Citation Nr: 22016996 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-48 815 DATE: March 23, 2022 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for ganglion cyst removal for left hand is remanded. Entitlement to service connection for left carpal tunnel syndrome is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. FINDINGS OF FACT 1. Hypertension did not have its onset during the Veteran's active service and is not otherwise etiologically related to such service; and was not present to a compensable degree within one year of the Veteran's separation from active service. 2. Diabetes mellitus did not have its onset during the Veteran's active service and is not otherwise etiologically related to such service; and was not present to a compensable degree within one year of the Veteran's separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1974 to August 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). On the September 2017 VA Form 9, the Veteran requested a hearing before a Board member. In October 2021, the Veteran withdraw her request for a hearing. Therefore, the Board finds that there is no outstanding hearing request. In July 2019, the Veteran also revoked her representative and has proceeded with her appeal pro se. Service Connection Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38C.F.R. §§ 3.303, 3.304. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, such as arthritis, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hypertension The Veteran contends, without specificity, that her hypertension is related to active service. For the reasons explained below, the Board finds that entitlement to service connection is not warranted. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. The Veteran's service treatment records (STRs) are silent for complaints of and/or treatment for hypertension. In the reports of medical history dated in March 1974, June 1980, October 1981, and April 1995, the Veteran specifically denied "high blood pressure." In a March 1981 treatment note, the Veteran's blood pressure was 134/86. She was having respiratory problems and had to be rushed by ambulance to the emergency room. In April 1995, the Veteran was afforded a separation examination. At that time the Veteran's blood pressure was noted to be 102/60. There is no other indication from the examination report that there was any concern regarding the Veteran's blood pressure at the time of her separation from service. Post-service VA treatment records showed that the Veteran had an history of hypertension that began as early as July 2007. However, it has been noted that a VA treatment record dated February 2002, noted no history of hypertension. A May 2005 note indicated a diagnosis of mild pulmonary hypertension. A March 2007, note indicates that the Veteran had hypertension and would start on hypertension medication. Initially, the Board notes that while hypertension is included as a chronic condition under 38 C.F.R. § 3.309(a), there is no indication of hypertension within one year of her discharge from service. As noted above, the earliest indication of hypertension is dated in 2007, approximately 12 years after the Veteran's discharge from service. As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The Board further finds that service connection for hypertension is not warranted on a direct basis. Although there is evidence of a current diagnosis of hypertension, there is no evidence in the record of an in-service injury or a relationship between the Veteran's current hypertension and her active service. Furthermore, the Veteran has not alleged any injury, disease, or event in service to which her current hypertension could be related. Notably, the Veteran's record indicated that her hypertension began in 2007, approximately 12 years after service. In this context, the Board notes that the passage of several years between discharge from active service and the medical documentation of the claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson, 230 F.3d at 1333; Shaw, 3 Vet. App. at 36. Finally, there is no medical opinion linking the Veteran's hypertension to her active service and the Veteran's mere conclusory generalized lay statement that active service caused her hypertension is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274 (2010). Thus, as the weight of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 49. 2. Entitlement to service connection for diabetes mellitus The Veteran contends, without specificity, that her diabetes is related to active service. For the reasons explained below, the Board finds that entitlement to service connection is not warranted. The Veteran's STRs are silent for complaints of and/or treatment for diabetes. In the reports of medical history dated in November 1978, June 1980, October 1981, and upon separation April 1995, the Veteran specifically denied "sugar and albumin in urine". Post-service VA treatment records show that the Veteran had an history of diabetes that was diagnosed as early as January 2010. There are no other records to the contrary. Initially, the Board notes that while diabetes is included as a chronic condition under 38 C.F.R. § 3.309(a), there is no indication of a diagnosis of diabetes within one year of her discharge from service. As above, the earliest indication of diabetes is dated in 2010, approximately 15 years after the Veteran's discharge from service. As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The Board further finds that service connection for diabetes is not warranted on a direct basis. Although there is evidence of a current diagnosis of diabetes, there is no evidence in the record of in-service injury or a relationship between the Veteran's current diabetes and her active service. Furthermore, the Veteran has not alleged any injury, disease, or event in service to which her current diabetes could be related. Notably, the Veteran's record indicates that her diabetes began in 2010, approximately 15 years after service. In this context, the Board notes that the passage of several years between discharge from active service and the medical documentation of the claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson, 230 F.3d at 1333; Shaw, 3 Vet. App. at 36. Finally, there is no medical opinion linking the Veteran's diabetes to her active service and the Veteran's mere conclusory generalized lay statement that active service caused her diabetes is insufficient to require the Secretary to provide an examination. See Waters, 601 F.3d at 1278. Thus, as the weight of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND 3. Entitlement to service connection for ganglion cyst removal for left hand is remanded. The Veteran seeks service connection for ganglion cyst removal of the left hand. Specifically, in her September 2017 substantive appeal, she stated that the conditions are in her medical records and still continue today. The Veteran's STRs are silent for complaints of and/or treatment for a ganglion cyst of the left hand. However, in the reports of medical history dated November 1978, June 1980, October 1981, and upon separation April 1995 the Veteran admitted to having a tumor, growth, cyst, or cancer in active service. On the June 1980 examination, it appears that there is a notation that indicates, "ovarian cyst along with regular meds." There is no other notation about an ovarian cyst in the Veteran's service treatment records. Further, the Veteran experienced pain and swelling in her left hand in October 1986. A June 1995 X-ray report revealed left hand pain with an emphasis on the third finger and disrupted range of motion for two months. The Veteran has not yet been afforded a VA examination regarding this issue. Given the allegations of continuity of symptoms, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his ganglion cyst and ganglion cyst residuals due to excision. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for left hand and right hand carpal tunnel syndrome (CTS). The Veteran seeks service connection for left and right carpal tunnel syndrome. Specifically, in her September 2017 substantive appeal, she stated that the conditions are in her medical records and still continue today. The Veteran's STRs are silent for complaints of and/or treatment for carpal tunnel syndrome in her left or right hand. In the reports of medical history dated November 1978, June 1980, and October 1981, the Veteran denied painful or swollen joints. Further, an August 1993 X-ray report did show swelling, numbness, tingling, and cold sensation in the Veteran's hand on and off for two days. In August 1994, the examiner noted that the swelling in the Veteran's right hand has an unknown etiology. In the same month, the Veteran had reoccurrences of swelling in the right hand and all digits coupled with paresthesias, pain, and weakness. The examiner diagnosed the Veteran with tenosynovitis and recommended to use a splint on the right wrist/hand. The Veteran was advised not to use a weapon. Furthermore, in reports of medical history upon separation dated April 1995, the Veteran admitted to having painful and swollen joints. The post-service treatment records show a diagnosis of bilateral carpal tunnel syndrome in December 2000. During the January 2015 VA examination, the Veteran was diagnosed with bilateral tenosynovitis. Moreover, in the August 2017 VA examination, the Veteran was diagnosed with a trigger finger disability of the right hand. The other diagnosis noted was the status post trigger finger release of the third and fourth finger. The August 2017 VA examiner opined that the Veteran's current right hand disability was less likely than not incurred in and/or caused by the Veteran's complaints /treatment that occurred in August 1993 to August 1994 during service. The examiner further stated the Veteran was evaluated during service for multiple symptoms associated with the right hand without any definitive diagnosis established that would suggest any correlation to her status post trigger finger release affecting her third and fourth fingers of the right hand. Given the lack of evidence to suggest development of her trigger finger condition as incident to service, the examiner did not find a nexus between the Veteran's disability and active service. Unfortunately, the Board finds the August 2017 medical opinion inadequate for several reasons. First, the examiner failed to address the Veteran's lay statement that she had continuing symptoms regarding her left and right carpal tunnel syndrome. The examiner did not address the Veteran's pain in her left hand at all. The Veteran experience pain in her left hand in service. Second, the opinion was based on a factual inaccuracy. The STRs show that the pain, swelling, paresthesias, and weakness affected all digits of the Veteran's right hand. The Veteran was diagnosed with tenosynovitis and advised not to use a weapon. Therefore, the STRs show that there is evidence that there is a correlation between the Veteran's right hand symptoms in-service and her current trigger finger disability. The examiner based his opinion on a factual inaccuracy. Third, the examiner did not address or clarify the Veteran's different diagnoses associated with her bilateral hand disabilities during the claims period. There appears to be conflicting diagnoses with similar symptoms. The Veteran has been diagnosed with right hand tenosynovitis, joint bilateral tenosynovitis, bilateral carpal syndrome, and a right trigger finger disability. Given that the August 2017 VA medical opinion is inadequate, the Board finds that a remand is necessary to obtain an addendum opinion regarding the etiology of the Veteran's bilateral hand disabilities. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination with an examiner with sufficient expertise to determine the nature and etiology of the Veteran's claimed left wrist/hand disability to include the excision of the Veteran's ganglion cyst and ganglion cyst residuals. The claims file must be made available to and reviewed by the examiner. Any indicated test or studies should be provided. Based on the examination results and a review of the record, including any additionally received treatment records, the examiner should provide an opinion as to the following: Whether it is at least as likely as not that any currently present left wrist disability was incurred in or is related to active service, to include ganglion cyst removal. The examiner should address the Veteran's medical history that reflect the Veteran admitting to having a cyst, tumor or growth and her continuing symptoms of pain and/or swelling associated with left hand/wrist pain. A complete rationale, with citation to appropriate medical principles, must be provided. 3. Then, obtain an addendum opinion from the May 2017 examiner (or an examiner with sufficient expertise to determine the nature and etiology of the Veteran's right and left CTS). The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to the following: Whether it is at least as likely as not that any right and left CTS and/or any other bilateral hand disabilities (several diagnoses) are etiologically related to service. The examiner's attention is specifically directed to: (a) the Veteran's April 1995 report of medical history upon separation which is positive for painful and swollen joints; (b) STRs showing pain and swelling in the Veteran's left hand; (c) the STRs that show the Veteran had symptoms of swelling in the right hand and all digits coupled with paresthesias, pain, tingling, numbness and weakness; (d) reconcile post-service treatment records that reflect several diagnoses that include joint bilateral tenosynovitis, bilateral carpal syndrome and a right trigger finger disability with associated symptoms; (e) the Veteran's STR that shows a right hand tenosynovitis with associated symptoms and (f) the Veteran's continuing symptoms associated with bilateral carpal tunnel. A complete rationale, with citation to appropriate medical principles, must be provided. L. Baskerville Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED