Citation Nr: 21014282 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 09-41 557 DATE: March 11, 2021 ORDER Entitlement to service connection for carpal tunnel syndrome of the right wrist is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s carpal tunnel syndrome of the right wrist was not present during active duty, manifest to a compensable degree within one year of separation, continuity of symptomatology is not established, and the most probative evidence of record demonstrates that the current carpal tunnel syndrome is not causally related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for carpal tunnel syndrome of the right wrist have not been met. 38 U.S.C. §§ 1131; 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1980 to December 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2009, April 2014, and February 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for carpal tunnel syndrome of the right wrist, entitlement to TDIU, and service connection for a lumbar spine disability because the evidence submitted was not new and material, respectively. In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In an August 2017 Board decision, the Board, inter alia, denied service connection for carpal tunnel syndrome of the right wrist. The Veteran appealed the August 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA’s General Counsel filed a joint motion for partial remand. In September 2018, the Court granted the parties’ motion, vacated the portion of the August 2017 Board decision that denied entitlement to service connection for carpal tunnel syndrome of the right wrist and remanded the matter for actions consistent with the joint motion for partial remand. In February 2019, the Board remanded the claim for an addendum medical opinion, pursuant to the Joint Motion which found that the January 2015 examiner’s opinion was not supported by an adequate rationale. In a July 2018 Board decision, the Board found that new and material evidence had been received to reopen the previously denied claim of entitlement to service connection for a lumbar spine disability, denied service connection for a lumbar spine disability, and remanded entitlement to TDIU for additional development. The Veteran appealed the July 2018 Board decision to the Court. In an August 2019 Memorandum Decision, the Court vacated the portion of the Board’s July 2018 decision denying service connection for a lumbar spine disability and remanded the matter for proceedings consistent with the Court’s decision. This matter was most recently before the Board in April 2020. At that time, the Board remanded the Veteran’ service connection claims for carpal tunnel syndrome of the right wrist and a lumbar spine disability for further evidentiary development. In addition, the Board remanded the TDIU claim as inextricably intertwined. 1. Entitlement to service connection for carpal tunnel syndrome of the right wrist is denied. The Veteran contends that her carpal tunnel syndrome of the right wrist was incurred in service and has gotten progressively worse. See October 2009 VA Form 9. The Veteran’s service treatment records (STRs) show that she was treated for her left wrist during active service. Her STRs do not state that she received treatment for, or complained of, her right wrist. Her September 1983 military separation medical examination shows that examination of all body systems was normal at that time, including her right upper extremity and neurological system. Moreover, on a report of medical history completed in connection with that examination, the Veteran specifically denied having or ever having had swollen or painful joints, broken bones, arthritis, rheumatism, or bursitis. There is no contemporaneous evidence of right wrist complaints until 1987, unlike the left wrist, which was complained about and treated during service. The Veteran, more recently, has contended that she experienced right wrist problems in the early 1980s, and began experiencing pain in her right wrist after having her left wrist treated during service. She has also argued that, because she did not do much with her right wrist between separation from service and 1987, and was not working during that time, her right wrist disability must be caused by her active service. The Veteran was afforded a VA examination in January 2015. The medical evidence noted by the examiner indicated that the Veteran experienced symptoms of carpal tunnel syndrome and positive clinical findings well before her diagnosis in December 1991. After examination of the Veteran, the examiner provided a one-sentence notation that the Veteran’s “right wrist carpal tunnel syndrome is a new and separate condition that was not diagnosed until 12/16/91.” The examiner, however, did not provide an etiological opinion as to whether the Veteran’s right wrist condition was related to service. In a June 2019 VA medical opinion obtained pursuant to the Board’s February 2019 remand, the examiner determined that the Veteran’s current carpal tunnel syndrome of the right wrist was less likely than not causally related to active service. The examiner opined in pertinent part, This Patient was discharged from the military 12-2-83. A review of the STR shows that during military service this Patient had nonspecific symptom of left hand pain 1-3-83 that was diagnosed as strain. There was no documentation of a right or left carpal tunnel syndrome during military service. This Patient did not complain or document on the separation Report of Medical History dated 9-16-83 a right or left hand/wrist condition of carpal tunnel syndrome. There is no documented treatment or evidence of complaint during the 12 months immediately after military separation. There is no evidence of reported or ongoing symptoms during the year after separation. A review of Deferred date of rating: 8/29/2013 in VBMS shows that this Patient did have bilateral carpal tunnel syndrome during military service. She had pain in the left hand (this was not suggestive of carpal tunnel syndrome). There is no evidence to support a chronic condition related to military service. Therefore a nexus linking the current condition directly to military service cannot be established. Pursuant to the Board’s April 2020 remand instructions, an addendum medical opinion was obtained in June 2020. After a review of the claims file, the examiner offered a negative etiological opinion regarding the Veteran’s right wrist. The examiner opined, [R]ight CTS [carpal tunnel syndrome] is only present in the objective medical record 2008-09ish with + EMG bilaterally in 2009. [T]he notes of 1987, 1990, 91 are post a gap of 4 years post service. MOS noted. [J]obs post service were pizza and moving companies. 05, 08 in the record . . . STRs and ETS are silent for such a right CTS claim. [N]europathy for breast cancer noted. Another VA medical opinion was obtained in September 2020. After reviewing the claims file, the examiner rendered a negative etiological opinion regarding the Veteran’s right wrist. The examiner opined in pertinent part, The Veteran separated from service 12/83. There [are] no STRs of right wrist or hand pain that could indicate early carpal tunnel syndrome during service (left only 1/3/83). The 9/16/83 Separation Exam is similarly silent for related complaints and there is no documented complaints or treatment in the 12 months following separation. While additional evidence was found which occurred prior to the previously reported 1991 onset this still did not occur until 3/11/87, which was more than 4 years following separation from service. There is no further suggestive objective evidence in remaining clinical documentations to include 12/1990 and 12/1991 service clinical records and 8/2013 Exam Report as well as Veteran lay statements, Veteran spouse lay statement and 5/2017 Hearing Testimony. An addendum to the June 2020 medical opinion was provided in November 2020. After a review of the claims file, the examiner opined the following: NO direct nexus for the right CTS exists. [O]nly NOS vague left hand issue in STR and felt to be acute. [A]nd again silent ETS exam . . . STRs are silent for CTS during those years. [T]hen in 1991 onset seems apropos . . . ETS exam honorably is silent for any wrist CTS symptom[,] sign[,] or dx. [P]ost service work with labor, pizza noted. [O]nset right CTS is years post service and not within one year . . . After considering the record in its entirety, the Board concludes that the preponderance of the evidence is against the claim. As set forth above, the Veteran’s service treatment records are entirely negative for any indication that a right wrist disability, to include carpal tunnel syndrome, had its inception during active duty. Again, all body systems were examined at separation and determined to be normal at that time and the Veteran denied having, or ever having had, swollen or painful joints, broken bones, arthritis, rheumatism, or bursitis. The Board has considered the Veteran’s contention that she experienced right wrist problems in the early 1980s, and began experiencing pain in her right wrist after having her left wrist treated during service. The Board, however, finds that the most probative evidence of record does not reflect that she experienced right wrist problems or symptoms during active duty. As set forth above, the Veteran’s STRs show that she was treated for her left wrist during active service. Her STRs, however, do not state that she received treatment for, or complained of, her right wrist. The Board finds that had the Veteran, in fact, been experiencing right wrist symptoms during service, she would have reported it in clinical settings when she was seeking treatment for other disabilities, particularly the left hand and wrist. Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J. concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1303 (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). This conclusion is strengthened by the fact that at her September 1983 military separation medical examination, the Veteran specifically denied having or ever having had swollen or painful joints, broken bones, arthritis, rheumatism, or bursitis. Moreover, her upper extremities were examined and determined to be normal, establishing that carpal tunnel syndrome of the right wrist was not present at that time. The Board assigns more probative weight to the contemporaneous evidence of record than to the Veteran’s recollections decades after service separation. Although the most probative evidence establishes that the Veteran’s carpal tunnel syndrome of the right wrist did not have its inception during active duty, service connection may nonetheless be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, however, the Board finds that there is no indication that the Veteran’s carpal tunnel syndrome of the right wrist is causally related to her active service. In that regard, the Board assigns great probative weight to the September 2020 medical opinion, as the examiner rendered his opinion after in-depth review of the Veteran’s medical records and provided a reasoned conclusion and detailed rationale. There is no medical opinion evidence to the contrary. The Board assigns less probative weight to the January 2015 VA examination which was found to be inadequate in the February 2019 Board remand to the extent the examiner failed to provide an etiological opinion. The Board also assigns less probative weight to the June 2019 medical opinion which was found to be inadequate in the April 2020 remand to the extent that the rationale was internally inconsistent. In addition, the Board assigns less probative weight to the June and November 2020 medical opinions, as both opinions were based on an inaccurate factual premise, namely that the onset of the Veteran’s carpal tunnel syndrome of the right wrist did not occur prior to 1991. The Board also assigns less probative weight to the Veteran’s statements. Although the Veteran contends that her current carpal tunnel syndrome of the