Citation Nr: 18152399 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 14-39 007 DATE: November 21, 2018 ORDER Entitlement to service connection for lower back disorder is denied. Entitlement to service connection for left wrist carpal tunnel syndrome (CTS) is denied. Entitlement to service connection for right wrist CTS is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s lower back disorder 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 wrist CTS 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 wrist CTS began during active service or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the Veteran’s lower back disorder have not been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for the Veteran’s left wrist CTS have not been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for the Veteran’s right wrist carpal tunnel (CTS) have not been met. 38 U.S.C. §§ 1111, 1131, 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 December 1957 to December 1960. This case was initially before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified during a hearing before the undersigned Veterans Law Judge that was conducted by videoconference. A transcript of the hearing has been associated with the record. In November 2017, the Board remanded the issues of entitlement to service connection for lower back disorder and bilateral CTS to the Agency of Original Jurisdiction (AOJ) for scheduling of VA examinations to determine current etiology of any current lumbar spine disorder and bilateral CTS. The AOJ substantially complied with all remand orders. 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 military service. As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Lower Back Disorder Regarding his lower back disorder, the question before the Board remains 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 Veteran has a current diagnosis of degenerative arthritis of the lower spine (2/1/2018 C&P Exam, p. 1 and 2/2/2017 Medical Treatment Record-Non Government Facility, pgs. 12-19) and contends that his back pain began during active service when he and a friend were swimming and diving in a pool and his back started hurting (2/1/2017 Hearing Transcript, p. 8). This account is supported by the Veteran’s service treatment record entry of February 1959: “Hurt back about 1 week ago. Pain in certain positions - Leaning backward” (7/26/2013 STR, p. 5). Pursuant to the November 2017 remand, the Veteran was afforded a VA examination in January 2018. The January examiner opined that the Veteran’s lower back disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran’s episode of back pain in 1959 and that his separation physical examination was normal, with no evidence of continued back problems until almost 40 years later. From then the Veteran has had fairly consistent back pain and radiographic evidence of degenerative disc disease. The examiner explained degenerative disc disease is usually caused by microtrauma from everyday life and is common as men age. The examiner found no evidence of trauma to the back or chronic back disease during service, nexus, or radiographic evidence of old injury or trauma and it is not possible to connect his current back disease to his military service. The examiner acknowledged that the Veteran could have had episodes of back pain for many years as reported; however, without additional medical evidence to suggest a chronic lumbar spine condition until the visits and radiographs in 1998, the examiner could not use the reported symptoms to determine a nexus from the military service to his current lumbar spine disease. (2/1/2018 C& P Exam, p. 2-3). The Veteran provided lay evidence that he had been receiving chiropractic treatment for his back since 1966 (9/26/2018 VA 21-4138 Statement in Support of Claim, pgs. 2-4; 9/26/2018 Third Party Correspondence p. 1; and 9/26/2018 Correspondence, p. 1). This evidence is consistent with the January 2018 examiner’s statement and consideration of “episodes of pain for many years” as reported by the Veteran. The Veteran also provided a statement from S.J.T., MD confirming his current diagnosis of Degenerative Disc Disease and Bone Spurs of the lumbar spine. The Veteran’s doctor opines that it is “certainly possible that his duties while in service may have contributed to these diagnoses.” (9/26/2018 Medical Treatment Record Non-Government Facility, p. 1). While favorable to the Veteran, this opinion is speculative in nature and lacks rationale. Therefore, the Board finds it to be of less probative value than the opinion of the January 2018 examiner. As a matter of clarification, the January 2018 examiner noted that from December 1998 through 2016, available chiropractor notes indicate that the Veteran was seen for low back pain, and noted that the Veteran had fallen off a horse in October 2008 and July 2014. The Board notes while an October 2008 fall is not supported by the referenced chiropractic records, an October 2004 fall is documented (2/2/2017 Medical Treatment Record Non-Government Facility, pgs. 16-18). This administrative discrepancy does not impact the competence, credibility, or weight the Board assigns to the January 2018 medical opinion. Moreover, the Board acknowledges that arthritis is a chronic disease under 38 C.F.R. § 3.309(a). As such, an award of service connection can be appropriate solely based on continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 ( Fed. Cir. 2013). Here, the record demonstrates back complaints and treatment for many decades. However, the examiner in 2018 acknowledged this history and nevertheless could not conclude that the earlier complaints stemmed from the same chronic disability. In other words, the examiner could not attribute the earlier treatment to the arthritis diagnoses decades later. In light of this, the Board finds no basis for an award based on continuity of symptomatology. Walker; 38 C.F.R. § 3.303(b). The Veteran believes that his current low back disability is due to active service, but he lacks the requisite medical training to opine on causation in a matter such as this, which is medically complex. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds the preponderance of the evidence is against finding nexus between the Veteran’s active service and current lower back disorder and the claim for service connection is denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Left and Right Wrist Carpal Tunnel Regarding his left and right wrist CTS, the question before the Board is whether the Veteran’s bilateral CTS began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a current diagnosis of bilateral carpal tunnel syndrome (CTS) that required surgery, performed in September and December 2016 (2/2/2017 Medical Treatment Record Non-Government Facility, pgs. 8-11). The Veteran contends that his bilateral CTS was caused by significant amounts of typing performed during his military service as a communications technician (2/1/2017 Hearing Transcript, p. 3 and 10/30/2014 Form 9, p.1). The Veteran was afforded a VA examination in January 2018, and the examiner opined that the Veteran’s bilateral carpal tunnel syndrome was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner did not find evidence of in-service CTS or wrist or hand symptoms which would suggest CTS during his military service. Citing to a medical journal, the examiner continues “typing by itself does not appear to be a major risk factor…given the few years the Veteran was required to type and the many years of labor afterwards it is less likely than not that the Veteran’s CTS was due to typing during the service” (2/1/2018 C& P Exam, p. 4-5). (Continued on the next page)   Weighing the testimony of the Veteran regarding his active service typing, and his 39-year career, post active service, that included routine hand motions, specifically sorting mail (2/1/2017 Hearing Transcript, p. 4), the absence of in-service complaints of wrist or hand injury, and the examiner’s opinion that the Veteran’s CTS is less likely than not incurred in service, the Board concludes that, while the Veteran has a current diagnosis of bilateral CTS, the preponderance of the evidence is against finding that the condition 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). Accordingly, entitlement to service connection for both, left wrist CTS and right wrist CTS, is denied. In arriving at the decision to deny the claim, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. A. Myers, Associate Counsel