Citation Nr: 18151311 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-23 944 DATE: November 16, 2018 ORDER Entitlement to service connection for right elbow ulnar neuritis is denied. Entitlement to service connection for left carpal tunnel syndrome is denied. Entitlement to service connection for right carpal tunnel syndrome is denied. Entitlement to service connection for a neurological disability of the right upper extremity, other than right elbow neuritis and peripheral neuropathy, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s right elbow ulnar neuritis began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that the Veteran’s left carpal tunnel syndrome began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that the Veteran’s right carpal tunnel syndrome began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that the Veteran has a neurological disability of the right upper extremity, other than right elbow neuritis and peripheral neuropathy, that began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right elbow ulnar neuritis are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for left carpal tunnel syndrome are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for right carpal tunnel syndrome are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a neurological disability of the right upper extremity, other than right elbow neuritis and peripheral neuropathy, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1944 to June 1946. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in September 2017. The Board finds there has been substantial compliance with its September 2017 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Although the Board acknowledges that the VA examination opinions are not adequate, the Veteran declined to appear for the examinations scheduled in compliance with the September 2017 remand directives, and has not provided any explanation or indication that he would be willing to attend if the examination was rescheduled. Therefore, VA has done all that it reasonably can to fulfill the duty to assist, and the Board finds that the duty to assist has been met. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) Service Connection 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 1. Entitlement to service connection for right elbow ulnar neuritis The Veteran contends that his right elbow ulnar neuritis is the result of an incident in service when he was forced to hang from a narrow ladder for hours during a typhoon in April 1945. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of right elbow ulnar neuritis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). While the Veteran is competent to report that he tightly clung to a ladder rung for several hours during a typhoon, the Board cannot overlook the fact that, according to a September 2010 response from the Defense Personnel Records Information Retrieval System (DPRIS), the deck logs for the Veteran’s ship do not indicate that the ship encountered a typhoon in April 1945. This inconsistency negative impacts the credibility of the Veteran’s account of a typhoon. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board finds that because the deck logs are contemporaneous accounts, they are more probative, and the most probative evidence of record thus weighs against finding that the Veteran gripped a ladder for hours during a typhoon in April 1945. A September 2010 VA examination noted a diagnosis of ulnar neuritis on the right upper extremity, but did not provide an etiological opinion. An addendum opinion from early December 2010 stated that there is no documentation to support that the Veteran has “these massive amounts of injuries,” but also stated that his story is consistent with the massive amount of injuries. The clinician wrote that “[t]hese injuries that he has are complex and they are not explained by daily trauma,” and are explained by the specific trauma that he had and could have had, which would have been a large traumatic accident similar to him being blown out of the crow’s nest. The clinician concluded that because there are no records that could definitively prove this, as they have been destroyed, it is felt that this is at least as likely as not related to his service injuries. Later that month the clinician revised this medical opinion, stating that “based on just the service record, there is no proof that this patient was actually seen because this service record does not show this, this is left to pure speculation based on review of just the service medical record whether this would be related or not.” The September 2017 remand instructed that a new examination should be conducted, noting the inadequacy of these examination opinions. Unfortunately, the Veteran refused the examination in May 2018, and the Board must make a decision based upon the evidence of record. 38 C.F.R. § 3.655(b). The Board notes that the December 2010 opinions do not specifically discuss right elbow neuritis at any point, but rather refers vaguely to “massive amounts of injuries” and “this.” Additionally, the first December 2010 opinion relates the “massive amounts of injuries” to being blown out of the crow’s nest, an incident that the Veteran has not related to his right elbow ulnar neuritis. The Veteran has argued that several other disabilities, which were also the subject of the September 2010 examination and December 2010 opinion, were related to falling or being blown out of the crow’s nest, but he has consistently related his right elbow ulnar neuritis to clinging to a ladder for several hours in the middle of a typhoon. The typhoon incident has not been discussed by either December 2010 opinion, and it is unclear whether the right elbow ulnar neuritis is the subject of the December 2010 opinions. Moreover, the December 2010 opinions are contradictory, confusing, and vague. The Board cannot find a positive nexus opinion for right elbow ulnar neuritis. The most probative evidence of record weighs against finding an in-service injury, event, or disease that is the cause of the Veteran’s right elbow neuritis, and against the finding of a nexus between service and the right elbow neuritis. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for left carpal tunnel syndrome 3. Entitlement to service connection for right carpal tunnel syndrome The Veteran asserts that his left and right carpal tunnel syndrome was also caused by gripping a ladder for hours during a typhoon in April 1945. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of left and right carpal tunnel syndrome, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As discussed above, the deck logs, which do not indicate that the Veteran’s ship encountered a typhoon in April 1945, are contemporaneous records and are thus more probative than the Veteran’s memory. Therefore, there is a lack of demonstration of an in-service event that is the basis of these claims. The VA medical opinions discussed in this decision are vague and contradictory, and do not specifically discuss carpal tunnel syndrome, as opposed to the several other disabilities that were on appeal at the time that the opinions were written. The Board cannot find that there is a positive nexus opinion for carpal tunnel syndrome of the left or right upper extremity, and the Veteran’s refusal of a new examination in May 2018 prevents VA from obtaining an adequate medical opinion. As the preponderance of the evidence is against the Veteran's claims, there is no reasonable doubt to be resolved, and the claims must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for a neurological disability of the right upper extremity, other than right elbow neuritis and peripheral neuropathy The Veteran believes that he has a neurological disability of the right upper extremity, other than right elbow neuritis and peripheral neuropathy, that was caused by gripping a ladder for several hours during a typhoon in April 1945. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence is against a finding that any such disability began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The September 2010 examination noted diagnoses of bilateral carpal tunnel and ulnar neuritis on the right, and noted symptomatic numbness in both hands is associated with the Veteran’s diagnosis for peripheral neuropathy, but did not provide a diagnosis for any other neurological disability of the right upper extremity. The Board recognizes that an April 2009 private treatment note found evidence of moderate median nerve entrapment at the right wrist, which is a neurological diagnosis of the right upper extremity. However, no medical opinion of record specifically addresses whether such median nerve entrapment is related to service, including gripping a ladder for several hours during a typhoon, and the medical opinions of record are inadequate due to their contradictory and vague nature. The Veteran has refused to present for additional examination. Moreover, as has been discussed elsewhere in this decision, the most probative evidence of record does not demonstrate that the Veteran’s ship encountered a typhoon in April 1945. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Budd, Counsel