Citation Nr: 1421769 Decision Date: 05/14/14 Archive Date: 05/21/14 DOCKET NO. 13-00 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for left carpal tunnel syndrome. 2. Entitlement to an effective date earlier than June 10, 2011 for the grant of additional compensation on account of a dependent spouse. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from October 1945 to February 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In October 2011, the RO awarded an effective date of June 10, 2011, for the addition of the Veteran's dependent spouse to his compensation award. In August 2012, the RO denied service connection for left carpal tunnel syndrome. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002).) FINDINGS OF FACT 1. By a December 2008 rating decision, the RO granted service connection for varicose veins with a disability rating of 10 percent, effective June 9, 2008, thereby increasing the combined rating service-connected disabilities to 30 percent from the previous combined rating of 20 percent and making the Veteran eligible to receive a dependency allowance. 2. In a December 16, 2008 cover letter to the above-referenced rating decision, the Veteran was advised that he was being paid as a single veteran, that he might be entitled to additional compensation benefits based on his having dependents, and that he needed to apply for dependents' benefits by submitting a VA Form 21-686c, "Declaration of Status of Dependents." The requested information was not received within one year of notification. 3. On June 10, 2011, the Veteran filed a claim for the addition of his spouse. 4. The RO did not receive evidence regarding the Veteran and his wife's marriage and divorce from previous spouses until July 7, 2011. 5. Left carpal tunnel syndrome did not start in service and is not related to the service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 10, 2011, for the grant of additional compensation based on a dependent spouse have not been met. 38 U.S.C.A. §§ 1115, 5110(f) (West 2002); 38 C.F.R. §§ 3.31, 3.204, 3.205, 3.401 (2013). 2. The Veteran does not have left carpal tunnel syndrome that is the result of disease or injury incurred in or aggravated by active military service; it is not proximately due to or the result of the service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The effective date claim arises from the Veteran's disagreement with the effective date for payment of additional compensation for the Veteran's dependent spouse. Courts have held that, once the benefit sought is granted, the claim is substantiated, and additional notice is not required. Thus, no further VCAA notice relevant to the effective date issue is required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Here, a May 2012 letter complied with VA's duty to notify the Veteran with regards to the service connection claim. Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter also provided notice regarding an award of an effective date or rating criteria was not provided. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that VA has complied with its duty to assist the Veteran in the development of the service connection claim. The evidence of record contains VA outpatient treatment records and the Veteran's lay statements. He has not indicated, and the record does not contain evidence, that he receives disability benefits from the Social Security Administration. See 38 C.F.R. § 3.159 (c)(2). The Veteran underwent VA examinations in April 2010 and May 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the May 2012 VA opinion is adequate, as it was predicated on consideration of all of the pertinent evidence of record, to include statements regarding the development of the Veteran's left carpal tunnel syndrome, and documents that the examiner conducted a full examination of the Veteran and review of the claims file and fully understood the questions posed by the agency of original jurisdiction. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection claim on appeal has been met. See 38 C.F.R. § 3.159(c)(4). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. II. Earlier Effective Date - Additional Compensation for Spouse The Veteran contends that an effective date earlier than June 10, 2011 for an additional allowance based on his having a dependent spouse is warranted. Specifically, he argues that the effective date should be April 12, 2007, the effective date of his initial service connection award. See December 2011 Statement. He essentially contends that he married his wife in April 1989, had been in receipt of the requisite level of VA disability compensation since April 2007, and did not know until recently that he could receive additional compensation for a dependent spouse. He asserts that VA should have informed him of this matter, and that an earlier effective date should be assigned for the award of additional compensation on account of a dependent spouse because VA did not inform him of his eligibility for this benefit. See November 201 Notice of Disagreement; December 2011 Statement; January 2013 VA Form 9. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C.A. § 1115. Regarding an award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose, the effective date will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the service member's award. 38 C.F.R. § 3.401(b). The "date of claim" for additional compensation for a spouse is the date of the veteran's marriage, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action. 38 U.S.C.A. § 5110(f), (n); 38 C.F.R. § 3.401(b)(1). The earliest date that an additional award of compensation for a dependent spouse can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and, where the claimant's dependent child does not reside with the claimant, the name and address of the person who has custody of the child. 38 C.F.R. § 3.204 (2013). While acceptance of a claimant's written statement may be evidence of the existence of a dependent, it is only acceptable when it contains specific, required information. See McColley v. West, 13 Vet. App. 553, 557 (2000). The Veteran submitted an original compensation claim in April 2007 and was granted service connection for left knee arthritis (10 percent) and left knee instability (10 percent). The effective date for both awards was April 12, 2007. The Veteran informed the RO of his marriage to his current spouse in the April 2007 claim for compensation. He related that he had been married once previously and that his first wife had died in 1986. The Veteran also stated that his current wife had one prior marriage, and had divorced her first husband in 1981. In a December 2008 rating decision, the RO granted service connection for varicose veins (10 percent from June 9, 2008) and continued the 10 percent ratings for the Veteran's left knee disabilities. This was the first time that the Veteran had a combined rating of 30 percent or more. Thus, the Veteran first qualified for additional compensation for dependents as of the effective date awarded for the 30 percent combined rating--June 9, 2008. See 38 C.F.R. § 3.4(b)(2) . The letter accompanying the December 2008 rating decision informed the Veteran that he was being paid as a single veteran with no dependents, that he might be entitled to additional compensation benefits for his dependents and that he needed to apply for dependents' benefits by submitting a VA Form 21-686c, "Declaration of Status of Dependents." The Veteran did not submit a completed VA Form 21-686(c) within one year of the December 2008 letter. A June 10, 2011 VA Form 21-0820 shows that the Veteran contacted VA and requested that his current spouse be added as a dependent. He indicated that they had married in April 1989 and that he and his first wife had divorced in August 1981. He also provided the month and date that his current wife had divorced her first husband. Subsequently, in an undated letter, the RO indicated that the information he had provided regarding his dependent was incomplete. Specifically, the RO requested a copy of the Veteran's current marriage certificate and copies of both divorce decrees. On July 7, 2011, the RO received a VA Form 21-686c, "Declaration of Status of Dependents," at which time the Veteran reported he had married his current spouse in April 1989 and that his wife divorced her first husband in April 1988. He also reported that he and his first wife had divorced in March 1981. He attached a copy of his current marriage certificate, a copy of his wife's prior divorce decree, and a copy of the divorce decree from his first marriage. The Board notes that the actual date of the Veteran's divorce from his first wife (March 1981) conflicts with the date previously provided by the Veteran (August 1981). The Board finds that an effective date earlier than June 10, 2011 for the inclusion of the Veteran's dependent spouse is not warranted. Initially, the Board notes that the effective date for the award of additional compensation cannot be the date requested by the Veteran because he did not have a disability rating of 30 percent or more in effect at that time. See 38 C.F.R. §§ 3.4(b)(2), 3.401(b)(1)(i). The Veteran was married to his current spouse in April 1989. He first became eligible for dependency benefits on June 9, 2008, the date his combined disability rating was not less than 30 percent. See 38 U.S.C.A. § 1115(2); 38 C.F.R. § 3.4(b)(2). A December 2008 letter to the Veteran instructed him to complete VA Form 21-686(c). A claim for dependency was received on June 10, 2011. The RO subsequently informed the Veteran that the information he had submitted was insufficient to process his dependency claim and instructed him to provide a copy of his marriage certificate and copies of divorce decrees from his and his wife's previous marriages. The Veteran did not provide the proper documentation and information until July 7, 2011. For the foregoing reasons, there is no basis for assignment of an effective date earlier than June 10, 2011 for additional benefits based on a dependent spouse via the provisions of 38 C.F.R. § 3.401(b). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and entitlement to an earlier effective date is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra, at 54-56 (1990). III. Service Connection The Veteran contends that he has carpal tunnel syndrome of the left wrist secondary to his service-connected left knee disability. Specifically, he contends his left carpal tunnel syndrome was caused, or aggravated, by the use of a cane and/or having to rely on rails for balance and having to break falls with his left hand due to his service-connected left knee. See, e.g., March 2011 Statement. He maintains that since the RO granted secondary service connection for right carpal tunnel syndrome (see August 2012 Rating Decision), he is also entitled to secondary service connection for left carpal tunnel syndrome. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). VA treatment records establish that the Veteran was diagnosed with bilateral carpal tunnel syndrome (CTS) in February 2009. The Veteran's left carpal tunnel syndrome was described as "moderate" in November 2009. In January 2010, the Veteran's wife submitted a statement stating that the Veteran had trouble walking and often lost his balance. The Veteran submitted to an April 2010 VA examination. He gave a history of pain and numbness in both hands, more severe on the right, starting "a couple of years ago." He had been intermittently using a cane with his right hand for four years. The examiner opined that the Veteran's left carpal tunnel syndrome was not caused or aggravated by his left knee disability. No rationale was provided for this negative opinion. In addition, the examiner indicated that the Veteran denied any pain, numbness, or weakness in the left hand. Recognizing that this opinion was inadequate, the RO scheduled another VA examination in May 2012. The Veteran reported that he developed left carpal tunnel symptoms in 2010 after fully recovering from his right carpal tunnel release. He complained of pain, tingling, numbness, and "electric-like" pains. These symptoms involved the index finger through the small finger. He also reported that "tenacious gripping can result in cramps." The Veteran used a cane intermittently to support his left knee. The examiner opined that the Veteran's left knee condition "posed little imposition on his left wrist as to cause or aggravate the left carpal tunnel syndrome condition." He noted that the Veteran is right-handed. He considered the Veteran's report that he used a cane intermittently when walking long distances and gripped handrails (right or left), depending on the configuration of the stairs and rungs. He noted that the Veteran's house is a raised ranch with eight stairs from the garage to the front door vestibule and another eight stairs to the living area, which is all on one floor. He also noted that the Veteran worked 20 hours per week as a psychologist and had no difficulty documenting cases without a computer. (Although the beginning of the report indicates that the Veteran is left-handed, it seems that this statement is a typographical error when reviewing the report in its entirety and the other medical evidence of record.) The evidence of record does not support the Veteran's assertion that his left carpal tunnel syndrome is due to or aggravated by his service-connected left knee arthritis and/or instability. The May 2012 VA examiner opined that the Veteran's left carpal tunnel syndrome was not related to the service-connected left knee. He considered the Veteran's lay statements with respect to left carpal tunnel symptoms and the theory of secondary service connection, and provided a rationale for his negative nexus opinion. The Board accepts the May 2012 examiner's opinion as being the most probative medical evidence on the subject, as it is based on a physical examination of the Veteran and a review of all historical records. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). Furthermore, and of particular significance to the Board in this matter, is the fact that no medical professional has provided any opinion indicating that the Veteran's left carpal tunnel syndrome is in any way related to his service-connected left knee. While the Veteran believes that his left carpal tunnel syndrome is related to his service-connected left knee, there is no evidence that he has the medical training or expertise to provide a competent opinion on the etiology of his left carpal tunnel syndrome, and his opinion has no probative value. Even if his opinion was entitled to be accorded some probative value, it is far outweighed by the opinion provided by the May 2012 VA examiner who discussed the evidence of record and provided a complete rationale for his medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Given the evidence on the secondary issue and because there is no competent indication that the disability is traceable to the Veteran's period of military service, the preponderance of the evidence is against the claim. ORDER Entitlement to an effective date earlier than June 10, 2011, for the grant of additional compensation on account of a dependent spouse is denied. Entitlement to service connection for left carpal tunnel syndrome is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs