Citation Nr: 18154393 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 10-35 813 DATE: November 29, 2018 ORDER Service connection for left and right carpal tunnel syndrome (CTS) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s left and right CTS are related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement for service connection for left and right CTS have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to August 1969, to include service in Vietnam for which he received the Purple Heart. These matters initially came before the Board of Veterans’ Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center, which denied the Veteran’s claims for service connection for peripheral neuropathy of the left and right upper extremities. In February 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In June 2017, the Board remanded the claims to the agency of original jurisdiction (AOJ) for further development. Service connection for right and left carpal tunnel syndrome is granted. The Veteran claimed he has peripheral neuropathy in the upper right and left extremities. However, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence. The Veteran was diagnosed with carpal tunnel syndrome (CTS) on the September 2017 VA examination. Therefore, the Board adjudicates his claims as service connection for CTS. Service connection will be granted if the evidence demonstrates that the current disability resulted from an injury or disease incurred in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, direct service connection is warranted 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). CTS is an organic disease of the nervous system and therefore a chronic disease. The Veteran has a current disability for service connection purposes because a September 2017 VA examination diagnosed the Veteran with left and right CTS. The September 2017 diagnosis was based on the Veteran’s description of tingling and numbness as well as a private August 2009 EMG study and CTS diagnosis. The Veteran’s DD Form 214 indicates that he was awarded several medals including the Purple Heart. The Purple Heart medal indicates the Veteran engaged in combat with the enemy. The finding that the Veteran engaged in combat is significant because it allows a combat Veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred, if consistent with the circumstances of service. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). Here, although the Veteran’s service treatment records (STRs) are silent for any evaluation, treatment, or diagnosis of a bilateral wrist condition, the Veteran’s lay statements of numbness and tingling are credible and consistent with the circumstances of his service. The in-service disease or injury element of the claim has therefore been met. Thus, the remaining issue is whether there is a causal relationship between the current CTS and the Veteran’s service. The September 2017 VA medical examination addressed this matter. Although the examiner opined that the Veteran’s disabilities were less likely than not incurred in or caused by service, the examiner’s reasoning is flawed. In reaching this negative opinion, the examiner focused on the absence of CTS references in the Veteran’s STRs and reasoned that the absence of CTS medical records meant the Veteran’s CTS was not related to his service. The September 2017 VA examiner’s opinion also implied that had there been records of CTS in the STRs, the examiner would have found a relationship between the current CTS and service. The examiner’s emphasis on a lack of mention of CTS in the STRs is flawed because this is precisely the type of reasoning the combat rules are designed to prevent. Congress enacted section 1154(b) because of its concern that combat Veterans faced “major obstacle[s]” when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. H.R. Rep. No. 1157, at 3 (1941). In many instances, medical records do not survive combat conditions. Id. Furthermore, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. The statute, moreover, specifically provides that the VA must “resolve every reasonable doubt in favor of the veteran” when determining whether a combat veteran incurred a particular injury or disability while in active service. Id. In addition, medical opinions that do not take account of competent credible lay statements are inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). The September 2017 VA examiner did not consider the Veteran’s statements affirmatively indicating he experienced symptoms of numbness and tingling in service. Moreover, the Veteran clearly articulated why his STRs lack mention of CTS. In an October 2018 statement, the Veteran indicated that due to combat circumstances he did not report his symptoms. In addition, there is competent, credible evidence of continuous symptoms of the numbness and tingling. For instance, in the September 2009 Notice of Disagreement, the Veteran stated he had numbness and tingling problems “ever since [his] return from Nam.” Similarly, in an October 2018 statement to the Board, the Veteran implied he has had CTS symptoms since Vietnam. Significantly, the numbness and tingling described by the Veteran as having been experienced in and since service were the same symptoms upon which the CTS diagnoses were based, thus establishing a nexus. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s right and left CTS had their onset in 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 right and left CTS is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lopez, Law Clerk