Citation Nr: 21065592 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-34 897 DATE: October 26, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for low back condition. New and material evidence has been received to reopen a claim of entitlement to service connection for right wrist condition. New and material evidence has been received to reopen a claim of entitlement to service connection for left wrist condition. New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. Entitlement to service connection for carpal tunnel syndrome of the right wrist is granted. Entitlement to service connection for carpal tunnel syndrome of the left wrist is granted. Entitlement to service connection for chronic low back pain is granted. Entitlement to service connection for hypertension is granted. FINDINGS OF FACTS 1. In October 2005, the claims of entitlement to service connection for low back condition, right wrist condition, left wrist condition, and hypertension were denied; the Veteran did not appeal this decision and new and material evidence regarding the conditions was not received within the one-year appeal period. 2. New and material evidence was received since October 2005 to reopen the claims. 3. Resolving reasonable doubt in the Veteran's favor, her current bilateral carpal tunnel syndrome had its onset in service. 4. Resolving reasonable doubt in the Veteran's favor, her chronic low back pain causes functional impairment of earning capacity and had its onset in service. 5. The Veteran's hypertension began during service. CONCLUSIONS OF LAW 1. The October 2005 rating decision denying service connection for low back condition, right wrist condition, left wrist condition, and hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The claim for service connection for low back condition is reopened. 38 U.S.C.§§ 5108, 7105; 38 C.F.R. § 3.156. 3. The claim for service connection for right wrist condition is reopened. 38 U.S.C.§§ 5108, 7105; 38 C.F.R. § 3.156. 4. The claim for service connection for left wrist condition is reopened. 38 U.S.C.§§ 5108, 7105; 38 C.F.R. § 3.156. 5. The claim for service connection for hypertension is reopened. 38 U.S.C.§§ 5108, 7105; 38 C.F.R. § 3.156. 6. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for right wrist carpal tunnel syndrome have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. 7. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for left wrist carpal tunnel syndrome have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. 8. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for low back pain have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. § 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 August 2000 to November 2004. She has additional service in the reserves. These claims were appealed to the Board of Veterans' Appeals (Board) from a December 2012 rating decision. The Veteran filed a notice of disagreement (NOD) in January 2013, which resulted in a May 2017 statement of the case (SOC). The Veteran subsequently filed a substantive appeal in July 2017 and requested a videoconference hearing. The hearing was conducted in April 2021 before the undersigned and a transcript of the hearing is of record. 1. New and material evidence has been received to reopen a claim of entitlement to service connection for low back condition. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for right wrist condition. 3. New and material evidence has been received to reopen a claim of entitlement to service connection for left wrist condition. 4. New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a); Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. In this case, the claims for service connection for low back condition, right wrist condition, left wrist condition, and hypertension were denied in October 2005, in part, because the evidence at the time did not show current disabilities. The October 2005 rating decision was final because an appeal was not filed, and new and material evidence was not received within the one-year appeal period. Since October 2005, the Veteran gave testimony that she has functional loss due to her low back pain and bilateral wrist pain at the April 2021 hearing. Moreover, VA treatment records from February 2015 and September 2014 reflect diagnoses of lower back pain (myofascial pain) and carpal tunnel syndrome, respectively. With respect to the claim regarding hypertension, an August 2012 VA examination shows that she has hypertension. The Veteran's testimony and the aforementioned medical evidence was not previously considered by the Agency of Original Jurisdiction and it is material as it goes towards establishing current disability of low back condition, bilateral wrist condition, and hypertension. Therefore, the Board finds new and material evidence that warrants reopening the claims for low back condition, right wrist condition, left wrist condition, and hypertension. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 5. Entitlement to service connection for carpal tunnel syndrome of the right wrist is granted. 6. Entitlement to service connection for carpal tunnel syndrome of the left wrist is granted. The Veteran contends that service connection for bilateral carpal tunnel syndrome is warranted. Review of the Veteran's VA treatment records reflect carpal tunnel syndrome as an active problem during the appeal period. See e.g. September 2014 Women's Health Note. The Veteran was diagnosed with bilateral carpal tunnel syndrome in service in September 2004. VA primary care follow-up note from April 2005 reflects that she continued to have pain that was a manifestation of her carpal tunnel syndrome and reportedly related to excessive typing and heavy lifting. The Veteran credibly testified that she has had the same carpal tunnel syndrome symptoms in her wrists since the military. See hearing transcript at 13. Reviewing the evidence in a light most favorable to the Veteran and affording her the benefit of the doubt, the Board finds that the Veteran continued to experience the same symptoms in the military and after her separation from the military. The Veteran is competent to report that she experienced symptoms of bilateral wrist pain. Her testimony is credible and entitled to probative weight, as it is internally consistent and consistent with her service treatment records, which show that the Veteran had carpal tunnel syndrome of the bilateral wrists in service. Considering the totality of the evidence of record in light most favorable to the Veteran and resolving reasonable doubt in her favor, the Board finds that the Veteran's right and left wrist carpal tunnel syndrome had its onset while in service. