Citation Nr: 21007320 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-26 978 DATE: February 9, 2021 ORDER Entitlement to service connection for a right wrist disability, diagnosed as carpal tunnel syndrome (CTS), is granted. REMANDED Entitlement to service connection for diabetes is remanded. FINDING OF FACT The Veteran’s right wrist CTS manifested to a compensable degree within one year of his separation from service and is not attributable to intercurrent causes. CONCLUSION OF LAW The criteria for entitlement to service connection for a right wrist disability, diagnosed as CTS, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1986 to May 2006. The Board remanded the claims currently on appeal in August 2018 and August 2019 for additional development. They have now returned to the Board for further appellate proceedings. Service Connection Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). CTS, an organic disease of the nervous system, has been interpreted as such a disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309(a)). 1. Right Wrist The Veteran contends he is entitled to service connection for a right wrist disability. The Veteran has a current diagnosis of CTS of the right wrist. See February 2019 VA examination report; see also March 2007 Dr. C.M.K. treatment records. At his October 2005 retirement examination, the Veteran noted pain in his right wrist, describing it as “a sharp pain through the whole hand and give [sic] way when I move or lift heavy objects.” See October 2005 retirement examination report. Importantly, the Board notes that the Veteran’s current right wrist CTS, an organic disease of the nervous system, was diagnosed in March 2007, during the applicable presumptive period. 38 C.F.R. §§ 3.303 (b), 3.309 (a). See March 2007 Dr. C.M.K. treatment records. At the time of his March 2007 diagnosis, he complained of wrist pain and was prescribed pain medication and a wrist splint. Id. Further, the Veteran exhibited abnormal, or outside the normal range, measurements regarding his right wrist during his December 2019 VA examination. See December 2019 VA examination report. While the Veteran was not diagnosed with CTS during service, treatment records establish that his CTS manifested to a compensable degree in March 2007, within the applicable one-year presumptive period. See March 2007 Dr. C.M.K. treatment records; see also 38 C.F.R. § 4.124a, Diagnostic Code 8515. Notably, the AOJ and the December 2019 VA examiner stated that the Veteran injured his wrist in 2007. Upon review of the treatment records surrounding the accident in question, the Board concludes that the Veteran injured his shoulder while carrying a ladder during a work training. See March 2007 Dr. C.M.K. treatment records. At that same appointment, he further explained that he also has pain in his wrist, but not that his wrist itself was injured in the work accident. Id. Therefore, the Board finds that there has been no evidence of an intercurrent cause for the Veteran’s CTS of the right wrist. Accordingly, the Board finds that the Veteran was diagnosed with CTS, a disease enumerated in 38 C.F.R. § 3.309 (a), within a year after separation from service that manifested to a compensable degree. See 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Veteran has met the criteria necessary to enjoy the presumption of service connection. Therefore, the criteria for service connection for a right wrist disability, diagnosed as CTS, manifesting to a compensable degree within one year after separation from service has been met, and the claim is granted. See 38 C.F.R. §§ 3.102, 3.307, 3.309; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57. REASONS FOR REMAND 1. Diabetes The Veteran generally contends that his diabetes is caused by his service-connected disabilities, which have caused weight gain and decreased physical activity, which in turn caused or aggravated his diabetes. He further contends that there is a relationship between his post-traumatic stress disorder (PTSD) and the associated sleep impairment and his diabetes. See April 2018 representative brief. In August 2019, Board remanded this issue for a new medical opinion to address both contentions. Ultimately, a September 2020 opinion was produced. Unfortunately, the Board finds that this opinion is inadequate. While the September 2020 examiner stated that obesity and inactivity can increase the risk for diabetes, he stated that they cannot be shown to have causality for diabetes. In rendering this opinion, he reasoned that there has been no “causal or permanent aggravation” of the Veteran’s diabetes, and that “a permanent aggravation is not shown” in the Veteran’s file. See September 2020 VA opinion. (emphasis added). Pursuant to a recent decision of the Court of Appeals for Veterans Claims, “any incremental increase in disability and any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence” constitutes aggravation. Ward v. Wilkie, 31 Vet. App. 233 (2019). A showing of permanent aggravation or worsening of a non-service-connected disability is not required. Given that the September 2020 examiner used an improper definition of “aggravation” in his opinion, remand is warranted to adequately address the nature and etiology of the Veteran’s diabetes. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his diabetes that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After completing directive #1 above, obtain an opinion from an appropriately qualified VA clinician to determine the nature and etiology of the Veteran’s diabetes. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. The opinions must include a notation that this record review took place. It is up to the discretion of the reviewing clinician whether a physical examination of the Veteran is needed to answer the questions below. The reviewing clinician should answer the following: (a.) Is it at least as likely as not that the Veteran’s diabetes was caused OR aggravated by inactivity, due to the Veteran’s service-connected physical disabilities, including the knee and shoulder disabilities, to include resulting obesity? (b.) Is it at least as likely as not that the Veteran’s diabetes was caused OR aggravated by sleep impairment related to the Veteran’s service-connected PTSD with insomnia disorder and/or sleep apnea, to include resulting obesity? Aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to identify the baseline level of the disability that existed before aggravation occurred. Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non-service-connected disability is not required. See Ward v. Wilkie, No. 16-2157, 17-1204 (Vet. App. 2019). In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing directives #1-2 above to the extent possible, readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.