Citation Nr: 21022157 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-19 340A DATE: April 14, 2021 ORDER Entitlement to service connection for a neurological condition affecting the left hand and wrist, to include cervical radiculopathy, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the evidence of record demonstrates it is at least as likely as not that the Veteran’s neurological condition affecting the left hand and wrist was incurred while in the line of duty during a period of active duty for training. CONCLUSION OF LAW The criteria for entitlement to service connection for a neurological condition affecting the left hand and wrist, to include cervical radiculopathy, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to July 1982 and from June 1983 to July 1983. Thereafter, he served as a member of the United States Air Force Reserve until March 2013 with multiple periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). The matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2014, April 2015 and July 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously remanded by the Board in July 2020. Specifically, the Board remanded for additional development to obtain a medical opinion regarding the nature and etiology of the Veteran’s neurological condition affecting the left hand and wrist. VA examinations were associated with the claims file in August 2020 and October 2020. As such, there has been substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The case has been returned to the Board for review. In October 2018, the Board recharacterized the Veteran’s claim broadly as entitlement to service connection for a left upper extremity disability, to include carpal tunnel syndrome. In July 2020, the Board recharacterized the Veteran’s claim broadly as entitlement to service connection for a neurological condition affecting the left hand and wrist, to include carpal tunnel syndrome and cervical radiculopathy. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for a neurological condition affecting the left hand and wrist, to include carpal tunnel syndrome and cervical radiculopathy. The Veteran initially submitted a claim seeking service connection for carpal tunnel syndrome in July 2013. See July 2013 VA Form 21-526 and Statement in Support of Claim. Specifically, the Veteran contends that he injured his left wrist/hand in the line of duty while doing physical training during a period of authorized reserve training in March 2011. See February 2015 Statement in Support of Claim. The Veteran does not contend that he has a current neurological condition related to his period of active duty service from July 1978 to July 1982. Generally, service connection may be established on a direct incurrence basis for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Active military, naval, and air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. See 38 C.F.R. § 3.6(a). When a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned became disabled during the period of ACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA does not qualify as “active military, naval, or air service” and the claimant does not achieve Veteran status for purposes of that claim. See 38 U.S.C. § 101(2), (22), (24); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The advantage of certain evidentiary presumptions, provided by law, that assist Veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). Thus, the evidentiary burden, in this case, is on the claimant to show that he became disabled from an injury or disease incurred in the line of duty during ACDUTRA. The evidence of record demonstrates the Veteran is currently diagnosed with a neurological condition affecting his left hand and wrist, including carpal tunnel syndrome and cervical radiculopathy. See April 2013 private treatment records; August 2020 VA medical opinion. Therefore, presence of a current disability has been met. See Shedden, 381 F.3d at 1167. The Veteran’s military personnel records indicate that he served in the United States Air Force Reserves with multiple periods of ACDUTRA from November 2001 to March 2013. A March 2011 informal line of duty (LOD) determination indicated the Veteran was diagnosed with radiculopathy of the left hand with ulnar/median distribution and notes “chronic 1.5 years.” See March 2011 Informal LOD Determination. It also noted that the Veteran was injured while performing physical training testing. Id. A finding that the Veteran’s injury occurred while in the line of duty was recommended. Id. As such, the second Shedden criteria for service connection has been met. See Shedden, 381 F.3d at 1167. As noted, the Veteran contends his symptoms began in 2009. In May 2010, the Veteran was referred to physical therapy with complaints of neck and shoulder pain, and numbness with pushups. See May 2010 private treatment records. The Veteran’s reserves treatment records demonstrate the Veteran was treated and assessed with radicular symptoms in March 2011. See March 2011 service treatment records. The Veteran reported that his symptoms began about 1.5 years prior after doing pushups during physical training testing. Id. In April 2013, the Veteran was assessed with cervical spondylosis and the physician noted the Veteran likely had cervical radiculopathy, and EMG findings showed mild left carpal tunnel syndrome. See April 2013 service treatment records. The Veteran underwent an EMG that resulted in a diagnosis for carpal tunnel syndrome only. See April 2013 private treatment records. A private physician noted that the EMG findings did not show evidence of radiculopathy in April 2013. Id. An August 2013 private treatment record indicated the Veteran’s left wrist symptoms and diagnosed carpal tunnel syndrome had a three-year onset that started with doing pushups. An August 2014 private treatment record also indicates the Veteran has had carpal tunnel syndrome for about three years. An April 2015 private physician also noted the Veteran was diagnosed with left carpal tunnel syndrome based on history and clinical findings and noted again that the April 2013 nerve conduction study did not show evidence of cervical radiculopathy. See April 2015 private treatment record. The Veteran was initially afforded a VA examination April 2016. The VA examiner noted the Veteran’s report that he experienced weakness, numbness, and tingling to his left hand/wrist since 2009 after performing physical training, including pushups, when he was in status with his unit in the United States Air Force Reserves. See April 2016 VA examination. The April 2016 VA examiner opined that it was less likely than not that the Veteran’s carpal tunnel syndrome was related to his injury on ACDUTRA in March 2011. Id. However, in October 2018, the Board determined the April 2016 VA examiner’s opinion inadequate for decision making purposes as the April 2016 VA examiner’s negative opinion was based solely on the lack of contemporaneous service treatment records in the evidentiary record and did not adequately address the Veteran’s statements. The Veteran was provided a second VA examination in October 2019. The VA examiner opined that the Veteran’s left carpal tunnel syndrome was less likely than not incurred in service. See October 2019 VA examination. However, the VA examiner relied solely on the lack of medical records between 1978 to 1983, the period of the Veteran’s active duty service. Id. In July 2020, the Board determined the October 2019 VA examiner’s medical opinion was inadequate for decision making purposes because it did not address the Veteran’s statements or period of ACDUTRA, including the informal LOD determination. The Veteran was afforded additional VA examinations in August 2020 and October 2020. The August 2020 VA examiner opined that the Veteran’s neurological condition was at least as likely as not incurred during the Veteran’s period of ACDUTRA in March 2011. See August 2020 VA medical opinion. As rationale, the VA examiner noted the Veteran became symptomatic from a likely left upper extremity neurologic condition, cervical radiculopathy and not likely carpal tunnel syndrome during the 2011 period in question. Id. The VA examiner noted the record contains evidence that he suffered from and sustained similar issues in 2009 based on the October 2019 VA examination. Id. The VA examiner stated that the normal EMG in 2013, that did not result in a finding of radiculopathy, does not contradict the nexus opinion because radiculopathies come and go based on whether the nerve is being compressed. Id. The VA examiner noted medical literature and clinical practice clearly demonstrates resolution and improvement of radiculopathies with intermittent flares. Id. The October 2020 VA examiner opined that the Veteran’s carpal tunnel syndrome is less likely than not incurred in or caused by the injury documented in the March 2011 informal LOD determination. See October VA medical opinion. As rationale, the VA examiner noted there was no evidence in the service treatment records of a left wrist/nerve condition prior to service, and no evidence of record of any previous injury/evaluation available for review demonstrating his condition occurred after pushups during physical training testing 1.5 years earlier. Id. The VA examiner noted the Veteran’s symptoms and exam findings were consistent with an ulnar nerve pattern in 2011. Id. The VA examiner noted the Veteran was not diagnosed with carpal tunnel syndrome until 2013, and by the time of the 2015 private medical record, the Veteran’s ulnar nerve symptoms seem to have resolved. Id. The Board finds that the evidence of record regarding a link between the Veteran’s neurological condition and his period of ACDUTRA are in relative equipoise. First, the Board finds the Veteran is competent and credible to report lay observation, including symptoms that occurred during a period of time when he was serving on authorized training with the United States Air Force Reserves. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran consistently reports that his symptoms began while doing pushups and physical training in an authorized status in the United States Air Force Reserves. Second, private treatment records demonstrate the Veteran had carpal tunnel syndrome dating back to the time of the Veteran’s period of ACDUTRA and contains the Veteran’s reports of symptoms beginning following physical training. See August 2014 and August 2013 private treatment records. Third, the April 2016 and October 2019 VA examinations and medical opinion are inadequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Though the October 2020 VA examiner provided a negative opinion, the October 2020 VA examiner’s medical opinion still heavily relies on the absence of contemporaneous medical treatment records in service and only addresses the Veteran’s diagnosis for carpal tunnel syndrome rather than broadly as a neurological condition despite noting the Veteran’s radiculopathy appeared to resolve by 2015. Since the Board has characterized the Veteran’s claim broadly as a neurological condition, to include radiculopathy and carpal tunnel syndrome, the Board finds the October 2020 VA examiner’s medical opinion is entitled to less probative value. See Nieves-Rodriguez, 22 Vet. App. at 302. The August 2020 VA examiner’s medical opinion suggests the Veteran still has a neurological condition, including radiculopathy as noted on the March 2011 informal LOD determination and opined that the Veteran’s current neurological condition was at least as likely as not related to the injury that occurred in March 2011 on ACDUTRA. As discussed, the August 2020 VA examiner noted that radiculopathy comes and goes, and the April 2013 nerve conduction testing does not contradict the positive nexus opinion provided. Additionally, the October 2020 VA examiner did not discuss the August 2020 VA examiner’s medical opinion or provide why the August 2020 VA examiner’s medical opinion is incorrect. In fact, the October 2020 VA examiner noted the Veteran’s radiculopathy did not resolve until at least the time of the 2015 private medical record which suggests the Veteran’s radiculopathy may have been still present at the time of the April 2013 nerve conduction testing as suggested by the August 2020 VA examiner. In other words, despite the Veteran’s medical records from April 2013 that only shows a diagnosis for carpal tunnel syndrome, the August 2020 VA examiner still determined the Veteran has a neurological condition related to the injury sustained in March 2011. Moreover, the August 2020 VA examination broadly considered whether the Veteran has a neurological condition related to the Veteran’s period of ACDUTURA instead of just providing an opinion regarding the Veteran’s carpal tunnel syndrome. Therefore, the Board finds that the medical evidence of record is at least in relative equipoise regarding a link between the Veteran’s neurological condition and his injury in March 2011 while serving on ACDUTRA. (Continued on the next page)   In sum, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran has a neurological condition that is related to his period of ACDUTRA in March 2011 noted in the informal LOD determination. In consideration of all the evidence of record in this case, and with resolution of any doubt in the Veteran’s favor, the Board finds that service connection for the Veteran’s neurological condition affecting his left hand and wrist, to include radiculopathy, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53 (1990). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.