Citation Nr: 1808242 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-26 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hand and wrist arthritis, to include as secondary to the service-connected benign essential tremors. 2. Entitlement to service connection for bilateral carpal tunnel syndrome, to include as secondary to the service-connected benign essential tremors. 3. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from December 1978 to October 1990, and she had additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the VA Regional Office (RO) in Cleveland, Ohio. In July 2013, the Veteran testified at Travel Board hearing conducted before the undersigned. These issues were remanded for further development in October 2014. In August 2017, the Veteran requested a second hearing before a member of the Board. The law does not require that the Veteran be afforded a second hearing merely because she requests one. Rather, she must demonstrate good cause. See 38 C.F.R. § 20.1304(b). The Veteran has not identified why she would like a second hearing. As she has not shown good cause as to why a second hearing should be warranted, her request is denied. The issue of service connection for bilateral wrist and hand arthritis being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's current bilateral carpal tunnel syndrome is not shown to be etiologically related to service, or to her service-connected benign essential tremors. 2. The Veteran's current bilateral knee disorder is not shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral carpal tunnel syndrome, to include as secondary to the service-connected benign essential tremors, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307. 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Service connection claims A. Applicable laws and regulations Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a), (b). Certain disabilities, including arthritis and organic neurologic disorders, are presumed to be service connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. B. Bilateral carpal tunnel syndrome In this case, the Board acknowledges the diagnosis of current bilateral carpal tunnel syndrome; wrist complaints have been noted since November 1996, while a May 1997 record shows a diagnosis of carpal tunnel syndrome. The Board has reviewed the service treatment records and notes no carpal tunnel syndrome treatment, although there are complaints of benign essential tremors in April and July 1990. In October 1990, the Veteran declined a separation examination; a November 1992 examination during her reserve service showed no wrist or neurologic complaints. Given the above, the remaining question for the Board is whether there is an etiological relationship, or nexus, between the current disability and service; or a nexus to the service-connected benign essential tremors. The Veteran described having wrist pain during service as a result of her duties during her July 2013 hearing. Evidence directly addressing the question of nexus is limited to a September 2010 VA joint conditions examination report and May 2016 VA peripheral nerves conditions examination report. The 2010 VA examiner, after a claims file review, opined that the Veteran's bilateral carpal tunnel syndrome was not caused by or aggravated by the service-connected benign essential tremor of the upper extremities. The 2016 examiner, after a claims file review, opined that bilateral carpal tunnel syndrome was less likely than not incurred in or caused by or had its onset during service. They further opined that it was less likely than not proximately due to or caused by or permanently aggravated beyond the natural disease progression by the service-connected benign essential tremor. The Board finds that the 2010 and 2016 VA examination opinions are the most probative evidence of record, as the examiners reviewed the claims file and provided detailed rationales. In the 2010 opinion, the examiner opined that there was no nexus to link the carpal tunnel syndrome and the benign essential tremor, based on a lack of any such causal association being found in the medical literature. They further opined that the timing with the tremor starting at the same time as the hand numbness and tingling would favor a hereditary neurologic condition manifesting as a tremor along with a peripheral nerve disorder, rather than the tremor causing the median neuropathy immediately after its onset. The 2016 examiner noted that the Veteran had a diagnosis of bilateral carpal tunnel syndrome in May 1997, several years after service with no objective evidence supporting a diagnosis of carpal tunnel syndrome in 1994 per the evidence of record. They noted that there was no chronicity of complaints, symptoms, or care for any carpal tunnel syndrome since leaving service until 1997 in the evidence of record. They also opined that there was no medical nexus with which to link the carpal tunnel syndrome and the benign essential tremors. The examiner further opined that there was no evidence of any permanent aggravation of the Veteran's bilateral carpal tunnel syndrome by the service-connected benign essential tremors in the evidence of record. They concluded that there was no medical nexus for which the Veteran's benign essential tremors would aggravate the bilateral carpal tunnel syndrome beyond the normal disease progression. As to the Veteran's own contentions, she is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In summary, the preponderance of the evidence is against the claim for service connection for bilateral carpal tunnel syndrome, and the claim must be denied. 38 U.S.C. § 5107(b). C. Bilateral knee disorder In this case, the Board acknowledges the diagnosis of a current bilateral knee disorder; left knee surgeries and occasional discomfort in her right knee were first noted at a November 1992 VA examination. While the Veteran was diagnosed with status post-operative multiple surgeries of the left knee, no diagnosis of any current bilateral knee disorder was made in 1992. Mild osteoarthritis was first shown in April 2010 X-rays; bilateral knee X-rays in November 2001 were normal. The Board has reviewed the service treatment records and notes complaints of knee pain in July 1990 with a diagnosis of retro-patellar pain syndrome. In October 1990, the Veteran declined a separation examination; a November 1992 examination during her reserve service showed no knee complaints. Given the above, the remaining question for the Board is whether there is an etiological relationship, or nexus, between the current disability and service, specifically the in-service report of knee pain. The Veteran described having knee pain in July 1990 during her July 2013 hearing. Evidence directly addressing the question of nexus is limited to a May 2016 VA knee and lower leg conditions examination report. The VA examiner, after a claims file review, opined that the Veteran's bilateral knee condition was less likely than not incurred in or caused by the treatment for knee pain in-service. The Board finds that the 2016 VA examination opinion is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. The examiner opined that the in-service diagnosis had since resolved without residual per the evidence of record with no chronicity of complaints, symptoms, or care for any retropatellar pain syndrome or bilateral knee condition since leaving service until 2010 per the evidence of record. They noted that the Veteran had normal bilateral knee X-rays in November 2001 with no evidence of osteoarthritis, which made it less likely than not that the Veteran's osteoarthritis was caused by service. They opined that the current disability was likely due to the Veteran's nonservice-connected risk factors of advanced age and generalized osteoarthritis in multiple joints. They noted that the November 1992 VA examination had no complaint or diagnosis of any left or right knee condition. The Board reiterates that although the 1992 examiner diagnosed post-operative surgeries, no condition of a current bilateral knee disorder was provided at that time. As to the Veteran's own contentions, she is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau v, 492 F.3d at 1377. Indeed, under VA regulations, arthritis is a disease that is shown by x-rays. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. In summary, the preponderance of the evidence is against the claim for service connection for a bilateral knee disorder, and the claim must be denied. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for bilateral carpal tunnel syndrome, to include as secondary to the service-connected benign essential tremors, is denied. Entitlement to service connection for a bilateral knee disorder is denied. REMAND During her July 2013 hearing, the Veteran testified that she had wrist pain in service. The Veteran was provided VA wrist and hand conditions examinations in May 2016. The examiner opined that the wrist arthritis was not caused or aggravated by the service-connected benign essential tremors. They further opined that there was no hand arthritis and that if there was, it was not caused or aggravated by the benign essential tremors. However, no medical opinion with regard to whether any bilateral wrist and hand arthritis is related to her military service has been obtained. In light of the Veteran testifying about wrist pain in service, the Board concludes that a nexus opinion as to direct service connection is necessary per 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum medical opinion from the May 2016 VA wrist and hand conditions systems examiner (or, if unavailable, from a medical professional with appropriate expertise) to determine the etiology of any diagnosed bilateral wrist and hand arthritis. The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosed bilateral wrist and hand arthritis had its onset in service or is related to the Veteran's military service. A complete rationale should be given for all opinions and conclusions expressed. The examiner should consider the Veteran's reports of wrist pain during service. 2. After the completion of any other development deemed necessary, furnish the Veteran and her representative with a Supplemental Statement of the Case and give her an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs