Citation Nr: 21010349 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 10-22 789 DATE: February 24, 2021 ORDER Entitlement to service connection for bilateral carpal tunnel syndrome (left and right wrist disability) is denied. REMANDED Entitlement to service connection for prostate cancer, to include as due to exposure to an herbicide agent and/or ionizing radiation, is remanded. FINDINGS OF FACT 1. The Veteran's service treatment records (STRs) are unremarkable for complaints referable to his wrists, including of carpal tunnel syndrome; there also is no clinical evidence of complaints of findings of carpal tunnel syndrome for more than three decades after his separation from service. 2. Moreover, the most probative (meaning most competent and credible) evidence is against finding that he had carpal tunnel syndrome during his service, or within a year of separating from service, or that it is otherwise etiologically related or attributable to his service, including to his work as a dental technician. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral carpal tunnel syndrome. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September1973 to September 1976. This appeal to the Board of Veterans’ Appeals (Board) is from an April 2009 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). These claims were previously before the Board in June 2015 and April 2020 but remanded for further development and consideration – including obtaining medical nexus opinions regarding the origins of these claimed disabilities and for more information regarding the Veteran’s alleged exposure to an herbicide agent and/or ionizing radiation during his service. There since has been compliance – certainly the acceptable substantial compliance, with the directives pertaining to the claim of entitlement to service connection for carpal tunnel syndrome (CTS). See Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Consequently, the Board is going ahead and deciding the claim for CTS. However, the Board regrettably must again remand the claim for prostate cancer since still more development of this other claim is required.   1. Entitlement to service connection for bilateral CTS The Veteran contends that he has CTS from repetitive movements while serving as a dental technician in service. He also contends that he first noticed this shortly after leaving service. See March 2012 DRO Informal Conference Report. His DD Form 214 confirms his military occupational specialty (MOS) was dental technician, but his service treatment records (STRs) are entirely unremarkable for complaints referable to his wrists or of a diagnosis of CTS. He separated from service in September 1976. Moreover, his contentions notwithstanding, there are no clinical records in the next three decades noting any complaints of CTS. The Veteran has contended that he was first diagnosed with CTS in 1986. See 2016 Disability Benefits Questionnaire (DBQ). But even if the Board was to assume – for the sake of argument, that is true, that still was some 10 years after his military service ended. And, ultimately, the Board finds this assertion less than credible given the record as a whole. To the extent the Veteran is asserting continuity of symptomatology since service, his statements are inconsistent with the contemporaneous evidence of record in the years of his service and even in the decades after conclusion of his service. In making this lack of credibility finding, the Board is not necessarily finding that the Veteran has any intent to deceive. Rather, he may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred many years ago. Any clinical opinion based on the notion of continuity of symptoms since service, consequently, would lack probative value inasmuch as continuity of symptoms since service has not been credibly shown. 38 C.F.R. § 3.303(b). See also Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Records dated in 1985, after the Veteran injured his left ankle, note that his general health was good, that he had had no serious illness or injuries in the past, and that he had no previous operative procedures. Private records dated in 1987 indicated he injured two fingers on a piece of machinery. Private clinical records from 1991 to 2002 for physicals and/or complaints show the following: sinusitis, pulled muscle in the groin, stuffy head, severe headache, cough with cold, headache with vomiting and chest pain, poison ivy reaction, mildly elevated cholesterol, that he was taking Zantac, that he was mildly obese, fractured his leg after receiving a direct blow playing softball, and that he used tobacco. These record conversely are entirely unremarkable for any complaints of CTS or complaints or impairment of any sort referable to either wrist. The Veteran’s June 2001 record to establish care at the Somerset VA clinic shows that his primary complaint was regarding his vision. He was noted to have a prior medical history of left knee surgery. He was also noted to have gastroesophageal reflux disease (GERD), high blood pressure that day, and chronic knee pain. This record is unremarkable for any complaints or findings referable to his wrists or of CTS, specifically. In January 2005 correspondence, the Veteran reported to VA that he has, or had, high blood pressure, high cholesterol, prostate cancer residuals, depression, an ulcer, a left knee abscess, left knee surgery, left ankle surgery, arthritis of his back, poor eye sight, poor hearing, shortness of breath, and skin cancer. He did not mention any CTS or complaints referable to either wrist. A May 2006 Scott County Hospital Cardiac Consultation lists a past medical history of hypertension, hyperlipidemia, GERD, peptic ulcer disease (PUD), prostate cancer, prostate surgery, left ankle surgery, and left knee surgery. This record is unremarkable for suggestion of CTS or complaints involving either wrist. If, as he now claims, the Veteran had been experiencing CTS since his service, or certainly at some point in the three decades since his service, it stands to reason he would have reported this to his treating clinicians and/or in the January 2005 correspondence as he was reporting so many other ailments. