BVA9507203 DOCKET NO. 91-45 771 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for otitis media. 2. Entitlement to service connection for residuals of a back injury, to include a fracture of the "tailbone" and "whiplash." 3. Entitlement to restoration of service connection for right carpal tunnel syndrome, postoperative. 4. Entitlement to restoration of service connection for left carpal tunnel syndrome, postoperative. 5. Entitlement to restoration of service connection for hearing loss in the left ear. 6. Entitlement to an increased (compensable) evaluation for residuals of an exostosis of the left medial tibia, postoperative. 7. Entitlement to a compensable evaluation for multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 (1994). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michele Florack, Associate Counsel INTRODUCTION The veteran had active service from April 1972 to January 1980. In light of the different fact patterns and different outcomes for each wrist, the issue of entitlement to restoration of service connection for bilateral carpal tunnel syndrome, has been separated into two issues of entitlement to restoration for carpal tunnel syndrome of the right and left wrists. The issues of entitlement to service connection for otitis media, entitlement to service connection for residuals of a back injury, to include a fracture of the "tailbone" and "whiplash," entitlement to an increased (compensable) evaluation for residuals of an exostosis of the left medial tibia, postoperative, and entitlement to a compensable evaluation for multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 will be addressed in the remand portion following the decision. In addition, the issues of restoration of service connection for left carpal tunnel syndrome and entitlement to restoration of service connection for hearing loss in the left ear have been developed and certified for appellate review. For reasons that will be evident in the following discussion, those issues will be held in abeyance while the Regional Office (RO) follows the instructions for further development of the issues contained in the REMAND below. CONTENTIONS OF APPELLANT ON APPEAL In essence, the veteran's contention as to the right wrist carpal tunnel syndrome is that service connection is warranted, stressing that he sought treatment for such disorder in service. He argues that the decision of December 1989 that granted service connection for that disorder was not clearly and unmistakably erroneous, and that service connection should be restored. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board the evidence supports a restoration of service connection for right carpal tunnel syndrome. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the issue of entitlement to restoration of service connection for right carpal tunnel syndrome has been obtained. 2. The veteran had right carpal tunnel syndrome prior to service, symptomatology associated with carpal tunnel syndrome of the right wrist was noted in service, and surgery for release of right carpal tunnel syndrome was performed after service. 3. Clear and unmistakable error did not exist as to the grant of service connection for the veteran's carpal tunnel syndrome of the right hand, postoperative, in rating decision of December 1989. CONCLUSION OF LAW Restoration of service connection for right carpal tunnel syndrome, postoperative, is warranted. 38 U.S.C.A. §§ 1111, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.105(d), 3.306 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Review of the record indicates that the veteran has submitted well-grounded, or plausible claims. 38 U.S.C.A. § 5107(a) (West 1991). The Department of Veterans Affairs (VA) therefore has a duty to assist the veteran in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81-82 (1990). In this regard, the Board notes that the veteran's service medical records have been obtained and that post-service clinical data have been associated with his claims folder. The Board finds that the facts relevant to the issue of restoration for service connection for right carpal tunnel syndrome have been properly developed and that the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). On appellate review, there appear to be no areas in which further development on that issue might be fruitful. Service medical records show that there were no complaints or findings of a right wrist abnormality or disability on November 1971 when the veteran was examined for enlistment. In January 1976, the veteran complained of a recurrence of symptoms associated with carpal tunnel syndrome of the right wrist, including tingling, numbness and loss of grip strength. Both the right hand and arm were also affected. He reported a history of surgery for carpal tunnel syndrome on the right wrist in February 1968. On examination in December 1979 for separation from service, no pertinent abnormalities were found. Subsequent to service, a report of the veteran's November 1988 VA hospitalization reflects a history of carpal tunnel syndrome for the past several years and release thereof in the past. Examination revealed carpal tunnel syndrome on the right, and the veteran underwent release of such during hospitalization. On VA examination in November 1989, the veteran reported a history of carpal tunnel surgery on the "left" wrist in 1968 and 1988 and on the "right" wrist in 1989, (suggesting that the history of each wrist was switched). A X-ray study of the wrists revealed normal findings. Orthopedic examination led to diagnoses including status-post bilateral carpal tunnel releases, healed, asymptomatic. Entitlement to service connection was allowed for status-post bilateral carpal tunnel release by a December 1989 rating decision. A February 1991 rating decision effectuated a severance of service connection for bilateral carpal tunnel syndrome, concluding that clear and unmistakable error had been committed in allowing the benefit. Pertinent VA regulations provide that service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being on the Government). 38 C.F.R. § 3.105(d) (1994). The United States Court of Veterans Appeals (Court) defined clear and unmistakable error, under 38 C.F.R. § 3.105(a), as the type of error which, had it not been made, would have manifestly changed the outcome at the time it was made. Russell v. Principi, 3 Vet.App. 310, 313 (1992). Clear and unmistakable errors are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Russell, at 313-314. The mistake must be an error of law and not of fact, and must be obvious or undebatable. The question now before the Board is whether the December 1989 rating decision that granted service connection for right carpal tunnel syndrome was clearly and unmistakably erroneous. If not, the February 1991 severance of benefits cannot be upheld. To establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred in wartime service, or in the case of a preexisting injury or disease aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). The Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 1991). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1989). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during wartime service. 38 C.F.R. § 3.306(b)(1989). This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Id. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id. For peacetime service, the specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. 38 C.F.R. § 3.306(c) (1989). In this case, the service medical records indicate a pre-service history of carpal tunnel syndrome on the right, including surgical release on the right wrist in 1968. Clinical records of pre-service manifestations of the disorder were not of record. When the veteran was examined for enlistment in November 1971, he failed to identify any disability of the right wrist and on physical examination, there were no findings related to the right wrist. History provided by the veteran in service of the pre- service surgery rebuts the presumption of soundness. However, service medical records show recurrence of symptomatology in service, and the disorder was shown after service, when additional surgical correction was required. It is important to note that, when the veteran was seen in service in 1976, he reported the history of surgery in 1968 and stated that "it is starting to act up again." This could indicate that the disorder was asymptomatic from the time of the surgery in 1968 until the veteran was seen in 1976. A finding of aggravation or no aggravation during service must take into account the manifestations of the disorder prior to, during, and after service. Further, if an increase in severity is shown in service, the presumption of aggravation must be rebutted by clear and unmistakable evidence for wartime service, or for peacetime service, a specific finding must be made that the increase in severity was due to natural progress, under the regulations in effect in 1989 at the time that the decision was made. Given those provisions, the fact that the disorder was symptomatic in service, the fact that there was no evidence concerning any pre- service manifestations of the disorder, and the fact that surgery was performed post-service, albeit years post-service, the Board cannot conclude that it was clearly and unmistakably erroneous for the RO to have granted service connection for right carpal tunnel syndrome on the basis of aggravation. Under the circumstances of the case, the Board concludes that a material mistake was not committed, and that the December 1989 rating decision was not fatally flawed at the time rendered. Russell. Although one may disagree with VA's original ratings and interpretation of the facts, a difference of opinion is not clear and unmistakable error. Thompson v. Derwinski, 1 Vet.App. 251 (1991). Thus, the February 1991 rating decision was incorrect in its determination that the December 1989 rating decision was clearly and unmistakably erroneous. 38 C.F.R. § 3.105 (1994). That is, clear and unmistakable error is not found in the rating decision of December 1989. ORDER Restoration of service connection for right carpal tunnel syndrome, postoperative, is granted. REMAND In that service connection is restored for right carpal tunnel syndrome, the veteran's claim for an increased rating of that disorder, received in April 1990, is now an issue properly before the local rating board. The issue of a compensable rating under § 3.324 is inextricably intertwined with all increased rating claims. The Court has held that issues which are inextricably intertwined should be developed for timely appellate review. Harris v. Derwinski, 1 Vet.App. 180 (1991); Grivois v. Brown, 6 Vet.App. 136 (1994). Since the case is being remanded, the veteran can be given another opportunity to report for the previously requested examination. For the reasons noted, the Board is of the opinion that additional clinical data may prove helpful in evaluating the veteran's claim. In order to fully assist the veteran in the development of his case, therefore, and extend to the veteran every equitable consideration, this case is therefore REMANDED for the following: 1. After any necessary information and authorization are obtained from the veteran, duplicates of any post-1990 treatment, VA or private, inpatient or outpatient, associated with the veteran's otitis media, service-connected residuals of an exostosis of the left medial tibia, postoperative, and other service-connected disabilities should be obtained by the RO and incorporated into the claims folder. The veteran should also be given an opportunity to submit any additional evidence that he may have concerning his claim for service connection for residuals of a back and neck injury. 2. After any necessary information and authorization are obtained from the veteran, duplicates of any records associated with the compression fracture and disc protrusions at the thoraco-lumbar junction, including any pre-service evidence, and records associated with the veteran's post-service motor vehicle accident noted by the veteran to have occurred in approximately 1981 or 1982, should be obtained by the RO and incorporated into the claims folder. 3. The RO should schedule a special orthopedic examination to determine the nature and severity of the veteran's service-connected residuals of an exostosis of the left medial tibia, postoperative; all clinical findings referable to coccygodynia should also be recorded. The examination should be conducted in accordance with the appropriate provisions of the VA's Physician's Guide for Disability Evaluation Examinations. All indicated studies should be conducted. The examination report should include a full description of the veteran's symptoms, clinical findings, and any associated functional impairment. All findings should be recorded in detail, including range of motion of any joint affected by the exostosis of the left medial tibia, postoperative, and coccygodynia, recorded in degrees. The examiner should offer an opinion concerning the etiology of any abnormality of the coccyx found on examination or shown on X-ray study. A comprehensive report, which represents consideration of the aforementioned factors, as well as the history of the veteran's disability, should be provided. The veteran's claims folder should be provided to the examiner for review prior to the examination. 4. The RO should then again review the veteran's claims for service connection for otitis media and for the residuals of a back and neck injury, to include fracture of the "tailbone" and "whiplash," as well as the veteran's claim for increased rating for the residuals of exostosis of the left medial tibia, postoperative, an increased rating for right carpal tunnel syndrome, and the claim for a compensable evaluation under 38 C.F.R. § 3.324 (1994). All pertinent law, regulations, and Court decisions should be considered, including Schafrath v. Derwinski, 1 Vet.App. 589 (1991). If any claim remains denied, the veteran and his representative should be provided with a supplemental statement of the case, which includes all pertinent law and regulations and a full discussion of action taken on the veteran's claim, consistent with the Court's instruction in Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Reasonable response time should be allowed. The case should then be returned to the Board, if in order, after compliance with customary appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the ultimate decision warranted in this case, pending completion of the requested development. The issues of restoration of service connection for left carpal tunnel syndrome, postoperative, and restoration of service connection for hearing loss in the left ear, are deferred, pending the return of the veteran's case to the Board. WILLIAM J. REDDY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).