Citation Nr: 21014846 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-23 981A DATE: March 15, 2021 ORDER Service connection for bilateral carpal tunnel syndrome is granted. REMANDED Entitlement to a rating in excess of 10 percent prior to May 20, 2010, for a right knee disability is remanded. FINDING OF FACT The competent and probative evidence is at least in equipoise that the Veteran’s bilateral carpal tunnel syndrome is related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral carpal tunnel syndrome are 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 September 1972 to September 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2008 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in July 2015, at which time it was remanded for further development, as discussed below. The Board finds that the remand directives were not substantially complied with the claim for an increased rating for a right knee disability and thus another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).   When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for bilateral carpal tunnel syndrome. The Veteran contends that his bilateral carpal tunnel syndrome is due to using heavy typewriter equipment as a radio-teletype operator for approximately 12 to 13 years during active service. The military personnel records reveal the Veteran’s military occupational specialty as satellite/microwave systems chief. 02/24/2016, Certificate of Release. Additionally, the service treatment records reveal complaints of finger and knuckle pain in the right hand in September 1995. 02/24/2016, STR – Medical, page 1. An October 2011 VA examination noted a diagnosis of carpal tunnel syndrome in a mild stage of severity. However, the examiner did not opine as to the etiology of the condition. 11/23/2012, VA Examination. A July 2015 Board decision found the October 2011 VA examination to be inadequate due to lack of an etiology opinion. In relevant part, the Board remanded the claim of service connection for bilateral carpal tunnel syndrome and directed the Agency of Original Jurisdiction (AOJ) to obtain outstanding treatment records and schedule the Veteran for a VA examination to determine the nature and etiology of the condition. 07/21/2015, BVA Decision. A May 2016 VA examination noted a diagnosis of bilateral carpal tunnel syndrome, with treatment records reporting the condition as early as August 2009. The examiner opined that the condition is less likely than not related to the Veteran’s period of active service. The examiner’s opinion is largely based on the purported lack of an evaluation for carpal tunnel syndrome in the service treatment records. Further, the rationale is limited in scope as to whether the onset of the condition occurred during active service. Nonetheless, the examiner remarked on the Veteran’s history of using a non-ergonomic heavy typewriter for approximately 12 years during active service. And, the examiner indicated that the typewriter aggravated his carpal tunnel and did not present until later. 05/26/2016, C&P Exam; 05/26/2016, C&P Exam (medical opinion). The Board finds the evidence is at least in equipoise regarding whether the current bilateral carpal tunnel syndrome is related to the Veteran’s period of active service. Despite the negative opinion, the Board places probative weight on the May 2016 VA examination, which acknowledged the Veteran’s history of using a non-ergonomic heavy typewriter and indicated that it contributed to his carpal tunnel, which did not present until after separation from active service. The Board places less probative weight on the negative opinion contained within the May 2016 VA examination, as the examiner relies on an incorrect premise that the Veteran did not complain of any issues with his hands and fingers during active service. See 02/24/2016, STR – Medical, page 1. As such, with resolution of doubt in the Veteran’s favor, the Board finds that service connection for bilateral carpal tunnel syndrome is warranted. 38 C.F.R. § 3.303. REASONS FOR REMAND 2. Entitlement to a rating in excess of 10 percent prior to May 20, 2010, for a right knee disability is remanded. A July 2015 Board decision remanded the issue of entitlement to a rating in excess of 10 percent prior to May 20, 2010, and directed the AOJ to obtain outstanding federal treatment records unless further efforts to obtain those records would be futile, wherein a formal finding of unavailability should be noted in the record. Additionally, the AOJ was directed to request the Veteran provide necessary authorizations to obtain relevant private treatment records and make two attempts to obtain any private records identified, unless the first attempt demonstrates that future attempts would be futile. If the private records are identified but not obtained, the RO must inform the Veteran of the records sought, steps taken to obtain the records, that the claim would be adjudicated based on records available, and the claim would be readjudicated if the records are later obtained. 07/21/2015, BVA Decision Subsequently, the AOJ incorporated federal and private treatment records into the claims file, and also apprised the Veteran of efforts to obtain identified outstanding records. 05/24/2019, Correspondence. The obtained treatment records include, in relevant part, a January 2008 treatment noting a diagnosis of right knee osteoarthritis, manifesting in a range of motion between 5 and 130 degrees, as well as symptoms of effusion and pain on crepitus. 06/07/2019, Medical Treatment Record. A June 2008 evaluation also reveals that the Veteran was having issues with his anterior cruciate ligament and degenerative arthritis of the right knee, as well as meniscus/semilunar cartilage issues. 07/18/2008, VA Examination, pages 15-23. The Board notes that dislocated semilunar cartilage with frequent episodes locking, pain, and effusion into the joint would warrant a rating of at least 20 percent. And, the treatment records indicate the Veteran exhibited symptoms of effusion and had semilunar cartilage issues in 2008. However, the available treatment records are unclear as to whether the Veteran’s right knee disability manifested in a severity warranting a rating in excess of 10 percent prior to May 20, 2010. Accordingly, the Board finds that a medical opinion as to the severity of the Veteran’s right knee disability prior to May 20, 2010, is needed before an adjudication on the merits. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records.   2. After completing directive #1, obtain a medical opinion from an appropriate clinician to determine the severity of the right knee disability prior to May 20, 2010, in accordance with the latest worksheet. The clinician is to review the virtual file, including a copy of this Remand. An in-person examination is not required unless deemed necessary by the clinician. Additionally, based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran’s condition manifested in dislocated semilunar cartilage with frequent episodes locking, pain, and effusion into the joint. (Continued on the next page)   A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.