right wrist was incurred in service, the Board finds that she is not competent to determine the etiology of her symptoms or current disability as this would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. In summary, the Board finds that the preponderance of the evidence establishes that the Veteran’s current carpal tunnel syndrome of the right wrist did not have its onset during active duty, was not manifest to a compensable degree within one year of separation, continuity of symptomatology is not established, and the record contains no indication that it is otherwise causally related to an in-service disease or injury. In addition, the record contains no indication, nor has it been contended, that the Veteran’s current carpal tunnel syndrome of the right wrist is causally related to or aggravated by a service-connected disability. For these reasons, the Board concludes that the preponderance of the evidence is against the claim and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that she initially sustained a lumbar spine injury during active service in June 1982 and that she has been experiencing ongoing and progressing symptoms since that time. In further support of her claim, she reports that her basic training required her to carry approximately 65 pounds and to lift loads from 50 to 75 pounds on a regular basis over a nine-week period. See e.g. October 2009 VA Form 9. Service treatment records (STRs) indicate complaints and treatment for back pain. In January 1981, the Veteran sought treatment complaining of back pain that had been ongoing for two weeks. Her injury was diagnosed as a muscle strain. The Veteran was treated again during service in June 1982 for complaints of low back pain. She first noticed those symptoms while sneezing. An examination at that time was positive for decreased lumbosacral motion. It was noted that the Veteran had been given medication previously for the same problem with no relief of pain. In January 1983, the Veteran returned for further treatment complaining of ongoing back pain which reportedly persisted while bending and walking. Examination revealed pain that was present on the right side of the lumbar spine area. The Veteran was diagnosed with muscle spasms and treated with muscle relaxants. See January 24, 1981, June 24, 1982, January 21, 1983 STR entries. Pursuant to the Board’s April 2020 remand instructions, an addendum medical opinion was obtained in June 2020. After reviewing the claims file, the examiner rendered a negative etiological opinion regarding the Veteran’s lumbar spine. The examiner opined, MOS notable 1980-83. [J]obs post service appear to be manual labor[,] moving companies[,] etc. . . . and pizza restaurant. [O]nset and chronic dx [diagnosis] is only seen in 1994ish and not in 83=NOS and not significant then . . . until ’86 . . . then for chronic 1994, 1995 . . . from post service events likely . . . An addendum to the June 2020 medical opinion was provided in November 2020. After a review of the claims file, the examiner provided the following opinion, L spine is acute in 1981-2 weeks[.] 6/82 and 1/83 AND then ETS exam 9/1983 is a large negative for such a direct claim. [H]x of manual labor and one month of low back pain 1994 appears to be etiology . . . setting off the 95 episode. ETS exam honorably is silent for back issue symptom[,] sign[,] or dx. [C]urrent L spine dx can only plausibly be due to post service events . . . The Board finds that the medical opinions are inadequate. In that regard, the June 2020 examiner failed to address multiple notations of back pain in the Veteran’s STRs. Additionally, the examiner failed to consider the Veteran’s lay statements, as well as a statement from her ex-spouse, K.S., regarding the onset and nature of her back pain as directed in the Board’s April 2020 remand. With regard to the November 2020 medical opinion, although the examiner noted that he reviewed “ex spouse and lay data,” he failed to consider such in his rationale. While the Board greatly regrets further delay, additional remand is required for full compliance with the Board’s previous remand instructions. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 2. Entitlement to TDIU due to service-connected disabilities is remanded. As resolution of the claim of entitlement to service connection for a lumbar spine disability may have an impact on the Veteran’s claim of entitlement to TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Accordingly, the matters are REMANDED for the following action: 1. Obtain an addendum medical opinion addressing the nature and etiology of the Veteran’s current lumbar spine disability. Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the opinion. After reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not that the Veteran’s current lumbar spine disability had its inception during her period of active service, was manifest to a compensable degree within one year of separation, or is otherwise causally related to an in-service disease or injury, to include in-service complaints and treatment for back pain, as well as the Veteran’s reports of carrying heavy weights during active duty service? A complete explanation must be provided for any opinion offered. In providing the requested opinion, the examiner should consider the relevant evidence of record, to include the Veteran’s service treatment records, the September 1983 separation examination, post-service clinical records, including those dated in 1986, 1994 and 1995, as well as the statement from the Veteran’s ex-spouse, K.S., received May 2014, and the Veteran’s lay statements. 2. After the development has been completed, readjudicate the claim for service connection for a lumbar spine disability and entitlement to TDIU. If any benefit sought on appeal remains denied, furnish the Veteran and her representative a supplemental statement of the case (SSOC) and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration, if in order. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.