Citation Nr: 1124816 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 09-35 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low spine disability. 2. Entitlement to service connection for bilateral carpal tunnel syndrome. 3. Entitlement to a rating in excess of 30 percent for status-post left total knee arthroplasty with revision arthroplasty. 4. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease. 5. Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Michael Viterna, Attorney ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1963 to August 1967. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The issues of increased evaluations for service-connected left and right knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. In a January 1994 rating decision, the RO denied service connection for a low spine disability; the Veteran did not appeal this determination within one year of being notified. 2. Evidence received since the January 1994 rating decision does not raise a reasonable possibility of substantiating the claim of service connection for a low spine disability. 3. The preponderance of the evidence is against a finding that current bilateral carpal tunnel syndrome is related to service. CONCLUSIONS OF LAW 1. The January 1994 RO decision that denied service connection for a low spine disability is final. 38 U.S.C.A. § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993). 2. New and material evidence has not been received sufficient to reopen the claim of service connection for a low spine disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. Bilateral carpal tunnel syndrome was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in August 2007, prior to the December 2007 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2010). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letter also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specific to requests to reopen, the Veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the August 2007 notice letter included the criteria for reopening the previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided, as the Veteran was informed about what evidence is necessary to substantiate the elements required to establish service connection for the claim on appeal that were found insufficient in the previous denial. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2010). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As to the claim for a low spine disability, the Board observes that VA has no specific duty to conduct an examination with respect to the claim on appeal requiring the presentation of new and material evidence to reopen it because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened). Since the claim decided herein involves whether sufficient evidence has been submitted to reopen previously disallowed claims for service connection, any questions as to the adequacy of the VA examination obtained in this case are moot. See Woehlaert v. Nicholson, 21 Vet. App. 456 (holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence). As described in further detail below, there is no indication from the new evidence that the Veteran's current low spine disability resulted from active service or is secondary to a service connected disability. As the new evidence does not address the elements that were found insufficient in the previous denial of the Veteran's claim, the Board finds that the newly submitted evidence is not so significant that it must be considered in order to fairly decide the merits of the Veteran's claim for a low spine disability. As to the issue of bilateral carpal tunnel syndrome, the Veteran has not been afforded a VA medical examination in connection with that claim. However, no such examination is necessary. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. As will be discussed in detail below, the record is missing critical McLendon elements (2) and (3): evidence of an event, injury, or disease occurring in service, and an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service, The Veteran has also declined the opportunity to present testimony before a Veterans Law Judge. In light of the foregoing, the Board concludes that VA has met its duties to notify and assist under the applicable regulations. A Low Spine Disability In a January 1994 rating decision, the RO denied service connection for a low spine disability. The Veteran was informed of that decision and he did not file a timely appeal. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. The January 1994 decision is final because the Veteran did not file a timely appeal. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993). The claim of entitlement to service connection for a low spine disability may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 2002); Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in July 2007. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 3 8 C.F.R. § 3.156(a) (2010). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before VA at the time of the prior final decision consisted of service treatment records, VA and private treatment records, and VA examination reports. Service treatment records included an October 1966 record reflecting the Veteran's complaints of low back pain. Post-service, private treatment records showed that the Veteran injured his spine while on the job in 1989. During a September 1993 VA examination, the Veteran reported that he injured his spine in service during a fall in 1963 when he injured his knee but that his spine did not become bad until after he reinjured it post-service. In denying the Veteran's service connection claim in January 1994, the RO essentially found that there was no evidence of a relationship between the current low spine disability and service, and or a service-connected disability. The RO pointed out that by the Veteran's own admission, his low spine injury was in no way related to a service-connected injury. To reopen the claim, the new evidence must show that the Veteran has a low spine disability related to service and/or a service-connected disability. Evidence received since the last final decision for the claim of service connection includes VA treatment records showing assessments of and treatment for a current low spine disability. These records do not constitute evidence that raises a reasonable possibility of substantiating the claim for service connection. Significantly, none of these records demonstrate a relationship between the current low spine and service, and/or a service-connected disability. Neither may the claim be reopened on the basis of the statements submitted by the Veteran indicating that he currently has a low spine disability related to service and/or his service-connected knee disabilities. As a lay person, he is without ostensible medical expertise and is not competent to provide a diagnosis or opine on a matter requiring knowledge of medical principles. Bostain v. West, 11 Vet. App. 124 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Routen v. Brown, 10 Vet. App. 183 (1997) (noting that a layperson is generally not capable of opining on matters requiring medical knowledge). In Routen v. Brown, the United States Court of Appeals for Veterans Claims (Court) noted that, "[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108." Id. at 186. Moreover, the Veteran's statements are similar to statements provided in connection with his prior claim. They are essentially cumulative in nature. Although the Veteran has submitted new evidence that was not before the RO January 1994, such evidence is not material to the claim and does not warrant reopening of the previously denied claim. There are no additionally received records showing that arthritis of the spine manifested in service, within a year of service discharge, or competent evidence showing that any such current disability is related to service and/or a service-connected disability. Thus, the claim for service connection for a low spine disability is not reopened, and the benefit remains denied. Bilateral Carpal Tunnel Syndrome The Veteran essentially contends that he currently has bilateral carpal tunnel syndrome related to service. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2010). The record shows that the Veteran currently has bilateral carpal tunnel as noted throughout the record. Hickson element (1) is accordingly met as to a current disorder. With respect to Hickson element (2), in-service disease or injury, service treatment records are negative for any complaints or findings of bilateral carpal tunnel syndrome. Service treatment records reflect one acute and transitory left wrist complaint in April 1987; however, there is no indication of a chronic disability or carpal tunnel syndrome. Significantly, the examination report prior to service discharge showed that the upper extremities were normal. In the absence of evidence of in-service incurrence or aggravation of bilateral carpal tunnel syndrome, Hickson element (2) is not met and service connection may not be granted for this disorder on this basis alone. For the sake of completeness, the Board will also address the remaining Hickson element, medical nexus. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (noting that the Board has the fundamental authority to decide in the alternative). With respect to Hickson element (3), medical nexus, the Veteran has submitted no competent medical nexus opinion relating his currently diagnosed bilateral carpal tunnel syndrome to his military service, and none otherwise appears of record. Moreover, in the absence of a carpal tunnel syndrome in service, a medical nexus opinion would seem to be an impossibility. To the extent that the Veteran himself contends that a medical relationship exists between his current disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, statements as to a possible relationship between the Veteran's current bilateral carpal tunnel syndrome and his military service is an etiological question unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 finding that a lay witness is capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (stating that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render medical opinions regarding the etiology of his bilateral carpal tunnel syndrome. See 38 C.F.R. § 3.159 (a)(1) (2010) (noting that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In this case, the Veteran has not even set forth a theory upon which his current disability began, or how it is related to service. In any case, he is not competent to ascertain the etiology of a neurological condition such as bilateral carpal tunnel syndrome, and the causative factor for such is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). To the extent that the Veteran may try to contend that his bilateral carpal tunnel syndrome has continued since service, the Board is of course aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. However, there is no indication of bilateral carpal tunnel syndrome for years after service. On the contrary, the first complaints of such were not noted until 2007, which is 40 years after service discharge. In order to establish chronicity and continuity of symptomatology, supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) (noting that there must be medical evidence on file demonstrating a relationship between the Veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). Such evidence is lacking in this case. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Accordingly, service connection may not be established via continuity of symptomatology under 38 C.F.R. § 3.303(b). Therefore, Hickson element (3), medical nexus, would also not be satisfied and the claim fails on this basis. In conclusion, for the reasons and bases expressed above, the Board finds that a preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral carpal tunnel syndrome. The benefit sought on appeal is accordingly denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for a low spine disability is denied. Service connection for bilateral carpal tunnel syndrome is denied. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran was afforded an examination in August 2007 to assess the current severity of his service-connected left and right knee disabilities. However, review of the examination report shows that the examiner did not address evidence of pain, weakened movement, excess fatigability, or incoordination associated with functional impairment as a result of pain on repetitive use as contemplated by DeLuca v. Brown, 8 Vet. App. 202 (1995). See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Therefore, on remand, the Veteran must be afforded another examination for his knee disabilities to include taking into account any functional loss due to repetitive use. The issue of entitlement to TDIU is inextricably intertwined with the claims of increased disability ratings for service-connected left and right knee disabilities. In other words, if increased disability ratings are granted for the claims, this may impact the TDIU claim. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (noting that where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding that two or more issues are inextricably intertwined if one claim could have significant impact on the other). Action on the Veteran's TDIU claim is, therefore, deferred. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination to determine the current level of severity of his left and right knee disabilities. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all AMIE protocols for rating knee disabilities. All indicated studies, including X-ray and range of motion studies in degrees, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should indicate whether, and to what extent, the Veteran has any instability in either knee. The examiner should also provide an opinion concerning the impact of the left and/or right knee disabilities on the Veteran's ability to work. The supporting rationale for all opinions expressed must be provided. 2. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of his claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims of increased ratings for left and right knee disabilities, and a TDIU must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs