Citation Nr: 22043314 Decision Date: 07/29/22 Archive Date: 07/29/22 DOCKET NO. 17-37 086 DATE: July 29, 2022 REMANDED The claim of entitlement to service connection for bilateral carpal tunnel syndrome (CTS), to include as secondary to bilateral foot disabilities, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Marine Corps from February 1999 to July 2003. He had a subsequent period of reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the evidence of record. This matter was remanded by the Board to the RO in July 2019, September 2020, May 2021, and September 2021, and there has been extensive development at the RO level to obtain an adequate medical opinion to address whether the Veteran's CTS is etiologically related to his active service, to include as on a secondary basis. The Board concludes that, although sincerely regrettable, remand is again needed in order to obtain substantial compliance with its prior directives pursuant to Stegall v. West, 11 Vet. App. 268 (1998), and to address the now reasonably raised theory of whether the Veteran's obesity may be an "intermediate step" between his service-connected disabilities and current CTS. See 38 U.S.C. § 3.310; Walsh v. Wilkie, 32 Vet. App. 300, 307 (2020). Additionally, and significantly, in an October 2021 filing, the Veteran reported that he had a subsequent period of active duty service from July 2003 to January 2007. Medical and service personnel records for this period are not of record and may be particularly relevant for determining whether the Veteran's CTS is related to the Veteran's active service. The claim of entitlement to service connection for bilateral carpal tunnel syndrome, to include as secondary to bilateral foot disabilities, is remanded. The Veteran contends that his bilateral carpal tunnel syndrome is related to his active service. He contends that the condition "was directly caused as a result of [his] service connected injuries" to include as due to his in-service use of crutches while treating foot conditions. See April 2016 Notice of Disagreement (NOD); July 2017 Form 9; January 2019 Statement of Accredited Representative. Alternatively, he contends that he has had symptoms of CTS that started in service and have continued ever since. See February 2019 Board hearing transcript. First, the Certificate of Discharge (DD 214) currently of record lists the Veteran's active duty as ending in May 2003 and noting that his reserve obligation was to terminate in January 2007. Service personnel records indicate that the Veteran received the Global War on Terrorism Service Medal (GWTSM) in approximately November 2004. As noted above, the Veteran reported in an October 2021 filing that he had a period of active duty between 2003 to 2007. It appears that no efforts have been made to request or obtain personnel or medical treatment records for any period of service after May 2003. As such, the Board finds that additional development is necessary to clarify the Veteran's qualifying active service dates (to include periods of active and inactive duty for training) and to obtain complete medical and service personnel records for any such periods. Next, the Board notes that its prior remand directives have aimed to determine whether there is a direct nexus or secondary link between the Veteran's active service and current CTS. The Veteran's service treatment records (STRs) do not include any complaint of or treatment for wrist or finger pain or numbness, yet the Veteran has testified that he experienced symptoms of hand pain and numbness both during and since service. Medical opinions obtained on most recent remand continued to rely on the lack of documented medical treatment of symptoms between 2003 and 2013 to conclude that the Veteran's condition was unlikely related to service. See June 2022 VA examination opinion (stating there was "too long a gap since service discharge to establish a nexus with the present symptoms."). As stated in past Board remands, reliance on the mere lack of contemporaneous medical treatment records is inadequate for the Board's purposes. On remand, more attention must be paid to the Veteran's own lay reports of symptoms since service. Finally, the Board notes that the August 2020 examination opinion states that, obesity "is a well-established risk factor for carpal tunnel syndrome." This clinician noted that the Veteran "was obese before the carpal tunnel was diagnosed." The medical and personnel records currently of record also indicate that the Veteran was granted a weight waiver to enter Marine Corps Recruit Training in 1999. His records further show that he was counseled on multiple occasions during active duty about his weight and assigned to a "Marine Corps Body Composition Program" due to failing to maintain "proper Marine Corps height and weight standards." See August 2002; January 2003 Administrative Remarks; October 2002 Body Composition Screening (noting the Veteran's report that he had "life-long weight issues" and his being assessed as having "class I" obesity.). The Veteran experienced ongoing bilateral foot pain and treatment resulting in his use of crutches on multiple occasions during his known period of active duty. Although obesity is not considered a disease or disability for VA purposes and not eligible for service connection, obesity may be an "intermediate step" in a secondary-service-connection analysis when a service-connected disability causes or aggravates obesity. Walsh, 32 Vet. App. at 307. This theory of secondary service connection may be reasonably raised where there is some evidence in the record which draws an association between a veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. This can include evidence of mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions), or where there is treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition. See Garner v. Tran, 33 Vet. App. 241, 241 (2021); VA General Counsel Precedential Opinion 1-2017. Given the evidence that obesity is a risk factor for CTS, the evidence of the Veteran's in-service weight challenges, and the evidence of his service-connected chronic orthopedic conditions, the Board finds additional remand necessary to determine if there is an association between the Veteran's claimed CTS and his service-connected bilateral foot disabilities, to include as due to obesity as an intermediate step. The matter is REMANDED for the following action: 1. First, obtain the Veteran's complete service treatment records, to include any pertaining to his Reserve service, to include all periods of active and inactive duty for training. See October 2021 VA Form 526EZ (reporting active service from July 2003 to January 2007); Individual Separation Information located in Defense Personnel Records Information (DPRIS) (showing the Veteran received the GWTSM). Document all requests for records and information as well as all responses in the claims file. 2. After the above records have been obtained and associated with the claims file, request an opinion from an appropriate VA clinician to determine the nature and etiology of the Veteran's claimed bilateral carpel tunnel syndrome, to include as due to obesity as an intermediate step. Ask the clinician to complete the following: (a.) Conduct a review of the Veteran's claims file, to include past VA examination opinions, VA and private medical records, all available service medical and personnel records, the Veteran's lay reports of service and post-service symptoms listed in the NOD, Form 9, and February 2019 Board hearing transcript. If a new telemedicine or in-person interview of the Veteran is needed to provide any of the requested opinions, it should be arranged. (b.) Please opine whether the Veteran's CTS is approximately at least as likely as not related to an in-service event, injury, or disease. In providing this opinion, consider the Veteran's descriptions of symptoms that he felt numbness and pain in his hands and wrists both during and since service, that he utilized crutches on multiple occasions during service, etc. See Board hearing transcript. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current CTS disability, please explain why. Reliance on a mere lack of contemporaneous medical treatment records is inadequate for opinion purposes. If the answer to (b.) is no, then please answer the following: (c.) Is it approximately at least as likely as not that the Veteran's CTS was aggravated by any one or more of his service-connected disabilities? Aggravation means a functional increase in the severity of the condition beyond the normal progression. If the answer to (c.) is also no, then please answer the following: (d.) Is it approximately at least as likely as not that any one or more of the Veteran's service-connected disabilities, caused him to become obese? (For example, by negatively impacting his ability to exercise, affecting metabolism, etc.) If yes, then would the Veterans bilateral CTS not have occurred but for the obesity caused by the service-connected disability/disabilities? If the answer to (d.) is also no, then please answer the following: (e.) Is it approximately at least as likely as not that any one or more of the Veteran's service-connected disabilities aggravated his obesity? If yes, then was the obesity, (as aggravated by the service-connected condition(s)), a substantial factor in causing or aggravating the Veteran's CTS? In other words, did the Veteran's service, or in-service injuries and disabilities, continue to progress his obesity, and if so, is it at least as likely as not that his obesity is a cause of his current CTS. In providing this opinion, please consider service records as outlined in the body of this remand. (E.g., August 2020 examination listing obesity as a well-established risk factor for CTS; service records showing the Veteran was assessed as having "class I" obesity in October 2002. If aggravation is found, please attempt to identify the baseline level of disability prior to aggravation, by considering lay and medical evidence of record. The examination report must include a complete rationale for all opinions expressed. 3. Following completion of the above, the Agency of Original Jurisdiction (AOJ) should review the record, ensure adequacy of the development, and readjudicate the claim on appeal. If the claim remains denied, the AOJ should issue an appropriate supplemental Statement of the Case, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.