Citation Nr: 1322106 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 01-10 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral shoulder disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for bilateral carpal tunnel syndrome. 4. Entitlement to service connection for a sacroiliac disorder. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from March 1960 until his retirement in September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in December 2000 and May 2005 by the Department of Veterans Affairs (VA) RO in New Orleans, Louisiana. The December 2000 rating decision denied service connection for a bilateral shoulder disorder; a bilateral knee disorder; bilateral carpal tunnel syndrome; and a sacroiliac disorder. The May 2005 rating decision denied entitlement to TDIU. Jurisdiction of the case is now with the Montgomery RO. The Veteran testified before a Veterans Law Judge (VLJ) at a March 2002 Travel Board hearing, and before an Acting VLJ in February 2010. Both of these individuals have since retired from the Board. In April 2004, and again in October 2010, the Board remanded the claims for additional development, including provision to the Veteran of a VA examination. No further development is needed with regard to the claims for service connection for a bilateral knee disorder, a sacroiliac disorder, and bilateral carpal tunnel syndrome; or the claim for TDIU. In May 2013, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Montgomery, Alabama. A transcript of that hearing, and of the two prior hearings, is in the claims file. The issue of service connection for a bilateral shoulder disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a left and/or right knee disability, diagnosed as degenerative arthritis, was incurred in or aggravated by active duty service or manifested to a compensable degree within one year following service discharge. 2. The preponderance of the evidence is against a finding that carpal tunnel syndrome was incurred in or aggravated by active duty service. 3. The preponderance of the evidence is against a finding that a claimed sacroiliac disability was incurred in or aggravated by active duty service. 4. The Veteran's service-connected psychiatric disability, alone, is of sufficient severity to produce unemployability. CONCLUSIONS OF LAW 1. A bilateral knee disability, to include degenerative arthritis, was not incurred in or aggravated by service, and may not be presumed to have been incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Bilateral upper extremity carpal tunnel syndrome was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. A claimed sacroiliac disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 4. The criteria for a grant of TDIU are met. 38 U.S.C.A. §§ 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirement was accomplished in letters sent in May and November of 2004; October 2010; and June 2011. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). VA has also complied with its duty to assist. All relevant facts have been properly developed, and all evidence necessary for equitable resolution of the appeals have been obtained. The Veteran's service treatment records and VA treatment records are in the claims file. Private medical records have also been obtained and are in the claims file. He was also afforded a VA examination, and the Board has reviewed this evidence and finds it to be adequate for a decision in this matter. See, e.g., Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (providing, basically, that a medical [examination] is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). In addition to the foregoing, the Veteran has been accorded a Decision Review Officer hearing, and three Board hearings; most recently in May 2013. During the 2013 hearing the Veteran's representative and the undersigned Veterans Law Judge explained the issues and asked the Veteran questions to ascertain the nature of any in-service events and symptoms. The Veteran's representative and the Veterans Law Judge also asked questions to draw out the current nature of the Veteran's complaints, and the hearing focused on the elements necessary to substantiate his claims. Neither the Veteran nor his representative has suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claims was identified by the Veteran and has been obtained. Therefore, the Board finds that, consistent with Bryant v. Shinseki, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings). In short, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Accordingly, the Board concludes that all reasonable efforts have been made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. See Pelegrini, 18 Vet. App. at 121; Conway, 353 F.3d. at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 C.F.R. § 3.303(a). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (2013). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). A. Bilateral knee disorder During his March 2002 Board hearing the Veteran testified that he had been told that his knee problem was related to his sacroiliac problem, which he said started in 1992 while he was working at the Post Office. See March 2002 Hearing Transcript, p. 5; but see February 2010 Hearing Transcript, pp. 18-20 (Veteran's testimony that his knee problems began in 1997 or 1998). During a Social Security disability medical (chronic pain) evaluation in February 2003 he complained of knee pain; and medical records dating from August 2005 advise of right knee arthroplasty. The Veteran reports that he can walk, but is no longer able to run. Service treatment records include a couple of entries related to right knee pain, one in March 1969, and the other (a negative x-ray record) in March 1972, but there is no other record of pain in either knee prior to 1990 (see May 1992 federal civilian medical record of occasional left knee pain for two years); 18 years after the last in-service record, and long after the Veteran's 1983 retirement from active duty service. The Board finds this to be highly probative evidence against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. And there is no probative opinion evidence in support of the claim. On VA examinations in December 2004 and June 2007, the examiners noted that the Veteran had undergone a total right knee replacement in 1994, and that the knee had been braced since that time. X-rays in November 2004 of the right knee only revealed moderate to severe degenerative changes. Diagnosis was degenerative joint disease of the right knee. On VA examination in February 2011, the diagnosis was bilateral knee degenerative changes. According to the 2011 examiner, the Veteran complained of bilateral knee pain, and reported that his right knee began buckling when he was lifting sacks at the post office in New Orleans. The examiner then stated that the Veteran's bilateral knee arthritis was not related to service. To the extent that the Veteran suggests that there may be a causal relationship between his post-service knee complaints and his service, the "nexus" requirement, the Board is not persuaded, as the Veteran himself has testified, under oath, that his knee problems are related to other factors, i.e., running and as a consequence of a sacroiliac disability. (See March 2002 hearing transcript). Likewise, the Veteran is not show to have any medical expertise to opine with any authority on the cause of his disability. The weight of the evidence is consequently against the claim, as the record shows only 2 instances of knee complaints in service, followed by an absence of complaints for nearly 20 years at which time, the complaints were indicated to have begun 2 years earlier. This, together with the opinion of a VA examiner that the Veteran's current disability was unrelated to service renders the greater weight of the evidence against the claim. In these circumstances, a basis upon which to establish service connection has not been presented and the appeal is denied. B. Bilateral carpal tunnel syndrome As for the Veteran's claim for carpal tunnel syndrome, there is no record of this disorder in service. Indeed, during his March 2002 Board hearing the Veteran testified that his carpal tunnel [wrist] pain started in 1991 or 1992 while he was working at the Post Office. See March 2002 Hearing Transcript, p. 5. This is highly probative evidence against the Veteran's claim. Although the Veteran was diagnosed with carpal tunnel syndrome in 1992 (see, e.g., June 1992 EMG finding/diagnosis of bilateral carpal tunnel syndrome), this lapse in time after his separation from service militates against a finding of service connection. Maxson, 230 F.3d 1330 (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. There is also no probative opinion evidence that links the Veteran's carpal tunnel syndrome, diagnosed after his military retirement, to service; and, indeed, such a link is flatly refuted by the February 2011 VA examiner. The Board finds the 2011 examiner's opinion, which is not contradicted by any other medical evidence of record, to be highly probative evidence against the Veteran's claim. Additionally, to the extent that the Veteran suggests that there may be a causal relationship between his carpal tunnel syndrome and his service, carpal tunnel syndrome is not a condition that is capable of lay observation, as neurological testing is required for its diagnosis. The determination as to the presence or diagnosis of carpal tunnel syndrome is therefore medical in nature; that is, not capable of lay observation, and competent medical evidence is needed to substantiate the claim. And it is not argued or shown that the Veteran is qualified through specialized education, training, or experience to offer a diagnosis of carpal tunnel syndrome or an opinion as to whether his carpal tunnel syndrome, diagnosed long after his retirement from active duty service, is related to service. The weight of the evidence is consequently against the claim. Owens, 7 Vet. App. 429. Service connection for carpal tunnel syndrome is therefore not warranted and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. C. Sacroiliac spine disorder Service treatment records contain a few records of low back pain, including an October 1968 record of a pulled back muscle/sprain, and an August 1971 record of low back pain in the right side of the back after strenuous exercise, but there is no record of any complaints, diagnosis, or treatment relating to the sacroiliac during service. In October 1997, the Veteran underwent back surgery at L4-5, following a June 1997 injury. See Workers' Compensation Form CA-7b, dated March 16, 1998. See also private neurosurgeon's August 6, 1997 letter to Veteran's employer (advising that the Veteran "was injured on the job on 6/25/97 lifting mail buckets," and that the Veteran "tells me that about five years ago he had a back injury and was diagnosed as having a 'nerve deficit' as a result."). Additionally, during an August 1999 VA examination, the Veteran stated that his low back pain began in June of 1997. In any event, this evidence pertains to the lower lumbar spine; not the sacroiliac. There is, however, evidence of a bilateral hip (iliac) disorder, but this issue is not on appeal. VA treatment records advise of arthroplasty of the left hip in 2005, and the right hip in 2007. In an April 2008 rating decision the RO denied service connection for bilateral hip arthroplasty. In December 2008, the Veteran stated that he was withdrawing his claim for service connection for his bilateral hips. According to the Veteran, his sacroiliac disorder began years after his retirement from active duty service. During his March 2002 Board hearing, the Veteran testified that his "sacroiliac went out" in 1992 while he was working at the Post Office. See March 2002 Hearing Transcript, p. 4. This obviously militates against a finding of service connection. There is also no probative opinion evidence of a link to service. Indeed, according to the February 2011 VA examiner, the low back strain during service resolved; and the Veteran's post-service lower back complaints (which eventually required surgery) were related to the heavy lifting that the Veteran did during his civilian employment at the Post Office. The Board finds this evidence, which is not contradicted by any other medical evidence of record, and which is indeed supported by the Veteran's admissions and physician's findings in post-service Workers' Compensation records, to be highly probative evidence against the claim of service connection. To the extent that the Veteran suggests that there may be a causal relationship between his claimed sacroiliac disorder and his duties service, such an implication would constitute the Veteran's opinion, but such an opinion would require specialized education, training, or experience, which has not been factually established; and there is no probative medical evidence of record that supports his contention. The Veteran's lay opinion regarding a nexus to service is therefore accorded no probative weight. The weight of the evidence is consequently against the claim. See Owens, 7 Vet. App. 429 (providing that it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). Accordingly, service connection for a claimed sacroiliac spine disorder is not warranted and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Entitlement to TDIU It is VA's policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. The Veteran's employment history, educational and vocational attainment, as well as particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors such as employment history, as well as educational and vocational attainments, should be considered. Id. For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word substantially suggests intent to impart flexibility into a determination of a veteran's overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). As the Veteran's service-connected psychiatric disability has been rated as 50 percent disabling since July 8, 1999, and 70 percent disabling since July 13, 2011, and as the Veteran has had a total combined evaluation for compensation of at least 70 percent since July 8, 1999, the percentage criteria for TDIU on a schedular basis are met throughout the appeal period. 38 C.F.R. § 4.16(a). The issue then is whether the Veteran's service-connected disability(s) alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529; Pratt v. Derwinski, 3 Vet. App. 269, 272. During a December 2008 Decision Review Officer (DRO) hearing the Veteran testified that he felt like a bumbling idiot because of his memory problems. He testified that his mind raced and his thoughts all ran together, and that he had to write everything down because he could not remember anything. He testified that even in conversation with his wife he had difficulty remembering things, including other people's names, and at times could hardly remember his own name. DRO Hearing Transcript, pp. 11-12. He testified that he last worked in 2002. DRO Hearing Transcript, p. 13. As stated before, the Veteran is presently 70 percent service-connected for major depression. And in February, 2011, a VA examiner averred that the Veteran's dementia and major depression "would prevent this Veteran from gainful employment." There is no evidence of record that contravenes this conclusion, and no distinction in the evidence has been made between the symptoms of dementia and those of the Veteran's service connected psychiatric disorder. VA case law provides that if an examiner is unable to medically distinguish the extent of impairment attributable to the service-connected disability, the benefit-of-the-doubt doctrine directs that all such impairment be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Pursuant to Mittleider, and according the Veteran all reasonable doubt, the Board finds, based on the February 2011 VA opinion, that the Veteran's service-connected psychiatric disability, alone, is sufficiently severe to produce unemployability. ORDER Service connection for a left and right knee disability is denied. Service connection for left and right upper extremity carpal tunnel syndrome is denied. Service connection for a sacroiliac spine disorder is denied. Entitlement to TDIU is granted. REMAND As regards the claim of service connection for a bilateral shoulder disability, the Veteran maintains that his condition began during service. He reports that he worked as a warehouseman during service, handling "large items such as 55 gallon drums and so forth and so on." See March 2002 Hearing Transcript, pp. 2-3. He further asserts that his condition was aggravated after his military retirement, during his civilian work in the post office. Service treatment records confirm that the Veteran was seen on many occasions during service for complaints of right and left shoulder pain. In the report of a VA examination done in February 2011, the examiner opined that the Veteran's bilateral shoulder disability was not related to service because the Veteran's shoulder pain commenced after service, with his civilian employment at the post office. However, as indicated above, there is evidence of treatment for bilateral shoulder complaints during service. As the February 2011 opinion is based on an inaccurate factual premise, the Veteran should be accorded a new VA examination. On remand any outstanding VA treatment records dated since August 2011 should be associated with the Veteran's claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate, with the claims file, VA medical records pertaining to the Veteran dating from August 2011 to the present. Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran. 2. After associating all outstanding records with the claims file, schedule the Veteran for a new VA examination. The claims file should be made available to, and reviewed by, the examiner in conjunction with the examination. All indicated tests should be done, and all findings reported in detail. Following completion of the examination and a review of the claims file, the examiner is requested to opine as to whether it is at least as likely as not that the Veteran's pre-surgery bilateral shoulder disorder began in service, or was related to some incidence or event of active duty service, including the shoulder complaints noted therein. A complete rationale for all opinions must be provided. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so state in the examination report, and explain why that is so. 3. After completion of all of the above and any other development deemed necessary, re-adjudicate the claim. If the benefit remains denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs