veteran's claim is granted. ORDER Service connection for bilateral carpal tunnel syndrome is granted. _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs