Citation Nr: 23051001 Decision Date: 09/14/23 Archive Date: 09/14/23 DOCKET NO. 17-50 665 DATE: September 14, 2023 ORDER Entitlement to service connection for a bilateral hand disorder, to include trigger finger and carpal tunnel syndrome, is granted. FINDING OF FACT The Veteran has experienced continuity of symptomatology related to a bilateral hand disorder, to include trigger finger and carpal tunnel syndrome, since his separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hand disorder, to include trigger finger and carpal tunnel syndrome, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 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 from September 1973 to September 1976, May 1979 to July 1992, and February 2003 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in July 2018; and denied service connection for a bilateral hand disorder in a January 2021 decision. The Veteran subsequently appealed such denial to the United States Court of Appeals for Veterans Claims (Court). In a February 2022 Order, the Court granted the Secretary of VA's and the Veteran's (the parties') Joint Motion for Remand (JMR), which vacated and remanded the January 2021 Board decision. In June 2022, the Board remanded the claim for additional development, to include a VA examination. An October 2022 VA examination performed by Dr. A.C. was obtained. The matter was most recently before the Board in May 2023, at which time it was remanded for further development, to include forwarding the record to the October 2022 VA examiner (Dr. A.C.), or an appropriate substitute if she is unavailable, for an addendum opinion regarding the etiology of the Veteran's bilateral hand disorders. VA opinions were obtained in June 2023 by a substitute examiner. For the reasons stated below, the Board is not satisfied that the instructions in its remand have been satisfactorily complied with. See Stegall v. West, 11?Vet. App.?268 (1998). However, given the history of this case and multiple medical opinions already of record, the Board finds that a remand for further development in this case would be futile. 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 laws and regulations Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The presumptive chronic diseases include carpal tunnel syndrome as an organic disease of the nervous system. Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 308 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(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 resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. This standard does not require the evidence to be exactly equal; rather, it includes "scenarios where the evidence is not in equipoise but nevertheless is in approximate balance. Put differently, if the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Entitlement to service connection for a bilateral hand disorder, to include trigger finger and carpal tunnel syndrome The Veteran contends his bilateral hand disorder, to include trigger finger and carpal tunnel syndrome, are related to his military service. Turning to the evidence, service treatment records for the Veteran's first two periods of active duty (from September 1973 to September 1976, and from May 1979 to July 1992) reveal no complaints, treatments, or diagnoses pertinent to a right or left hand condition. February 2001 VA treatment records reveal complaints of bilateral arm numbness and articulation pain in the past week. In May 2002, the Veteran was prescribed a resting splint due to mild carpal tunnel syndrome in left hand. In August 2002, the Veteran was treated for hand swelling, more in the left hand than right. He was diagnosed with left hand carpal tunnel syndrome and lateral epicondylitis. During the Veteran's third period of active duty (from February 2003 to November 2003), service treatment records reveal no complaints, treatments, or diagnoses pertinent to a right or left hand condition. A report of medical examination performed in May 2000 for the National Guard shows that findings for the upper extremities were normal. A report of medical examination performed in October 2003 (service separation) shows that findings for the upper extremities were normal. The Veteran did not report any pertinent problems on the report of medical history at that time. June 2004 VA treatment records include complaints of bilateral hand numbness. In April 2005, the Veteran was diagnosed with trigger finger of the third digit in his left hand. In March 2006, he was diagnosed with bilateral trigger finger in the third digit of both hands. In April 2010 VA treatment records, the Veteran complained of burning and numbness in his hands. January 2012 records note tenderness in the wrists. In January 2012 the Veteran complained of right hand swelling for the past three weeks; imaging showed chronic, healed fracture of the right fifth metacarpal. In April 2012, the Veteran underwent right hand carpal tunnel surgery. In December 2014, the Veteran was still assessed with bilateral carpal tunnel, but it was noted it was "stable at this moment." In March 2015, it was noted the Veteran had severe sensory motor neuropathy of the left median nerve, with atrophy of thenar muscles and severe carpal tunnel syndrome on the right side. In May 2015, a referral for hand surgery was placed due to the severity of the Veteran's bilateral carpal tunnel. In October 2015, the Veteran was afforded a VA hand and