Citation Nr: 19124271 Decision Date: 04/02/19 Archive Date: 04/01/19 DOCKET NO. 12-28 120 DATE: April 2, 2019 ORDER Entitlement to service connection for bilateral carpal tunnel syndrome is denied. Entitlement to service connection for a thoracolumbar spine disorder is denied. REMANDED Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected residuals of a midline episiotomy, is remanded. Entitlement to service connection for a left hip disorder with left leg pain, to include as secondary to service connected residuals of a midline episiotomy, is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral carpal tunnel syndrome is not etiologically related to her active duty service. 2. The Veteran’s thoracolumbar spine disorder is not etiologically related to her active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for entitlement to service connection for a thoracolumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1977. Service Connection Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process – or relatively close thereto – can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection for certain chronic disorders may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated “chronic disease” such as arthritis shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for bilateral carpal tunnel syndrome Service treatment records do not reflect any treatment for wrist problems, and her April 1977 separation examination and report of medical history do not note any wrist problems. January and February 2001 private medical records indicate that the Veteran underwent surgery for bilateral carpal tunnel syndrome. During a September 2015 VA examination, the Veteran was diagnosed with bilateral carpal tunnel syndrome, post-surgery. The examiner noted that symptoms of bilateral carpal tunnel syndrome had their onset in 1989. The examiner determined that the disorder was less likely than not related to service. The examiner noted that carpal tunnel syndrome did not have its onset until 12 years after service. The examiner opined that in-service activities including breaking down and assembling an M-16; carrying duffle bags and backpacks; carrying radios; and carrying equipment and gear are motions of the extremities that are not repetitive. By contrast, carpal tunnel syndrome is a repetitive motion disorder. During her January 2017 Board hearing, the Veteran specifically testified that carpal tunnel syndrome began around 2000, which is shortly before her 2001 surgery for bilateral carpal tunnel syndrome. As there is no credible evidence of continuity of symptomatology since service or the manifestation of carpal tunnel syndrome within one year of service, service connection is not warranted based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) or based upon being manifest to a compensable degree within one year of service discharge under 38 C.F.R. § 3.309(a). In this case, the September 2015 VA examiner reviewed the claims file, examined, the Veteran, and provided an adequate rationale as to why bilateral carpal tunnel syndrome is less likely than not etiologically related to service. The Veteran herself is not shown to possess the requisite training and expertise to provide competent opinion linking her carpal tunnel syndrome to her military duties. As such, entitlement to service connection for carpal tunnel syndrome is not warranted. 2. Entitlement to service connection for a thoracolumbar spine disorder January and October 1975 service treatment records reflect that the Veteran sought treatment for back pain. However, her April 1977 included her specific denial of recurrent back pain and clinical examination indicated a normal spine. October 2011 private medical records reflect treatment for back pain, and the private physician indicated that the back pain was most likely related to carrying heavy loads during service. However, the physician offered no rationale for that opinion. During an August 2012 VA examination, the Veteran was diagnosed with lumbar strain. Imaging of the lumbar spine was negative at that time. The examiner determined that the lumbar strain was less likely than not related to service, noting no documentation of treatment for “any back condition” during service. The Board finds this opinion to be inadequate, as service treatment records do reflect treatment for back pain. June 2014 private medical records reflect treatment for back pain after a motor vehicle accident. During an April 2015 VA examination, the Veteran was diagnosed with lumbosacral strain. The examiner noted two isolated back complaints in the service treatment records, and noted the June 2014 motor vehicle accident. Additionally, the examiner noted that imaging reflected thoracolumbar spine arthritis. The examiner determined that the thoracolumbar spine disorder was less likely than not related to service. The examiner evaluated the disorder prior to the June 2014 motor vehicle accident, and also evaluated the in-service treatment for back pain. The examiner opined that those treatment records did not reflect a progressive condition or chronicity of symptoms. The examiner opined that the current disorder was not etiologically related to service treatment for back pain 37 years earlier. During her January 2017 Board hearing, the Veteran testified to having back pain in service, and to having worsening symptoms beginning around 2007. She is competent to report experiencing these symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Veteran is not competent to determine the etiology of her current thoracolumbar spine disorder. The Veteran is not competent because she lacks the requisite medical training necessary to formulate an opinion in this regard and the medical matters here are not susceptible to lay observation (unlike a broken leg). Id. Therefore, the Veteran’s medical opinion linking a thoracolumbar spine disorder to service has no probative value. The Board assigns greater probative value to the April 2015 VA examiner’s medical opinion as it was prepared by a skilled, neutral medical professional after review of the claims file and an examination of the Veteran. Furthermore, it is supported by a complete rationale based upon review of the claims folder, including the Veteran’s denial of recurrent back pain upon separation from service which the Board finds is the most credible recollection. While the claims file does contain October 2011 private medical records indicating back pain most likely related to carrying heavy loads during service, the private physician provided no supporting rational for that determination including no specific analysis of the significance of the Veteran’s denial of recurrent back pain at separation. The Board has also considered Veteran’s contentions and recollections. The most credible recollection consists of her denial of recurrent back pain at service separation as this statement was made contemporaneous to the time period in question and was made in the context of seeking appropriate medical diagnosis. See Lilly’s An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Her current recollection of chronic back problems since service is not consistent with her prior denial of such at service discharge, and is afforded less probative weight. As such, the Board finds the credible evidence establishes there has been no continuity of symptomatology since service and no competent evidence of arthritis being manifest within the first post-service year. As such, service connection pursuant to the provisions of 38 C.F.R. § 3.303(b) and 38 C.F.R. § 3.309(a) is not warranted. The Board further notes that the Veteran is not shown to be competent to diagnose the onset and etiology of an orthopedic disorder and, as such, her own personal opinion holds no probative value. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. As the evidence is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. 5107(b); 38 C.F.R. 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected residuals of a midline episiotomy, is remanded. 2. Entitlement to service connection for a left hip disorder with left leg pain, to include as secondary to service connected residuals of a midline episiotomy, is remanded. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for a left shoulder disorder and a left hip disorder because no VA examiner has opined whether these disorders have been caused or aggravated by service-connected residuals of a midline episiotomy, and no examiner has addressed relevant testimony indicating both disorders began in the early 1980’s. A remand is needed to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Obtain VA treatment records since November 2018 and associate them with the claims file. 2. Forward the Veteran’s claims file to a qualified examiner for an opinion addressing the etiology of the Veteran’s left shoulder disorder and left hip disorder. The examiner should answer the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s diagnosed left shoulder disorder began in service, was caused by service, or is otherwise etiologically related to active duty service? (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s diagnosed left shoulder disorder is caused or aggravated beyond the normal progress of the disorder by service-connected residuals of a midline episiotomy? (c) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s diagnosed left hip disorder began in service, was caused by service, or is otherwise etiologically related to active duty service? (d) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s diagnosed left hip disorder is caused or aggravated beyond the normal progress of the disorder by service-connected residuals of a midline episiotomy? In answering these questions, the examiner should address the following: • the Veteran’s current service-connected residuals of a midline episiotomy; • Service treatment records reflecting treatment for left hip pain (see, e.g., October 1975 Service Treatment Records); • Current diagnoses of left hip strain and left shoulder strain (see, e.g., August 2012 VA Examination); • October 2011 private medical records reflecting left shoulder pain due to carrying heavy loads during service; • August 2012 VA examination reflecting no hip disorder, and reflecting no nexus between a left shoulder disorder and service see also April 2015 VA Examination); • June 2014 private medical records reflecting a motor vehicle accident that injured the Veteran’s left hip and left shoulder; and • the Veteran’s January 2017 hearing testimony that she carried equipment and laid wire during service, and her daughter’s testimony that the Veteran’s hip trouble began in the early 1980’s. If an examination is needed, one should be scheduled. A complete rationale must be provided for any opinion offered. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel