Citation Nr: 1815780	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO.  15-40 879	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for a neurologic condition of the right upper extremity, to include neuropathy.

2.  Entitlement to service connection for a neurologic condition of the left upper extremity, to include neuropathy.


ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran had active service from November 1954 to March 1975.  He died in May 2017.  The appellant is his surviving spouse.  She was substituted in this appeal following the Veteran's death.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

The RO developed and adjudicated the service connection issues on appeal to include peripheral neuropathy only.  Prior to his death, however, the Veteran submitted supporting evidence indicating a broader scope for the claims, to include any neurologic condition in the upper extremities, especially carpal tunnel syndrome.  The Board has recharacterized the issues accordingly to best reflect the broader scope of the issue intended by the Veteran.  See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009).  As this occurred prior to the Veteran's death, this is not an impermissible expansion of the claim.  See 38 C.F.R. § 3.1010(f)(2).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

There is no probative diagnosis of peripheral neuropathy, but the Veteran's bilateral carpal tunnel syndrome is shown to be a result of his service.  


CONCLUSIONS OF LAW

1.  The criteria to establish service connection for carpal tunnel syndrome, right upper extremity, are met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313, 3.1010 (2017).

2.  The criteria to establish service connection for carpal tunnel syndrome, left upper extremity, are met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313, 3.1010 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The appellant is seeking service connection for a neurologic condition of the bilateral upper extremities.  Her primary contention is that this is due to the Veteran's Agent Orange exposure in Vietnam.  The evidence also raises an alternative theory of entitlement, indicating a direct nexus to the Veteran's duties as an aviator during service.  A secondary theory of entitlement is also raised as the Veteran is service-connected for diabetes.  

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

A.  Applicable Law

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary.  38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii).  The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam War period.  38 C.F.R. § 3.307.  For these Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue.  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. 

The list of diseases associated with exposure to certain herbicide agents includes early-onset peripheral neuropathy.  38 C.F.R. § 3.309(e).

The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury.  See 38 C.F.R. § 3.310.

B.  Discussion

In this case, the Board finds that service connection is warranted for carpal tunnel syndrome (CTS) of the upper extremities, but not peripheral neuropathy.  

The evidence confirms a diagnosis of CTS.  According to an October 2015 letter from a private orthopedic specialist, an electromyography (EMG) and nerve conduction study (NCS) conducted that day showed compression mononeuropathies in the upper extremities consistent with CTS.  A different private doctor wrote in an October 2015 statement that his examination of the Veteran was consistent with CTS.  

The evidence does not show a diagnosis of peripheral neuropathy, whether early-onset or otherwise.  A VA examination was conducted in April 2014 (during the Veteran's lifetime), and it showed no indication of peripheral neuropathy in either upper extremity.  The private EMG/NCS in October 2015 showed compression mononeuropathies in the upper extremities consistent with CTS, but gave no indication of peripheral neuropathy.  

The only indication of peripheral neuropathy appears in the private doctor's October 2015 statement, which indicated a "neuropathy in both upper extremities" related to bilateral CTS.  However, it is clear from an overall reading of this doctor's letter, especially in the context of the October 2015 orthopedic specialist's statement, that he was using the term "neuropathy" loosely to mean a neurologic condition manifested by CTS.  This doctor did not, at any point in the statement, identify a diagnosis of peripheral neuropathy.  Even if it did, the doctor stated that his assessment was based on his physical examination, but qualified that his diagnosis held "especially if the neurology reports confirm my diagnosis of bilateral [CTS.]"  Thus, this doctor's use of the term "neuropathy" does not establish a diagnosis of peripheral neuropathy.  

Accordingly, the evidence establishes a diagnosis of CTS, but not peripheral neuropathy.  

Regarding the in-service event requirement, the Veteran's service records confirm that he was an aviator during service.  According to the October 2015 letter from a private doctor, this duty involved thousands of hours controlling the collective instruments with his left arm and the cyclic with his right arm.  Accordingly, the Board finds that the Veteran's service is consistent with the time, places, and circumstances of such service.  See 38 U.S.C. §  1154(a), (b).  

Also, the Veteran had service in Vietnam during the Vietnam War from August 1965 to August 1966 and from January 1968 to January 1969.  Thus, his exposure to Agent Orange is presumed.  See 38 C.F.R. § 3.307(a)(6)(iii).  

Accordingly, in-service events are established.  

Finally, in the secondary service connection context, this element is essentially replaced by the existence of an already service-connected disability to which the claimed disability may be related.  As noted previously, the Veteran is currently service connected for diabetes.  Thus, this element is met for the secondary theory aspect of the claim as well.

Finally, as to the nexus requirement, the evidence is also in equipoise in showing that the Veteran's bilateral CTS was related to his service.  

The October 2015 private doctor's statement includes his opinion that it is most likely that the Veteran's "neuropathy in both upper extremities is related to bilateral carpal tunnel syndrome caused by the service-connected prolonged rotary wing aviation duty."  This doctor explained that he himself was a retired Master Flight Surgeon and that, during his career, he had seen numerous cases of CTS in rotary wing aviators, such as the Veteran.  The Board finds this opinion to be probative and especially persuasive given the doctor's particular background and expertise in this area.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Accordingly, it establishes a nexus to service.  

Service connection for peripheral neuropathy on a presumptive basis due to Agent Orange exposure is not warranted as the Veteran is not shown to have peripheral neuropathy and, even if so, it is not early onset peripheral neuropathy.  His case was reviewed by a VA physician in September 2015 to address this question.  It was this doctor's conclusion, based on a review of the file, that there was no evidence of early-onset peripheral neuropathy found during Vietnam service and within 1 year of service.  

Finally, as to the secondary theory, there is no indication of peripheral neuropathy or any other neurologic condition(s) in the upper extremities related to diabetes.  

Thus, overall, the evidence is in equipoise in establishing a diagnosis of bilateral CTS related to the Veteran's service as an aviator.  To this extent, the claim granted.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. 


ORDER

Service connection for carpal tunnel syndrome, right upper extremity, is granted.  

Service connection for carpal tunnel syndrome, left upper extremity, is granted.  



______________________________________________
A.J. Spector
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs