Citation Nr: A22021189 Decision Date: 10/19/22 Archive Date: 10/19/22 DOCKET NO. 211124-200238 DATE: October 19, 2022 ORDER Service connection for left carpal tunnel syndrome is granted. Service connection for right carpal tunnel syndrome is denied. Service connection for a chronic sinus disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from July 1968 to July 1972. 2. Left carpal tunnel syndrome is related to service. 3. A current diagnosis of right carpal tunnel syndrome is not shown. 4. The Veteran sought treatment for acute sinusitis in service; however, a current diagnosis of a chronic sinus disorder has not been shown. CONCLUSIONS OF LAW 1. Right carpal tunnel syndrome was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). 2. Left carpal tunnel syndrome was incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). 3. A chronic sinus disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written under the AMA guidelines. The AMA applies to decisions written after February 19, 2019. In October 2021, the Agency of Original Jurisdiction (AOJ) denied the claims. In November 2021, he appealed this denial to the Board and sought Direct Review. Therefore, the Board may only consider the evidence of record at the time of the October 2021 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of service connection for carpal tunnel syndrome of the right hand and sinusitis, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Left and Right Carpal Tunnel Syndrome As to service connection for right and left carpal tunnel syndrome, in a September 2020 statement, the Veteran stated that he incurred carpal tunnel syndrome in service from serving as a data processing machine operator. He contended that he handled thousands of punch cards and was responsible for sorting, stacking, and handling large metal trays with decks of cards. Further, in a July 2020 clinical record, he contended that he has experienced right hand pain for 50 years. Turning to the relevant laws and regulations, service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). a. Right Hand As to right carpal tunnel syndrome, a current diagnosis of right carpal tunnel syndrome has not been shown. In a July 2020 private treatment record, the Veteran stated he feels his right hand has been bothering him for 50 years. Under Saunders v. Wilkie, "pain alone can serve as a functional impairment and therefore qualify as a disability" if it "reaches the level of functional impairment of earning capacity." 886 F.3d 1356 (2018). Here, however, the Board finds the symptoms have not reached the level of functional impairment of earning capacity. Specifically, in the July 2020 private treatment, no evaluation of the right hand was performed and a diagnosis was not rendered. More importantly, in the September 2020 statement from the Veteran describing in detail his symptoms, he only refers to symptoms of the left hand. Additionally, at the March 2021 VA examination, no right hand symptoms were reported. Clinical tests were negative for the right hand. Phalen's and Tinel's signs were negative. Accordingly, there is insufficient evidence to find that any pain or other right hand symptoms have reached the level of functional impairment of earning capacity. Therefore, a current disability is not present. As a current disability is a cornerstone of the claim of service connection, and here it is not established, service connection is not warranted. b. Left Hand As to left carpal tunnel syndrome, the AOJ rendered a favorable finding that the Veteran had been diagnosed with left carpal tunnel syndrome. Under applicable law, favorable findings are binding on the Board. Therefore, a current disorder is shown, and the first element of service connection is met. As to an in-service incurrence, in a September 2020 statement, the Veteran stated that he incurred carpal tunnel syndrome in service from serving as a data processing machine operator. He contended that he handled thousands of punch cards and was responsible for sorting, stacking, and handling large metal trays with decks of cards. However, service treatment records are absent for complaints, diagnoses, or treatment for left carpal tunnel syndrome until July 2020. In a September 2020 statement from a private Board Certified Orthopedic Surgeon, the clinician opined that left carpal tunnel was at least likely as not incurred in service. He reasoned that the Veteran's military occupational specialty of data processing machine operating supervisor required him to partake in repetitive motions that resulted in left carpal tunnel syndrome. This evidence weighs in support of the claim. On the other hand, a March 2021 VA examiner opined against the claim. The examiner reasoned that there was no continuity of care between separation from service and his evaluation in 2020 for left hand pain. The Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician's opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. In this case, the Board finds that the March 2021 VA examination did not appear to consider the Veteran's lay statements regarding the continuous symptoms since service. The examiner required documentation of ongoing evaluation or treatment for left carpal tunnel syndrome between his time in service and his evaluation in 2020 for left hand pain. The Board finds this reasoning less persuasive than the private examiner's opinion who took into consideration the repetitive motions the Veteran made for four years during service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current left carpal tunnel syndrome arose during or is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for left carpal tunnel syndrome is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Chronic Sinus Disorder As to service connection for a chronic sinus disorder, in the October 2021 rating decision, the AOJ rendered a favorable finding that the Veteran was treated for acute sinusitis in service. Under applicable law, favorable findings are binding on the Board. Therefore, an in-service incurrence is shown, and the first element of service connection is met. However, a current diagnosis of a chronic sinus disorder has not been shown during the appeal period which began in September 2020. Specifically, in a September 2020 statement, the Veteran asserted that he underwent surgery for sinusitis in the 1980s after having acute sinusitis in service and reoccurring issues since. The Veteran reported that since the surgery, he still gets an occasional severe sinus headache and nasal blockage when laying down. In an October 2020, the Veteran submitted a billing statement from an ear, nose, and throat specialist showing that he had undergone surgery in September 1980. He reiterated that he still gets a very painful sinus headaches every now and then. However, a March 2021 radiology report showed the Veteran's sinuses were normal. Further, in the March 2021 VA examination, the examiner did not diagnose the Veteran with sinusitis. The Veteran denied being on antibiotics within the prior year. The examiner found none of the findings, signs or symptoms attributable to chronic sinusitis. Instead, the examiner diagnosed the Veteran with allergic rhinitis, which was being treated with over the counter agents. The examination report shows that that rhinitis is a separate condition from sinusitis. The Board finds that the Veteran does not have a current sinusitis disability. There is insufficient evidence to show that any symptoms attributable to sinusitis cause functional impairment of earnings capacity, especially given the Veteran does not have signs and symptoms of sinusitis. Saunders v. Wilkie, 886 F.3d at 1356. The Veteran reported he has headaches associated with his sinusitis. While he is competent to report he has headaches, he is not competent to report that the headaches are due to sinusitis. The issue is medically complex, as it requires knowledge of the etiology of headaches and an internal view of the sinuses. Consequently, a current sinus disability has not been established. Therefore, service connection is not warranted. With respect to the scope of the claim, the Board acknowledges that in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the Veteran clearly stated he was seeking service connection for sinusitis. He referenced hospitalization for sinusitis in service and submitted evidence of sinus surgery. This outweighs the potentially overlapping symptoms he reported. Accordingly, the Board does not expand the scope of the claim to rhinitis. A. Rocktashel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.