finger conditions examination. However, in the February 2022 JMR, the parties agreed that the examination and opinion were inadequate. As such, the October 2015 VA examination will not be discussed. In the February 2022 JMR, it was noted that the Veteran "should have been presumed to be sound at the time of his entrance into service in 2003." The parties agreed remand was warranted for VA to obtain an adequate medical examination. Additionally, remand was warranted for the Board to address the presumption of soundness and presumptive service connection for carpal tunnel syndrome. In a June 2022 Board decision, it was determined that the Veteran's entrance examination was silent as to any bilateral hand condition or disability. Importantly, the Board found that a bilateral hand disability did not preexist service and the Veteran was sound upon entry into the military. Based on the February 2022 JMR, the Board remanded the claim for VA to obtain an adequate medical examination. In October 2022, after a review of the VA e-folder, a VA examiner opined that the Veteran's bilateral carpal tunnel syndrome and trigger fingers were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, it was noted that the service treatment records from the Veteran's first two periods of active duty did not support or show a history of a bilateral hand disorder consistent with his complaints of numbness and subsequent complaints of pain and swelling of fingers, which led to the diagnosis of bilateral carpal tunnel syndrome and trigger fingers, respectively. In this regard, the examiner noted that the Veteran's treatment records show initial complaints of numbness of both arms associated with bilateral epicondylitis in February 2001, which was 9 years after he separated from his second period of active duty, and there is no history of complaints more proximal to the time he left service in 1992. In this regard, she observed that the Veteran denied any symptoms on examination for the National Guard in May 2000, and he reported that his symptoms had been present for one week in February 2001. Thus, the examiner found that there was no indication from the subjective report of symptoms at such time that numbness had been ongoing since the Veteran was on active duty. She further noted that a follow up visit in May 2002 indicated the Veteran was diagnosed with mild carpal tunnel syndrome of the left wrist. The examiner indicated that the Veteran later was recalled to active service from February 2003 to November 2003 and, during this period, there were no complaints, no history of injury reported by the Veteran, nor any indication a bilateral hand disorder had its onset during such 9-month period of service. The examiner also noted that the Veteran reported bilateral hand numbness and right elbow pain, which were likely a continuous of the symptoms noted in 2001, in June 2004. She observed that the Veteran would later be diagnosed with left hand trigger finger and bilateral hand trigger finger in April 2005 and March 2006, respectively; however, prior evaluations did not show such condition. Moreover, the examiner indicated there were no symptoms consistent with trigger finger during the Veteran's active service periods. Thus, she found that his complaints of numbness of both hands in June 2004 was unrelated to the subsequently diagnosed bilateral trigger finger. The examiner further stated that trigger finger does not present as numbness of the hand; rather, such manifests as stiffness and popping of the affected finger. She further indicated that the numbness was instead related to the Veteran's underlying carpal tunnel syndrome that pre-existed his third period of active duty in 2003. Finally, the examiner observed that both trigger finger and carpal tunnel syndrome are typically caused by repetitive activities and are not unique to a specific duty in service. In this regard, she noted that the Veteran was also a police officer during periods of inactive service, and activities as a police officer can also cause the same conditions. In the May 2023 Board remand, the Board found that the October 2022 VA examiner failed to address the January 2012 VA treatment record reflecting that the Veteran was found to have an old, healed fracture of his fifth metacarpal despite being directed to do so in the June 2022 remand. Furthermore, while the VA examiner found that the Veteran's carpal tunnel syndrome pre-existed his third period of active duty in 2003, she did not apply the correct legal standard for rebutting the presumption of soundness. Specifically, on remand, the VA examiner was directed to opine as to whether the bilateral carpal tunnel syndrome clearly and unmistakably pre-existed the Veterans period of active duty in 2003; and if so, whether there is clear and unmistakable evidence that it did not undergo an increase in the underlying pathology therein, i.e., was not aggravated during service; and if there was an increase in the severity of such disorder, was such increase clearly and unmistakably due to the natural progress of the disease? Additionally, on remand, if there is no clear and unmistakable evidence that such disorder pre-existed such period of service, the VA examiner was to provide an opinion as to whether it is at least as likely as not that such disorder had its onset in, or is otherwise related to, such period of service, or manifested within one year of separation from such