Citation Nr: 21027263 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 13-09 058A DATE: May 5, 2021 ORDER Entitlement to service connection for left wrist carpal tunnel syndrome is granted. FINDING OF FACT The evidence is at least evenly balanced to suggest that the Veteran's left wrist carpal tunnel syndrome is attributable to the Veteran's service. CONCLUSION OF LAW The criteria for entitlement to service connection for left wrist carpal tunnel syndrome have been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 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 in the United States Marine Corps from August 2004 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. By way of background, the Veteran's claim was previously before the Board on March 7, 2018, see BVA Remand (Mar. 7, 2018), at which time the Board reopened the claim upon receipt of new and material evidence, see 38 C.F.R. § 3.156(a), and then remanded for further development. The claim then returned before the Board on January 9, 2020, at which time the Board found that new and material evidence was received to reopen the claim, and then denied the claim for service connection. See BVA Decision (Jan. 9, 2020). The portion of the January 2020 decision denying service connection was subsequently vacated upon a Joint Motion for Partial Remand (JMPR) granted by the Court of Appeals for Veterans Claims (Court) on December 21, 2020. The portion of the January 2020 decision that found that new and material evidence was received, to the extent that it was an issue in dispute at that time, was left undisturbed. See Sheets v. Nicholson, 20 Vet. App. 463, 466-7 (2006) (Court "cannot disturb a factual finding that is favorable to the appellant"). The Board now asserts jurisdiction and grants the claim for service connection in full. To the extent that the Veteran may not have been previously afforded substantial compliance with all previous remand directives, see Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board concludes that she cannot be prejudiced by this grant of service connection, which is the maximum benefit currently sought on appeal. Entitlement to service connection for left wrist carpal tunnel syndrome is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted based on evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As the Board grants the claim in full on this basis, no discussion of secondary service connection, service connection for a chronic disorder, or service connection based on continuation of symptomatology are required. The Veteran's representative had previously argued in its February 2008 brief that the Veteran's left wrist carpal tunnel syndrome should be service connected on a presumptive basis because it was diagnosed in April 2009 (within one year of her August 2008 discharge from service). As a result, the Board noted in its since-vacated January 2020 decision that the proximity of the diagnosis to service does create a presumption of service connection. However, the Board denied the claim in reliance upon affirmative, contrary evidence of intercurrent injury or disease which is a recognized cause of a chronic disability. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). It is not in serious dispute that the Veteran has a current diagnosis of carpal tunnel syndrome of the left wrist, which was diagnosed no later than July 2009, which is in turn less than one year after discharge. See Medical Treatment Records ( July 24, 2009 ) (rec'd Nov. 23, 2009). The Board notes that the Veteran indicated wrist pain in her service treatment records no later than June 2008. See STR ( June 3, 2008 ). In the January 2020 Board decision that has since been vacated, the Board determined that service connection was not warranted as the Veteran's carpal tunnel syndrome appeared more likely due to a post-service employment injury. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Upon vacatur of this decision, the Court stated that the parties agreed that a July 2009 Workers' Compensation report did not actually indicate any injury (let alone an intercurrent injury) and that the Veteran had no pertinent injuries prior to March 2008. See CAVC JMPR (Dec. 21, 2020), at Pages 2-3. To the extent that the previous July 2009 examiner concluded that "I would attribute 100 percent of this injury to work-related factors. She has been employed m this position for approximately one year and has had only minimal symptoms m the left hand in the past," see Medical Treatment Record ( July 24, 2009 ), at Page 13, the Board concludes that this negative etiological opinion cannot be afforded any probative weight as the Board's reliance upon this opinion would be incompatible with the JMPR. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). (Continued on the next page) Ultimately, there is not sufficient basis for the Board to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose); Chisem v. Gober, 10 Vet. App. 526, 528 (1997). Instead, the Board concludes that the evidence of record is at least evenly balanced as to whether the Veteran is entitled to service connection on a presumptive basis. To the extent that there may be remaining reasonable doubt to resolve, the Board resolves it in the Veteran's favor. The claim must be granted. 38 U.S.C. § 5107, 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.