Citation Nr: 21077206 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-28 144 DATE: December 28, 2021 ORDER Entitlement to service connection for right ulnar nerve neuropathy, to include as due to service-connected right wrist tendonitis is denied. FINDING OF FACT The Veteran's right ulnar nerve neuropathy is not shown to be causally or etiologically related to any disease, injury, or incident in service, nor is it proximately due to or aggravated by her service-connected right wrist tendonitis. CONCLUSION OF LAW The criteria for entitlement to service connection for right ulnar nerve neuropathy, to include as secondary to service-connected right wrist tendonitis have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from June 1996 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, a June 2013 rating decision denied entitlement to service connection for a right wrist/hand disability and entitlement to service connection for right ulnar nerve neuropathy, among other issues not currently before the Board. The Veteran then filed a timely Notice of Disagreement (NOD). She was issued a statement of the case (SOC) in April 2017, and she filed a VA Form 9 in May 2017. Her claims were certified to the Board the following month. In a Board Decision from February 2019, the issues related to the right wrist and hand disability, as well as the right ulnar nerve neuropathy were both remanded for additional development. In September 2021, the Board remanded both claims again for additional development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following the most recent remand, a rating decision from October 2021 granted the Veteran's claim of entitlement to service connection for right hand/wrist tendonitis at a 10 percent disability rating, effective April 2011. As entitlement to service connection has been granted, that issue is no longer before the Board. The issue of entitlement to service connection for right ulnar nerve neuropathy, to include as secondary to the service-connected right wrist tendonitis was not granted and is therefore still on appeal before the Board. 1. Entitlement to service connection for right ulnar nerve neuropathy, to include as due to service-connected right wrist tendonitis. The Veteran has claimed that her right ulnar nerve neuropathy is due to her service-connected right wrist tendonitis disability. In the Veteran's June 2013 NOD, she wrote that her wrist pain had been diagnosed as tendonitis, and "it was later determined that the diagnosis turned out to be a compressed ulnar nerve." The Veteran is competent to report the symptoms she experiences, such as those associated with her right wrist area. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To begin, the Veteran has a current diagnosis. A February 2017 VA examination confirmed that the Veteran has a current diagnosis of right ulnar nerve neuropathy. A more recent VA examination from October 2021 confirmed the current diagnosis, writing that the Veteran had right wrist "cubital tunnel syndrome (ulnar neuropathy is another term for this condition)." As such, the Veteran's current diagnosis of right ulnar nerve neuropathy has been confirmed, and the first criteria for entitlement to service connection has been met. 38 C.F.R. § 3.310. Turning to the second criteria, as noted above, the Veteran was granted entitlement to service connection for right wrist tendonitis at a 10 percent disability rating, effective April 2011. As such, the Veteran has a service-connected disability, and she has met the second criteria for entitlement to service connection. 38 C.F.R. § 3.310. Turning to the final criteria, there must be evidence that the right ulnar nerve neuropathy is either proximately due to or the result of the right hand/wrist tendonitis, or aggravated (increased in severity) beyond its natural progress by the right hand/wrist tendonitis. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As discussed above, the Veteran's claim was previously before the Board in February 2019, where the claim was remanded. In brief, the previous claim for entitlement to service connection for the right hand/wrist disability was remanded for an etiological opinion. The right ulnar nerve neuropathy claim was remanded because it was inextricably intertwined with the right hand/wrist disability, as the Veteran had claimed the ulnar nerve neuropathy was secondary to her right hand/wrist disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The right ulnar nerve neuropathy claim was also remanded so that an opinion on secondary service connection could be rendered. That VA examination took place in October 2020; however the September 2021 Board Decision found that the October 2020 VA examination was inadequate. See further Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the claims were remanded again for another VA examination. That VA examination occurred in October 2021. The Board notes that it was from this examination that a positive etiological opinion was rendered regarding the Veteran's right hand/wrist tendonitis claim, and that claim was subsequently granted. The Veteran was seen in person, and her claims file was reviewed. The examiner confirmed the Veteran's right ulnar nerve neuropathy, and they noted that the Veteran's lay statements were considered. The examiner also discussed the Veteran's in-service right wrist/hand complaints from May 2002. The examiner then opined that The claimed ulnar neuropathy condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. I have reviewed the file and the remand letter. A nexus to service connection cannot be made at this time due to the missing elements of origin and chronicity of the current condition. Ulnar neuropathy has its source at the elbow where the nerve is entrapped as it traverses the medial epicondyle. It causes numbness and tingling but does not [cause] swelling of the hand or wrist. There's no evidence in the e-file that this condition was incurred in the serve despite the acknowledged reports of hand and wrist pain. Nor is there evidence it's related to the service ... No permanent residual or chronic disability is shown by the service medical records or demonstrated by evidence immediately following discharge from the service. Therefore, a nexus for service connection for the ulnar neuropathy condition cannot be made. The examiner continued to discuss that the source of the ulnar nerve disability is from the elbow and would therefore not be proximately due to the right hand/wrist tendonitis. They opined that There's no evidence in the e-file that this condition was incurred by the hand or wrist tendonitis. Ulnar neuropathy is due to overuse of the elbow in flexion/extension or supination/pronation and is unrelated to wrist or hand tendonitis. I found no evidence in medical literature linking these conditions. The examiner then provided a final opinion, which provided similar statements, but instead noted that it was less likely than not that the Veteran's ulnar nerve neuropathy was aggravated by the Veteran's service-connected right wrist tendonitis. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran's right ulnar nerve neuropathy is not proximately due to or aggravated by her service-connected right hand/wrist tendonitis. The Veteran has provided competent statements regarding her right wrist pain. She is currently diagnosed with right ulnar nerve neuropathy, and she has a currently-service-connected disability. As such, the first two criteria have been met. In September 2021 the Board found that the October 2020 VA examiner's opinion was inadequate, and as such, the Veteran's claim was remanded for a second time for a more thorough VA examination. That examination occurred in October 2021. The Veteran's claims file was reviewed, and her lay statements were noted. The examiner considered the Veteran's in-service hand/wrist injury but still provided a negative nexus opinion on a direct basis. The examiner then noted the Veteran's right ulnar nerve neuropathy and discussed how it was instead linked to overuse in the elbows for "flexion/extension or supination/pronation and is unrelated to wrist or hand tendonitis." It was from this detailed rationale that a negative nexus opinion was provided on a secondary basis. That opinion also addressed possible aggravation, and the Board has afforded that opinion significant probative weight. The Board also notes that no further etiological opinions, VA or private, have been associated with the claims file. As such, the Board finds that the right ulnar nerve neuropathy is not proximately due to or the result of the right hand/wrist tendonitis, nor is it aggravated (increased in severity) beyond its natural progress by the right hand/wrist tendonitis. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As such, the third and final criteria for entitlement to service connection has not been met. 38 C.F.R. § 3.310. In reaching this conclusion, the evidence persuasively stands against finding in favor of the claim in that it is not in "approximate balance" or "nearly equal" to the evidence that supports the claim. See Lynch v. McDonough, No. 20-2067 (Fed. Cir. 2021) (holding "evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other). Although the rule does not require that the evidence be in exact equipoise, there is still no doubt to resolve in the Veteran's favor. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran's claim is denied. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, Associate Counsel 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.