Citation Nr: 1815126 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 08-36 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for bilateral carpal tunnel syndrome. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. D. Logan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to May 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). By way of procedural history, in the October 2007 rating decision, the Veteran was denied, in pertinent part, service connection for bilateral carpal tunnel arthropathy. The Veteran filed a notice of disagreement and his appeal was perfected in November 2008 for bilateral carpal tunnel syndrome and a bilateral hearing loss disability. In a July 2012 Board decision, the Veteran was denied service connection for bilateral hearing loss, and the case was remanded for further development for the bilateral carpal tunnel syndrome claim. The Board remanded the case again in a November 2014 decision for further development. Thereafter, in an April 2016 Board decision, service connection for carpal tunnel syndrome was denied. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Remand (JMR) with the Court. In February 2017, the Court issued an Order granting the JMR, vacated the Board decision, and remanded the case for further action consistent with the JMR. In July 2017, the Board again remanded the case for development consistent with the JMR. The case has since returned for further appellate consideration. FINDINGS OF FACT 1. The Veteran did not sustain an in-service injury or disease of carpal tunnel syndrome in service. 2. The Veteran's bilateral carpal tunnel syndrome manifested many years after separation from service and is not causally or etiologically-related to service. CONCLUSION OF LAW The criteria to establish service connection for bilateral carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify Subsequent to the July 2017 remand, and in response to August 2017 authorization and release forms completed by the Veteran, VA received August to October 2004 records from Dr. Thomason of Carolina Orthopaedic & Sports Medicine Center, P.A., as well as 2004 operative records from CaroMont Regional Medical Center and associated Gaston Memorial Hospital laboratory records. Substantial compliance with the 2017 remand directives has been accomplished. In this case, neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board is therefore satisfied that there is no prejudice to the Veteran in adjudicating this appeal. Pertinent Laws and Regulations Governing Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). In addition, service connection may be granted for any disease 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). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Showing continuity of symptomatology since service under 38 C.F.R. § 3.303 (b) is an alternative means of linking a claimed disability to service, but is only available for the 'chronic diseases' specifically enumerated in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Relevant here, the claimed bilateral carpal tunnel syndrome is considered a chronic disease, namely an organic disease of the nervous system as listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) do apply for this condition. 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. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such 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 for service connection. 38 C.F.R. § 3.303 (b). Additionally, where a Veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran seeks service connection for bilateral carpal tunnel syndrome, which he contends was a result of the repetitive use of his hands while lifting heavy equipment required by his Military Occupational Specialty (MOS) as a diesel engineer in service. See January 2007 Statement in Support of Claim. The threshold consideration for any service connection claim is the existence of a current disability and the weight of the competent evidence in this case demonstrates that the Veteran is diagnosed with bilateral carpal tunnel syndrome. In this regard, the Veteran was afforded a VA examination in August 2007 where the examiner confirmed the Veteran was diagnosed with postoperative, bilateral carpal tunnel arthropathy in 2004. Thus, the first element required for direct service connection, the existence of a present disability, is met. Service connection for the Veteran's bilateral carpal tunnel syndrome based on chronicity or continuity of symptomatology is for consideration, as the disability is a chronic disease listed in 38 C.F.R. § 3.309 (a). However, neither chronicity nor continuity of symptomatology is demonstrated. To the contrary, there is no evidence of carpal tunnel symptoms in the service treatment records (STRs), including the January 1974 separation examination, as they are silent for any complaints, treatments, or diagnosis of hand pain or carpal tunnel syndrome while in service. Thus, the preponderance of the evidence therefore demonstrates that the Veteran did not experience chronic symptoms of a bilateral carpal tunnel syndrome in service. 38 C.F.R. § 3.303 (b). The first evidence of any carpal problems is not shown in the medical records until a May 2004 post-service private initial assessment where the Veteran complained of bilateral wrist pain with numbness and tingling, which is approximately 30 years after his service separation. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and can weigh against the claim). Accordingly, symptoms of bilateral carpal tunnel syndrome were not continuous since service. Accordingly, the preponderance of the evidence demonstrates that the Veteran did not experience continuous symptoms since he was discharged from service in 1974. Moreover, the Veteran's carpal tunnel did not manifest to a compensable degree during the first post-service year, and the evidence does not otherwise show manifestations of carpal tunnel to a degree of ten percent within one year of service separation. Accordingly, there is no basis for presumptive service connection for carpal tunnel syndrome as a chronic disease. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board further finds that the record also lacks competent and probative evidence of a nexus between the Veteran's bilateral carpal tunnel syndrome and his active service. The Veteran was afforded a VA peripheral nerves examination in August 2007 and two addendum medical opinions in October 2012 and December 2014. The Veteran complained of multiple non-service connected issues, but reported that the 2004 bilateral release surgeries on his hands seemed to help his carpal tunnel symptoms. The examiner noted the Veteran had been a truck driver for 32 years. He confirmed the Veteran's diagnosis of carpal tunnel syndrome, but concluded he could not determine whether the Veteran's condition was related to service without resorting to mere speculation. Pursuant to the July 2012 remand, an addendum was ordered as the Board determined the opinion did not contain an adequate rationale. In the October 2012 addendum medical opinion, the VA examiner opined that the Veteran's bilateral carpal tunnel arthropathy was not caused by or a result of repetitive movements in service because there is "no medical probability of repetitive movements in the 1970's resulting in a current bilateral carpal tunnel syndrome." In November 2014, the Board found the October 2012 medical opinion inadequate for its reliance on the lack of VA progress notes and failure to comply with the July 2012 Board remand directives. The Board remanded the matter again for an adequate medical opinion. Thereafter, in the December 2014 addendum opinion, the VA examiner opined that the Veteran's bilateral carpal tunnel arthropathy was less likely than not caused by his in-service duties of working with heavy motors as an engineer equipment repairman or otherwise related to service. The VA examiner noted that the Veteran's service records did not contain complaints regarding his hands and that private treatment records did not show a diagnosis until May 2004. The VA examiner further noted that during that time the Veteran was working as a truck driver, a job that involved a lot of gear changing, and he complained of pain, numbness, and tingling in both hands. The examiner concluded that the Veteran's carpal tunnel syndrome was more likely related to this occupation rather than military service. The Board finds that the weight of the lay and medical evidence demonstrates that the Veteran's bilateral carpal tunnel syndrome is not related to service. In making this determination, the Board finds the December 2014 medical opinion is particularly probative. The VA examiner reviewed the Veteran's medical records, demonstrated an accurate knowledge of the Veteran's medical history, and provided an adequate opinion and rationale. The Board considered the Veteran's lay statements regarding the etiology of his condition. While the Veteran is competent to report observable symptoms, under the specific facts of this case that include no in-service injury, disease, or even relevant symptoms, and no symptoms for over 30 years after service, the Veteran is not competent to relate his condition to service. Jandreau, 492 F.3d 1372. As a lay person, the Veteran does not have the requisite knowledge, training, or experience necessary to render a competent medical opinion regarding the cause of his carpal tunnel condition as it is a medically-complex neurological disorder. See Kahana, 24 Vet. App. at 437 (recognizing an ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Thus, the Veteran's statements, in the context of this case that include no in-service injury, disease, or symptoms, or symptoms for years after service, do not constitute competent evidence that has any tendency to relate the current carpal tunnel syndrome to service. Based on the foregoing, service connection for bilateral carpal tunnel syndrome is not warranted in this case. The preponderance of the evidence indicates that the Veteran's bilateral carpal tunnel syndrome did not incur in service, and may not be presumed to have incurred in service, and it is not shown to otherwise be related to service. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection for bilateral carpal tunnel syndrome that doctrine is not applicable in the instant appeal. See 38 U.S.C § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, the Veteran's service connection claim must be denied. ORDER Service connection for bilateral carpal tunnel syndrome is denied. ____________________________________________ S. B. Mays Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs