Citation Nr: 21021299 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 10-30 541 DATE: April 12, 2021 ORDER Entitlement to service connection for bilateral upper extremity neurologic symptoms is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral upper extremity neurologic symptoms began during active service or are otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral upper extremity neurologic symptoms are not met. 38 U.S.C. §§ 1101, 1110, 1131, 1117, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1990 to November 1991. This matter comes to the Board of Veterans’ Appeals (Board) from a December 2008 rating decision which, in pertinent part, denied entitlement to service connection for neurologic symptoms. In March 2020, the Veteran testified at the Regional Office (RO) before a Decision Review Officer (DRO) and in April 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. Transcripts of the hearings are of record. In November 2013, September 2016, August 2017, March 2019, and November 2020, the Board remanded the matter for further development, to include obtaining outstanding records and VA examinations and medical opinions. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under that statute and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021. The term Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. Under 38 C.F.R. § 3.317, a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Along with the three examples of a MUCMI provided by section 1117(a)(2)(B), CFS, fibromyalgia, and functional gastrointestinal disorder including irritable bowel syndrome (IBS), there is a list of signs or symptoms that may be a manifestation of an undiagnosed illness or a MUCMI that includes fatigue, gastrointestinal signs or symptoms, signs or symptoms involving the respiratory system, muscle pain, joint pain, and sleep disturbances. 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). The term “objective indications of a qualifying chronic disability” includes both “signs,” in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Although the Veteran is not medically trained, he is competent to report the observable manifestations of his claimed disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Hence, his own assertions may serve as support for the presence of symptoms. For purposes of Gulf War undiagnosed illness claims, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(2)(5). Entitlement to service connection for bilateral upper extremity neurologic symptoms. The Veteran contends that service connection is warranted for bilateral upper extremity neurologic symptoms. Specifically, the Veteran contends that he has bilateral upper extremity neurologic symptoms from manually twisting sticks while drilling as part of his military duties during service. The Veteran’s DD Form 214 indicates that his military occupational specialty was as a general construction equipment operator, and that he is a recipient of the Southwest Asia Service Medal and served in Southwest Asia from September 1990 to March 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). VA examination reports show the Veteran has diagnoses of right carpal tunnel syndrome and left cubital tunnel syndrome As the Veteran’s right carpal tunnel and left cubital tunnel syndromes are diagnosed conditions, they cannot be considered an undiagnosed illness, but they are eligible for consideration as a MUCMI. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2)(ii). September 2017 and December 2019 VA examination reports indicate that the Veteran’s right carpal tunnel and left cubital tunnel syndromes are due to nerve compression which is common with overuse and repetitive use, and that his right carpal tunnel and left cubital tunnel syndromes are diseases with a clear and specific etiology and diagnosis. Accordingly, as both the etiology and the pathophysiology of the Veteran’s right carpal tunnel and left cubital tunnel syndromes are fully understood, it is not considered a MUCMI and presumptive service connection is not warranted pursuant to 38 C.F.R. § 3.317. The next question for the Board is whether presumptive service connection pursuant to 38 C.F.R. §§ 3.309 is warranted for the Veteran’s right carpal tunnel and left cubital tunnel syndromes. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Board concludes that, while the Veteran has diagnoses of right carpal tunnel and left cubital tunnel syndromes, which are chronic diseases under 38 C.F.R. § 3.309(a) as an organic disease of the nervous system, they were not chronic in service; they did not manifest to a compensable degree within the presumptive period; and continuity of symptomatology is not established. VA treatment records show the Veteran was not diagnosed with right carpal tunnel and left cubital tunnel syndromes until April 2017, more than two decades after separation from service and years outside of the applicable presumptive period. Furthermore, the Veteran’s treatment records are silent for complaints of upper extremity neurologic symptoms until June 2007, more than two decades after separation from service, after an acute injury to his neck and shoulder and he reported symptoms lasting for a week. While the Veteran is competent to report experiencing symptoms such as tingling or numbness since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing neurologic symptoms on his September 1991 separation examination, and post-service treatment records are silent for complaints of upper extremity neurologic symptoms until July 2007, when he reported experiencing neck pain, right hand tingling, and right hand numbness for one week after a misstep one week earlier, years outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Service connection for right carpal tunnel and left cubital tunnel syndromes may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right carpal tunnel and left cubital tunnel syndromes and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records, including a September 1991 separation examination, are silent for complaints of or treatment for any bilateral upper extremity neurologic symptoms. Post-service treatment records reflect normal extremities upon examination in January 1992. Treatment records, which show complaints for other ailments, including low back pain, are silent for complaints of upper extremity neurologic symptoms until the Veteran complained of neck and shoulder pain after tripping and falling in June 2007 while digging a ditch. The Veteran was noted to be seeing his chiropractor with good relief until he tilted his head back in July 2007 and had increased pain in his neck and right-hand tingling and numbness. The Veteran was found to have cervical disc herniation and underwent spinal fusion in July 2007. A September 2008 Gulf War registry note reflects the Veteran reported a cervical herniated disc and bilateral hand/finger numbness which he had been told was related to his cervical disc herniation. During the March 2010 DRO hearing, the Veteran reported numbness in his right arm, thumb, and index finger. A June 2010 VA examination report reflects the Veteran’s complaints of tingling in his right thumb and index finger. Upon examination, the Veteran’s extremities were normal, but the examiner noted the June 2007 complaints of neck pain with radicular symptoms and indicated that this could explain the numbness in the Veteran’s right thumb and index fingers. VA treatment records dated in July, August, September, and November 2012, October and November 2013, and March 2014 show the Veteran denied numbness, burning, or tingling in his extremities and his extremities were normal upon examination. A March 2017 VA examination report reflects the Veteran reported bilateral upper extremity tingling and numbness, right greater than left. The examiner did not provide a diagnosis and indicated that an etiological opinion could not be provided as the Veteran had not had his complaints worked up by his primary care provider. In April 2017, the Veteran reported numbness in his right arm and wrist with burning pain and weakness radiating to his elbow for more than 15 years, or since service. The Veteran was diagnosed with possible carpal tunnel syndrome. An April 2017 EMG revealed right carpal tunnel syndrome and mild left ulnar tunnel syndrome. A September 2017 VA examiner indicated that carpal and ulnar tunnel syndromes are due to nerve compression which is common with overuse and repetitive use. While the examiner indicated that it would be speculative to state that these were related to the Veteran’s service, the examiner did not provide a rationale or basis for why an opinion could not be rendered. In December 2020, VA obtained an addendum medical opinion. After extensively reviewing the claims file, the examiner explained that if the Veteran had a condition related to nerve impingement or nerve compression, such as his diagnosed right carpal tunnel and left cubital tunnel syndromes, it would have manifested at the time of repetitive motion during service and would have persisted. The examiner further explained that carpal tunnel and other syndromes occur due to an injury and symptoms will be persistent after the injury. As such, the Veteran would have noted symptoms while performing his repetitive twisting motion or any subsequent repetitive motion that would trigger those nerves at the time. Given that the Veteran was asymptomatic for many years, his injury would have occurred much later after service, and his report of symptoms was generally inconsistent with medical knowledge. Thus, the examiner opined that the Veteran’s right carpal tunnel and left cubital tunnel syndromes were less likely as not related to service. Upon review of the evidence of record, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right carpal tunnel and left cubital tunnel syndromes and an in-service injury, event or disease. The December 2020 VA examiner explained that if the Veteran’s current right carpal tunnel and left cubital tunnel syndromes developed due to an in-service injury, he would have had symptoms in service and post-service. As the record did not show symptomatology for many years, the injury causing the Veteran’s right carpal tunnel and left cubital tunnel syndromes occurred after service. The Board finds the December 2020 examiner’s opinion persuasive, as the opinion is informed by a thorough review and analysis of the Veteran’s service treatment records, post-service treatment records, and medical expertise. The examiner’s opinion reflects clear and unequivocal conclusions regarding the relationship between the Veteran’s service treatment records, his post-service treatment records, and his current right carpal tunnel and left cubital tunnel syndromes. The reasoning adequately shows that the examiner’s conclusions are supported by the relevant and material information. The opinion is factually accurate, fully articulated, and based on sound reasoning. Thus, the opinion carries significant probative weight. While the Veteran believes his right carpal tunnel and left cubital tunnel syndromes are related to an in-service injury, event, or disease, including manual twisting while drilling, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. (Continued on next page)   As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim of service connection for bilateral upper extremity neurologic symptoms, diagnosed as right carpal and left cubital tunnel syndromes, is denied. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.