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for right and left wrist carpal tunnel syndrome is granted. 7. Entitlement to service connection for low back pain is granted. The Veteran asserts that service connection for low back pain is warranted. During the hearing, the Veteran testified that she has back pain that causes functional loss that impacts her work. She specifically testified that her back pain limits prolonged standing or sitting. See hearing transcript at 11. The Veteran is a graphic designer and she needs work accommodations due to her back pain. Id. That is, she requires ergonomic style equipment floor mats and seating to manage her back pain. In the July 2017 VA Form 9, the Veteran described having difficulty dressing herself and participating in family activities because of the chronic back pain. Treatment records are replete with notations of chronic low back pain, or myofascial pain. In November 2011, very close in time to filing her claim for service connection, private treatment record show the Veteran was evaluated for chronic lumbar back pain to see if she could stay in the Reserves. Her occupation was "work in supplies and logistics requires heavy labor lifting daily from 5 to 65 pounds." A 2019 record shows the Veteran continued to be on a permanent profile with restrictions on standing, lifting/carrying, sit-ups, and running due in part to chronic low back pain. The Board finds that the Veteran's credible statements paired with this evidence are sufficient to establish a current disability manifested by back pain that causes functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Moreover, VA treatment records from February 2015 reflect diagnosis of myofascial pain of the lower back. Thus, the first element of a service connection claim is satisfied. As to the second element, the Veteran testified that she injured her back during basic training in service. See hearing transcript at 3. Review of her service treatment records reflect that she sought treatment for back pain after her injury in November 2001. The Veteran further testified that her back pain continued throughout the years since the initial injury in service. She says that she treats the pain with over the counter medication and heat pads. Id. at 4. The Veteran's private and VA treatment records reflect that she continued to seek treatment for lower back pain after she left active service. In fact, VA primary care follow-up note from April 2005, less than a year after the end of her active service, shows that she sought treatment for lower back pain. At that time, she reported that her pain started after her injury in service. In February 2009, the Veteran again sought treatment for low back pain and reported that her pain started after an injury she sustained in service when she fell backwards when attempting to jump logs on an obstacle course. She explained that she has "difficulty with running walking sit-ups, [and] lifting." See February 2009 Harris health system progress note. In a December 2008 letter, the Veteran's treating physician wrote that the Veteran is unable to return to work because she is unable to run, walk, bend, or stoop repeatedly or lift over 20lbs. An evaluation from January 2009 found that the Veteran had significant physical limitations due to her back pain. In August 2009, while the Veteran was in the reserves, she received permanent profile and the Physical Review Board found that she did not meet medical retention standards, in part, due to physical limitation caused by her back pain that started after her injury during basic training. VA treatment records from February 2011 and February 2012 reflect that the Veteran continued to report chronic back pain that has been there since 2001. Similarly, private treatment records from November and December 2011 also reflect that the Veteran had chronic back pain since her injury doing an obstacle course during active service. The Veteran underwent a VA examination in August 2012. Although the examiner did not diagnose a back disability at the time, the examination report shows that the Veteran had chronic back pain. Similarly, the Veteran reported back pain, which had its onset in service during her treatments in September 2014, February 2015, and March 2015. Overall, the Veteran is competent to report that she experienced back pain since service. Her testimony is supported by the medical evidence of record that shows that she continued to seek treatment for back pain after her separation from active service. Thus, her testimony is entitled to probative weight. Combined with the post-active service medical records, her testimony is sufficient to establish continuity of her back pain since its onset in service. Considering the totality of the evidence of record in light most favorable to the Veteran and resolving reasonable doubt in her favor, the Board finds that the Veteran's back pain had its onset while in service. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for back pain is granted. 8. Entitlement to service connection for hypertension is granted. The Veteran contends that service connection for hypertension is warranted. Certain chronic diseases, including hypertension, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101 , 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of hypertension. See September 2017 Clinical Pharmacy Note. Thus, the first element of a service connection claim is satisfied. The Veteran testified that she was diagnosed with hypertension while she was on active duty. See hearing transcript at 16. Her service treatment records are consistent with her testimony and reflect diagnosis of hypertension in August 2004. The Veteran left active service shortly thereafter. She credibly testified that she continuously took medication for high blood pressure following her separation from active service. See hearing transcript at 18. In her substantive appeal, filed in July 2017, the Veteran explained that her hypertension never went away after her diagnosis in service. The competent and credible statements are probative in establishing continuity of symptomatology of her hypertension. Moreover, the presumption at 38 C.F.R. 3.309(a) applies, as hypertension was diagnosed both in service and during the appeal period. Thus, her hypertension had its onset in service and continued after her separation from active service. Accordingly, entitlement to service connection for hypertension is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.