period of service, i.e., by November 2004? In June 2023, after a review of the VA e-folder, a VA examiner opined that the bilateral hand carpal tunnel syndrome, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, the examiner provided a conflicting rationale: [I]t is my medical opinion that the likelihood is less than approximately balanced or nearly equal that the Veteran's right CTS pre-exist the Veteran's entrance into his period of service from February 2003 to November 2003. The data in the 14608 pages of the efile clearly show the CTS starting in 2012 and there is nothing to support it pre-existing the [2003] era. The likelihood is less than approximately balanced or nearly equal that the CTS had its onset in, or is otherwise related to, such period of service, or manifested within one year of separation from such period of service, by November 2004. There is no pathoanatomical correlation or causation with CTS and a 5th metacarpal fracture. CTS would have impaired his ability to function and he would have had to seek care, like he did later, as it would have impacted all aspects of his life and impair his ability to serve. The notes from the VA system clearly show 2012 as an acute onset and based on this there is no nexus. Regarding direct service connection, the VA examiner opined that bilateral carpal tunnel syndrome and trigger finger were less likely than not incurred in or caused by the claimed in-service injury, event, or illness because there is no pathoanatomical correlation or causation with a healed metacarpal fracture and the development of carpal tunnel syndrome and/or trigger finger. The examiner failed to discuss whether the bilateral hand disorder manifested within one year of separation. The Board has reviewed all the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds that the criteria for entitlement to service connection for a bilateral hand disorder, to include trigger finger and carpal tunnel, are met.? The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's bilateral hand disorder, to include trigger finger and carpal tunnel syndrome, preexisted his third period of active military service from February 2003 to November 2003. The most competent and credible evidence of record shows that the Veteran underwent an enlistment examination prior to entrance into the period of service in question. Indeed, a report of medical examination performed in May 2000 for the National Guard shows that findings for the upper extremities were normal. The examination was absent of any notations of defects, infirmities, or disorders related to the bilateral hands. Therefore, with respect to a bilateral hand disorder, to include trigger finger and carpal tunnel syndrome, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). With regard to whether the Veran's disability clearly and unmistakably preexisted service, the evidence of record is unclear. The October 2022 VA examiner determined that the Veteran's bilateral hand numbness was related to underlying carpal tunnel syndrome that pre-existed his third period of active duty in 2003; however, as noted by the May 2023 Board remand, the examiner did not apply the correct legal standard. While the June 2023 VA examiner applied the correct legal standard when opining that bilateral hand carpal tunnel syndrome clearly and unmistakably existed prior to service, this examiner also provided a conflicting statement: "The data in the 14608 pages of the efile clearly show the CTS starting in 2012 and there is nothing to support it pre-existing the [2003] era." Here, the conflicting evidence of record illustrates that the Veteran's bilateral hand disorder did not clearly and unmistakably preexist service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). Turning back to the principles of direct service connection, the Board recognizes that the Veteran currently has a diagnosed disability of the bilateral hands, to include trigger finger and carpal tunnel syndrome. Thus, the first elements of service connection, both on a direct and presumptive basis has been established. See Shedden, 381 F.3d at 1167; 38?C.F.R. §§?3.303(a), 3.310. Importantly, carpal tunnel syndrome is entitled to service connection if it manifests to a compensable degree within one-year of service, 38 C.F.R. § 3.309(a). Notably, establishing presumptive service connection for carpal tunnel does not require evidence of a diagnosis during service or during the one-year presumptive period. 38 C.F.R. § 3.307(c); see Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). Here, the Board finds the Veteran's complaints of bilateral arm numbness and articulation began in February 2001, prior to the Veteran's third period of active duty in 2003. In 2004, within one year of separation, the Veteran continued complaints of bilateral hand numbness. The VA treatment records show that symptoms of a bilateral hand disorder, to include trigger finger and carpal tunnel syndrome, existed since service until the present. See April 2005, March 2006, April 2010, January 2012, April 2012, December 2014, March 2015, May 2015, and October 2015 VA treatment records. As such, the Board finds service connection based on continuity of symptomatology is warranted. See 38?C.F.R. §?3.303(b). As the full benefit of presumptive service connection is being granted on the basis of continuity of symptomatology since service, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.