Citation Nr: 22049166 Decision Date: 08/30/22 Archive Date: 08/29/22 DOCKET NO. 14-39 779 DATE: August 30, 2022 ORDER Entitlement to service connection for bilateral carpal tunnel syndrome is denied. Entitlement to service connection for a cervical spine disability is denied. FINDINGS OF FACT 1. The Veteran's diagnosed bilateral carpal tunnel syndrome is not shown to be due to, etiologically related to, or aggravated by any event, disease, or injury in service. 2. The Veteran's diagnosed cervical spine disability is not shown to be due to, etiologically related to, or aggravated by any event, disease, or injury in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1957 to March 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO), who denied the benefits currently sought on appeal. In a November 2014 substantive appeal, the Veteran requested a hearing before the Board. However, in a December 2017 correspondence, the Veteran withdrew the hearing request. Accordingly, the Board considers the request for hearings be withdrawn and will adjudicate the claims accordingly. 38C.F.R. §20.704 (d), (e. In April 2018, April 2021, and most recently in March 2022, the Board remanded this matter for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). Service Connection To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for bilateral carpal tunnel syndrome. The Veteran contends that the currently diagnosed bilateral carpal tunnel syndrome is the result of his active-duty service. As noted above, in April 2021, the Board remanded this matter for additional development. The Board sought a medical opinion to determine the etiology of the Veteran's carpal tunnel syndrome. Etiological opinions were rendered in July 2021, with an addendum opinion in November 2021. Each opinion provided a negative nexus opinion, but in March 2022, the Board found those opinions to be inadequate. In brief, the Board found that the opinions provided were conclusory, and relied on the lack of in-service complaints of carpal tunnel syndrome when providing the opinion, which is not fatal to the Veteran's claim. See Dalton v. Nicholson, 21 Vet. App. 23 30-31 (2007) (examination inadequate where the examiner relied solely on the lack of evidence in service treatment records and ignored the Veteran's lay statements to provide negative opinion). The Board also noted that the examiner was to discuss the Veteran's military occupational specialty (MOS) of being a clerk typist, as directed by the April 2021 Board remand. That had not occurred in the opinions provided. Thus, in March 2022, the Board remanded the Veteran's claim again. The Veteran was then given a VA examination in April 2022. The Veteran was seen in person and his claims file was reviewed. The examiner confirmed the Veteran's current diagnosis of carpal tunnel syndrome, bilaterally. They then provided both positive and negative nexus opinions on direct service connection. The rationale provided discussed a review of medical literature, but offered contradictory results, finding that the Veteran's carpal tunnel syndrome both was, and wasn't related to his active-duty service. His MOS of a typist was mentioned, however the examiner also noted that the Veteran had worked as a typist following his active-duty service. The opinions were combined with discussion regarding diabetic neuropathy of the upper extremities, which the Board observes the Veteran is not currently service connected for. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). While there is nothing to doubt the competence or credibility of the April 2022 examiner, the Board finds that the contradictory opinions are inadequate. Simply put, the examiner offered both positive and negative opinions, and much of the information related to medical literature was not linked to the Veteran. The information related to his MOS of being a typist was also written both for, and against the Veteran's claim. Thus, the Board finds that the opinion provided is at best unclear, as to what the etiological conclusion is. Therefore, the Board finds the opinion inadequate. The RO noted the inconsistency of the April 2022 examiner's opinion and requested an addendum opinion. That opinion occurred in May 2022. The examiner noted that the Veteran's claims file was reviewed, and this is clear by the list of evidence considered in the report. The examiner then noted the Veteran's current diagnosis of bilateral carpal tunnel syndrome. They then opined that the carpal tunnel syndrome was less likely than not due to the Veteran's active-duty service. The rationale provided noted that the carpal tunnel syndrome did not begin in service, nor did it manifest within the year after service. The examiner discussed the Veteran's MOS of being a typist and later as a gunner, working with heavy artillery. They wrote that it was highly unlikely that any carpal tunnel syndrome would have gone unnoticed or unreported. They also noted that carpal tunnel syndrome did not develop symptoms for decades, and that it was unlikely that this disability could have gone untreated for so long without attention. Thus, a negative etiological opinion was provided. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran has not met each of the criteria for entitlement to service connection. To begin, he has a current diagnosis of bilateral carpal tunnel syndrome, as confirmed through various VA examinations during the course of the appeal. The Veteran's MOS of being a clerk typist/administrative specialist has also been confirmed. See DD-214. Thus, the first and second criteria have been met. Having said that, the Veteran's claim has been remanded on multiple occasions, as VA examinations and addendum opinions were each deemed inadequate. Following the most recent remand. The Board obtained contradictory opinions in April 2022, which are found to be inadequate. The May 2022 VA addendum opinion however has been afforded significant probative weight. It is clear from the report provided that the Veteran's claims file was reviewed, and his MOS of being a clerk typist was considered. The examiner provided a detailed rationale that followed the Board's prior remand directives. That report stated that the Veteran's bilateral carpal tunnel syndrome was less likely than not due to his active-duty service. No positive reports, VA or otherwise, have been provided, and neither the Veteran, nor his Representative, have argued that the May 2022 report is inadequate. The Board further observes that the first reported diagnosis of the Veteran's bilateral carpal tunnel syndrome of the hands stems from a September 2011 VA treatment record. This diagnosis is over forty years following the Veteran's separation from service. The passage of many years between discharge and medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As such, the Board finds that the Veteran's carpal tunnel syndrome is not due to his active-duty service, and he has not met the third and final criteria for entitlement to service connection. Thus, the Board finds that entitlement to service connection for bilateral carpal tunnel syndrome is not warranted. In reaching these conclusions, the Board finds that the evidence persuasively stands against finding in favor of the claim in that it is not in approximate balance or nearly equal to the evidence that supports the claim. As such, the benefit of the doubt rule is not for application, and the claim for entitlement to service connection for bilateral carpal tunnel syndrome must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a cervical spine disability. The Veteran contends that the currently diagnosed cervical spine disability is the result of his active-duty service. As noted above, in April 2021, the Board remanded this matter for additional development. The Board sought a medical opinion to determine the etiology of the Veteran's cervical spine disability. Etiological opinions were rendered in July 2021, with an addendum opinion in November 2021. Each opinion provided a negative nexus opinion, but in March 2022, the Board found those opinions to be inadequate. In brief, the Board found that the opinions provided were conclusory, and relied on the lack of in-service complaints of a cervical spine disability when providing the opinion, which is not fatal to the Veteran's claim. See Dalton, id. The Board also noted that the examiner was to discuss the Veteran's second MOS as a cannoneer, which he claims involved the heavy lifting of artillery shells and operating of heavy firearms (155 howitzer) during ACDUTRA from 1957 to 1961 with the 807th Field Artillery Battalion in Temple, Texas. The Veteran's lay statements and his MOS were not discussed in the opinions provided. Thus, the Board in March 2022 remanded the Veteran's claims again. The Veteran was then given a VA examination in April 2022. The Veteran was seen In person and his claims file was reviewed. The examiner confirmed the Veteran's current diagnosis of a cervical spine disability. They then provided both positive and negative nexus opinions on direct service connection. The rationale provided discussed a review of medical literature, but offered contradictory results, finding that the Veteran's cervical spine disability both was, and wasn't related to his active-duty service. His MOS of working with heavy artillery was discussed, but the conclusions offered both confirmed and denied that it could cause the cervical spine disability. Again, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). While there is nothing to doubt the competence or credibility of the April 2022 examiner, the Board finds that the contradictory opinions are inadequate. Again, the examiner offered both positive and negative opinions, and much of the information related to medical literature was not linked to the Veteran. The information related to his MOS of working with heavy artillery was also written in a way that affirmed and denied the Veteran's claim. Thus, the Board finds that the opinion provided is at best unclear, as to what the etiological conclusion is. Therefore, the Board finds the opinions inadequate. The RO noted the inconsistency of the April 2022 examiner's opinion and requested an addendum opinion. That addendum opinion was given in May 2022. Again, the examiner noted that the Veteran's claims file was reviewed, and this is clear by the list of evidence considered in the report. The examiner then confirmed the Veteran's current diagnosis of a cervical spine strain. They then opined that the cervical spine disability was less likely than not due to the Veteran's active-duty service. The rationale provided noted that a cervical spine disability did not begin in service, nor did it manifest within the year after service. The examiner discussed the Veteran's MOS of being a typist and later as a gunner, working with heavy artillery. They wrote that it was highly unlikely that any cervical spine condition would have gone unnoticed or unreported. They also noted that the cervical spine disability did not develop symptoms for decades, and that it was unlikely that this disability could have gone untreated for so long without attention. Instead, they wrote that degenerative cervical spine disease is a naturally occurring condition that was age-appropriate when it was originally diagnosed. They opined that the cervical spine disability was "due to normal wear and tear over a lifetime with associated natural disc desiccation," and that 50 percent "of men 50 and over will have evidence of degenerative spine disease." Thus, a negative etiological opinion was provided. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran has not met all of the criteria for entitlement to service connection. To begin, he has a current diagnosis of a cervical spine disability, as confirmed through various VA examinations during the course of the appeal. The Veteran's period of ACDUTRA from 1957 to 1961 with the 807th Field Artillery Battalion in Temple, Texas has been confirmed by the Board, and affording the Veteran the benefit of the doubt, he likely was placed in situations where heavy artillery had to be moved and/or carried. Thus, the first and second criteria have been met. As noted above however, the Veteran's claim has been remanded on multiple occasions, as VA examinations and addendum opinions were each deemed inadequate. Following the most recent remand. The Board obtained contradictory opinions in April 2022, which the Board has also found to be inadequate. The May 2022 VA addendum opinion however has been afforded significant probative weight. It is clear from the report provided that the Veteran's claims file was reviewed, and his involvement around guns and heavy artillery was noted. The examiner provided a detailed rationale that followed the Board's prior remand directives. That report stated that the Veteran's cervical spine disability was less likely than not due to his active-duty service. No positive reports, VA or otherwise, have been provided, and neither the Veteran, nor his Representative, have argued that the May 2022 report is inadequate. As such, the Board finds that the Veteran's cervical spine disability is not due to his active-duty service, and he has not met the third and final criteria for entitlement to service connection. Thus, the Board finds that entitlement to service connection for a cervical spine disability is not warranted. In reaching these conclusions, the Board finds that the evidence persuasively stands against finding in favor of the claim in that it is not in approximate balance or nearly equal to the evidence that supports the claim. As such, the benefit of the doubt rule is not for application, and the claim for entitlement to service connection for a cervical spine disability must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.