Citation Nr: 23051150 Decision Date: 09/15/23 Archive Date: 09/15/23 DOCKET NO. 20-14 557 REMANDED Service connection for bilateral carpal tunnel syndrome is remanded. REASONS FOR REMAND The Veteran honorably served on active duty in the United States Navy from November 1995 to October 1998 and in the United States Air Force from November 2003 to April 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Service connection for bilateral carpal tunnel syndrome is remanded. First, remand is required because there is an approximately three-year gap of treatment records in the file, from November 2017 to November 2020. VA treatment and VA authorized non-VA treatment records must be obtained before final adjudication these issues. See Sullivan v. McDonald, 815 F.3d; 786, 790-91 (Fed. Cir. 2016); Turner v. Shulkin, 29 Vet. App. 207, 210 ; see also Jones v. Wilkie, 918 F.3d 922, 926-27 (Fed. Cir. 2019). A remand is required to allow VA to obtain them. Second, the Veteran has not yet been afforded a VA examination. VA is required to provide examination when there is insufficient medical evidence to decide the claim, but the record otherwise contains competent evidence of a current disability or recurrent symptoms, evidence of an in-service event, and evidence of an indication of a nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i). In this case, the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. See January 2023 VA Memo. As such, a medical examination and opinion is required to determine whether the Veteran's neurological signs and symptoms are presumptively related to service in Southwest Asia. See 38 C.F.R. § 3.317. Further, since this matter was last before the agency of original jurisdiction (AOJ), a new law has been enacted requiring VA provide a veteran with a medical examination and secure a nexus opinion in connection with a claim for service connection when there is evidence of a disability and evidence of participation in a toxic exposure risk activity (TERA) during active military service, but that evidence is not sufficient to grant service connection for the disability. 38 U.S.C. § 1168. This is a lower standard than articulated in 38 U.S.C. § 5103A(d) and McLendon. In this case, the Veteran is presumed to have participated in a TERA, see December 2022 VA Memo, and the Secretary has not determined there is no indication of an association between the Veteran's claimed carpal tunnel syndrome and the TERA. Accordingly, a remand is required to obtain an examination and opinion. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from November 2017 to November 2020 and from November 2021 to the present. 2. After completion of directive one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran's claimed carpal tunnel syndrome. Based on the factual evidence of record and the examination, the examiner must provide an opinion that responds to the following: (a.) Please identify the Veteran's bilateral upper extremity neurological condition(s) by diagnosis(es). Please provide a complete explanation (rationale) if the diagnosis of carpal tunnel syndrome is not given. If the Veteran's signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. (b.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed carpal tunnel syndrome was incurred in active military service, to include through the synergistic, combined effect of all toxic exposure risk activities? (c.) For EACH of the diagnoses related to the claimed carpal tunnel syndrome, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the EITHER the etiology OR the pathophysiology is inconclusive? The rationale provided must be based on the Veteran's specific case and cannot be based on the etiology or pathophysiology of the disease or disability population as a whole. (d.) For EACH of the diagnosed diagnoses related to the claimed carpal tunnel syndrome, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that EITHER the etiology OR the pathophysiology (but not both) is partially understood? The rationale provided must be based on the Veteran's specific case and cannot be based on the etiology or pathophysiology of the disease or disability population as a whole. (e.) If it is not possible to identify the Veteran's disability by a diagnosis, please identify the neurological signs and symptoms that are perceptible to an examining physician and/or other non-medical indicators that are capable of independent verification, but that cannot be attributed to a known clinical diagnosis. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? (Continued on the next page) ? If the examiner cannot provide answers because further information or diagnostic studies are required, reasonable steps to obtain this information or reasonable diagnostic studies should be performed before concluding that the answer cannot be provided. S. F. Keane Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lambert, Sarah E. 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.