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Board Committed Multiple Legal Errors When Denying Service Connection for Numbness of the Hands and Fingers

May 14, 2019
Court Win - Service Connection cause of death

Factual and Procedural History

The veteran served honorably in the United States Army for 37 years and was deployed to Southwest Asia during the Persian Gulf War during the early 1990s.  Specifically, in October 1990, he was sent to Saudi Arabia where he served until June 1991.  While there, he was exposed to various toxins, as his duties included painting vehicles with chemical agent resistant coating (CARC).  Importantly, a National Guard Memorandum acknowledges that CARC is a highly toxic paint and prolonged exposure has been linked to, among other things, brain and nervous system damage, headaches, and muscle problems.  In 1993, the Veteran sought service connection for a left knee condition, a facial rash, and a lung condition.  The first two claims were granted, but the third was denied.

Throughout the 1990s, VA treatment records reflected the Veteran’s complaints of hand numbness as well as other problems including temporary memory loss.  In 1997, a National Guard line of duty investigation determined that, because of a lack of proper protective equipment, the Veteran was directly exposed to CARC, as well as ash and residue from burning oil fires and insecticides, during his service in Saudi Arabia.  The investigator concluded that his medical conditions (i.e. rash, memory problems, and numbness of the hands, fingers, arms, and legs) were incurred in the line of duty.  A few years later, he sought to reopen his lung condition claim and obtain disability compensation for hand numbness, memory loss, vision loss, and sinus problems.  In 2001, VA declined to reopen his previous claim and denied service connection for the other conditions, including as due to CARC exposure.  In 2002, the Veteran attended a VA examination for his peripheral nerves in which he reported finger and hand numbness for years, and stated that it was not a continuous thing, but occurred two or three times per month.  The examiner found no objective evidence of any pathology and VA continued its denial.  The Veteran then appealed the denial of service connection for numbness of the hands and fingers to the Board of Veterans’ Appeals, stating that his health had been deteriorating since the Gulf War.

At a 2005 Board hearing, the Veteran and his wife testified that his hand numbness, along with other problems like memory loss, arose right after he served in Desert Storm and began to gradually worsen.  The Board issued a decision in 2006 that remanded the issue of service connection for hand numbness.  The Board requested a new VA examination for this condition in accordance with Gulf War protocols.  This examination took place the same year and the examiner concluded that the Veteran’s hand numbness could be secondary to either a vitamin B-12 deficiency or exposures to chemicals during the Gulf War, and thereafter opined that it was at least as likely as not that his hand numbness is due to service.  However, a contemporaneous VA examination recorded that his hand numbness started approximately six months after he returned from Desert Storm.  That examiner opined that the condition was less likely than not linked to his in-service toxic exposure.  As a result, the Board remanded the Veteran’s claim in 2011, calling for new medical opinions as the 2006 opinions contradicted each other and neither opined whether numbness could constitute an undiagnosed illness.

In 2014, the Veteran attended another VA examination in which the physician concluded it was less likely than not that his carpal tunnel syndrome, which caused hand numbness, was caused by in-service exposure to CARC or other toxins.  Specifically, the physician reasoned that exposure to such environmental factors usually causes damage to the central nervous system, but carpal tunnel syndrome is a disorder of the peripheral nervous system.  More so, it is caused solely by pressure on the median nerve within the structures of the wrist, an anatomical problem, that has nothing to do with CARC exposure.  Based on such facts, the physician said that the conclusions in the 1997 line of duty determination were not valid.

Board denies service connection for hand and finger numbness

In August 2017, the Board issued a decision that denied service connection for numbness of the hands and fingers.  In its decision, the Board determined that the evidence of record did not demonstrate the following: (1) a link between the condition and in-service exposure to toxins, as required for direct service connection; (2) a credible history of hand numbness since service, as required for service connection based on continuity of symptomatology; or (3) the existence of a qualifying chronic disability, as required for presumptive service connection under provisions related to the Gulf War.  Specifically, the Board determined that the 2014 unfavorable nexus opinion was the most probative evidence and found that the Veteran’s statements about the date his hand numbness began were inconsistent and lacked specificity.  Finally, the Board concluded that, since his hand numbness had been attributed to carpal tunnel syndrome, a diagnosed disability with known pathology, it couldn’t qualify as an undiagnosed illness for Gulf War presumptions.

CCK appeals to the CAVC and argues against the Board’s findings

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied service connection for the Veteran’s hand numbness.  CCK argued that the Board committed various errors when it adjudicated three theories of service connection for hand numbness: direct service connection, service connection based on chronicity and continuity of symptomatology, and presumptive service connection under provisions applicable to Gulf War veterans.

Direct Service Connection

For the theory of direct service connection, CCK contended that the Board ignored the binding nature of the line of duty determination and improperly dismissed the favorable 2006 VA opinion as speculative.

Service Connection Based on Continuity

Here, CCK asserted that the Board inadequately explained why it found the Veteran’s statements regarding his history of hand numbness not credible, failed to consider his wife’s testimony, and improperly relied on the fact that a hand-numbness claim was not filed until 1997.

Presumptive Service Connection

CCK argued that because a diagnosed illness without conclusive pathophysiology or etiology may also be presumed related to Gulf War, and because the evidence here identified carpal tunnel syndrome’s pathophysiology but not its etiology, the presumption should apply to his hand numbness.

Court addresses CCK’s arguments

Although the Court did not agree with CCK’s argument regarding direct service connection, it did agree in regards to the theory of service connection based on the continuity of symptomatology.  Specifically, the Court agreed that the Board erred in discounting the Veteran’s credibility, and therefore erred in finding that he was not entitled to this type of service connection.  The Court further found that the Board overlooked potentially favorable statements from the Veteran’s wife that corroborated those of the Veteran.  Since the Court agreed remand was warranted regarding this theory of service connection, it declined to address the theory of presumptive service connection.  Ultimately, the Court determined that the Board needs to reconsider its credibility assessment on remand and then readjudicate the issue of service connection for the Veteran’s hand numbness.

 

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