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). That long a lapse of time between his separation from service and the earliest documentation of the now claimed disability is a factor for consideration in deciding his claim of entitlement to service connection and tends to refute the notion that he has had CTS since his service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).   It is true the mere absence of evidence, such as during those many intervening years (in fact, 30 years), does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Federal Circuit Court also has held however that, while the absence of contemporaneous records (such as treatment records) does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). The earliest evidence of record of CTS is not until 2007. An August 2007 VA clinical record notes that the Veteran was seen for a routine check-up and his “only new complaint being numbness in the right upper extremity”; he was assessed with probable CTS. The Board finds that the term “new” indicates a then recent onset, and certainly since the 2001 visit to establish care. A September 2007 VA neurology electromyograph/nerve conduction velocity (EMG/NCV) test revealed compression of the median nerve in both wrists (i.e., CTS). The June 2016 DBQ contains the opinion of the examiner that there was no evidence of CTS in service and, assuming the Veteran had CTS diagnosed in 1986, it is less likely than not he would have developed CTS 10 years after his service. Therefore, it is less likely than not that his current CTS is due to his service.   A more recent May 2020 DBQ clarifies that there are no notes from the 1980s reflecting CTS, no evidence of CTS in service, and that, even if the Veteran had complaints in service, it is unlikely he had spontaneous resolution of CTS in service and then an onset in the 1980s. The examiner also noted that the earliest documented diagnosis is in 2007, and that it is less likely as not related to service, to include the Veteran’s work as a dental hygienist. The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his bilateral CTS, including in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). In sum, the Veteran’s STRs are unremarkable for complaints of CTS, also of a diagnosis of this condition, and there are no records of CTS for three decades after his separation from service, no credible evidence of continuity of symptoms since his service, his complaint in 2007 was described as a then “new” complaint, and the clinical opinions are against any relationship or correlation (“nexus”) between this condition and his service. For these reasons and bases, service connection is not warranted. And, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).   REASONS FOR REMAND 2. Entitlement to service connection for prostate cancer is again remanded The Veteran has offered two theories as to the etiology of his prostate cancer: 1) that it is due to exposure to herbicides or 2) that it is due to exposure to ionizing radiation. June 2020 electronic receipt of the “Blue Water Navy Ship Locator Dashboard” indicates the ship to which the Veteran was assigned in service, the USS McDonnell, did not navigate within a 12 nautical mile radius off the coast of Vietnam. Thus, it cannot be presumed the Veteran was exposed to an herbicide agent while serving on that ship. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) In the most recent April 2020 remand, the Board directed that, if the Agency of Original Jurisdiction (AOJ) could not confirm the Veteran served within the 12 nautical mile territorial sea of Vietnam during the relevant presumptive period, the AOJ should contact him and ask him to submit details regarding his work as a dental technician that, in turn, may assist in estimating the dose of ionizing radiation to which he was exposed. The Board also noted that the AOJ should not send him another Radiation Risk Activity Information Sheet (RRAIS) but, instead, should request the information by the simplest possible means. It does not appear, however, that the AOJ has requested the information pursuant to that April 2020 remand directive. The AOJ previously had sent the Veteran an RRAIS in 2016, but in response he reported difficulty completing the form, and then again in August 2017, which he did not return. Because the AOJ did not comply with the Board’s April 2020 remand instruction, another remand of this claim unfortunately is required. See Stegall v. West, 11 Vet. App. 268 (1998).   Accordingly, this claim is again REMANDED for the following still additional development and consideration: 1. Contact the Veteran and ask that he submit any details regarding his work as a dental technician that may assist in estimating the dose of ionizing radiation to which he was exposed, such as how long he worked as a dental technician, the approximate number of hours he worked per week, and the approximate number of x-rays he may have taken (per day and per week), etc. His response, if any, must be associated with the claims file. The AOJ should NOT send the Veteran another RRAIS, but rather should request the information by the simplest possible means (e.g., telephone call). 2. After completing this development, if the Veteran provides the requested information, undertake all other needed development to obtain a dose estimate and advisory medical opinion pursuant to the procedures set forth at 38C.F.R. §3.311. The information received must be associated with the claims file. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.