Citation Nr: 1441981 Decision Date: 09/19/14 Archive Date: 09/30/14 DOCKET NO. 08-37 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral carpal tunnel syndrome, to include as secondary to service-connected cervical spine and lumbar spine disabilities. 2. Entitlement to service connection for a left elbow disability. 3. Entitlement to an increased rating for bilateral hearing loss, rated noncompensable prior to July 2, 2010, and 10 percent disabling since that date. 4. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1995. These matters come before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for carpal tunnel syndrome and a left elbow disability and denied entitlement to a compensable rating for bilateral hearing loss. The Veteran testified before the Board at an August 2009 hearing at the RO (Travel Board hearing), and a transcript of that hearing has been associated with his claims folder. In April 2010, the Board remanded the service connection and increased rating issues listed above for further development. In May 2011, the Appeals Management Center (AMC) granted an increased (10 percent) rating for bilateral hearing loss, effective from July 2, 2010. The Board again remanded the service connection and increased rating issues listed above for further development in December 2011. The Veteran had also perfected an appeal with regard to a claim of service connection for a gastrointestinal disability, and the Board had remanded this issue in December 2011 for further development. In August 2012, the AMC granted service connection for gastroesophageal reflux disease (GERD), and thereby resolved the appeal as to that issue. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and considered as part of this appeal. As noted by the Board in its December 2011 remand, the Veteran has raised the issues of entitlement to service connection for flat feet and entitlement to increased ratings for hypertension, traumatic arthritis of the cervical spine, traumatic arthritis of the lumbar spine, and bilateral heel spurs. These issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has current bilateral carpal tunnel syndrome and a current left elbow disability which are related to his various physical duties in service and an in-service left elbow injury. In the alternative, he claims that the carpal tunnel syndrome is related to his service-connected cervical spine and lumbar spine disabilities. He has reportedly experienced a continuity of left elbow and bilateral carpal tunnel symptomatology in the years since service, but there is some evidence to the contrary. For example, there were no left elbow or upper extremity neurologic problems found during his June 1995 retirement examination and the first post-service clinical evidence of upper extremity problems is not for several years following his separation from service. Also, he reported on a June 1995 report of medical history form completed for purposes of separation from service that he was not experiencing, nor had he ever experienced, any neuritis or paralysis and that although he had experienced left elbow pain following an injury in 1977, the elbow was "ok" at the time of the separation examination. VA orthopedic and neurologic examinations were conducted in July 2010 to assess the nature and etiology of any current carpal tunnel syndrome and left elbow disability and the Veteran was diagnosed as having left ulnar nerve peripheral neuropathy at the elbow, left median nerve peripheral neuropathy at the carpal tunnel, and a left elbow strain. There was no objective evidence of right carpal tunnel found during the neurologic examination. The physician who conducted the July 2010 examinations concluded that he was unable to opine as to whether the Veteran's diagnosed upper extremity neurologic disabilities and left elbow disability were related to service without resort to mere speculation. He reasoned that although service treatment records included a May 1995 record of treatment for left hand numbness, there was no diagnosis made and there was no evidence of any other potential carpal tunnel or ulnar nerve entrapment symptoms, treatments, or diagnoses in the service treatment records (including during the June 1995 separation examination which did not indicate any neurologic abnormalities). Thus, there was no objective evidence that the left hand numbness documented during service was more than an acute and transitory event, or that it could have been caused or related to carpal tunnel syndrome or left ulnar nerve entrapment. With respect to the diagnosed left elbow strain, the examiner explained that the Veteran's service treatment records were silent for any chronic findings of left elbow diagnoses and that there was no objective evidence of a left elbow joint condition caused by service. The July 2010 opinions are insufficient because private treatment records were subsequently received from Premier Spine and Pain Center and Heekin Orthopedic Specialists which include diagnoses of right carpal tunnel syndrome, cervical radiculopathy, and left elbow arthritis. These diagnoses were not considered by the examiner who conducted the July 2010 examinations. Also, the opinion pertaining to the Veteran's left elbow disability is entirely based on a lack of objective clinical evidence of treatment for left elbow problems in his service treatment records and does not reflect consideration of his report of a left elbow injury in service (as documented on the June 1995 report of medical history form). In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In addition, no adequate opinions have been provided as to whether any of the Veteran's current upper extremity neurologic disabilities were caused or aggravated by his service-connected cervical and lumbar spine disabilities. See 38 C.F.R. § 3.310 (2013). Thus, a remand is necessary to obtain new opinions as to the etiology of the Veteran's current upper extremity neurologic disabilities and left elbow disabilities. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the adjudicator to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2013); see 38 C.F.R. § 19.9 (2013). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that entitlement to a TDIU may be an element of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the evidence reflects that the Veteran is unemployed and he reported in an August 2009 statement that he was unemployable due to his service-connected disabilities. Thus, given the evidence of a medical disability, the claim for the highest rating possible, and evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice. The Court has held that in the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect a veteran's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In this case, no specific opinion has been obtained as to the impact of all the Veteran's service-connected disabilities on his employability. Furthermore, the Veteran's percentage ratings do not currently meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) (2013). Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran has not yet been provided with a notice letter regarding the issue of a TDIU in accordance with the Veterans Claims Assistance Act of 2000 (VCAA). Such notice is required upon remand. Overton v. Nicholson, 20 Vet. App. 427 (2006). Also, the issue of entitlement to a TDIU is inextricably intertwined with the other service connection and increased rating issues that are currently on appeal. Moreover, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). A May 2012 VA psychology consultation note indicates that the Veteran was reportedly in receipt of Social Security Administration (SSA) disability benefits for an unspecified disability. The Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination have not yet been associated with the claims file and may be relevant. In addition, the Veteran reported in his February 2007 claim (VA Form 21-4138) that he received relevant treatment from "Shands/University of Florida." Also, he submitted a signed and completed "Authorization and Consent to Release Information" form (VA Form 21-4142) in March 2009 for records of treatment for hearing loss from Dr. Loper in Jacksonville, Florida. The AOJ, however, did not take any further steps to obtain all relevant treatment records from these treatment providers. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Also, the Veteran submitted an audiology examination report from Dr. Loper dated in December 2008; however, it is unclear as to whether speech recognition testing was conducted and, if so, whether the speech recognition thresholds were obtained using the Maryland CNC test as required by 38 C.F.R. § 4.85 (2013). Hence, a remand is also necessary to seek clarification from Dr. Loper as to results of any speech recognition testing and what standard was used to complete any such testing. See Savage v. Shinseki, 24 Vet. App. 259, 269 (2011) (clarification from a private medical examiner must be sought when an examination report is unclear or insufficient and the missing information is relevant, factual, and objective). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter that provides him with notice as to the information and evidence that is required to substantiate the issue of a TDIU. A copy of this letter must be included in the claims file. 2. Ask the Veteran to complete a formal application for a TDIU and to report his education and employment history and earnings, especially for the period since February 2007. 3. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records relied upon to make the decision. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 4. Ask the Veteran to complete authorizations for VA to obtain all records of his treatment for a neurologic disability of the upper extremities, an elbow disability, hearing loss, tinnitus, a skin disease, a cervical spine disability, a lumbar spine disability, a foot disability, hypertension, and a gastrointestinal disability from Dr. Loper and Shands/University of Florida. Also, ask Dr. Loper to provide the results of any speech recognition testing (including any such testing conducted during the December 2008 examination) and to clarify whether any such data was obtained using the Maryland CNC test or another standard. Ask the Veteran for any necessary assistance in obtaining this clarification. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be asked to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims. All such notification must be documented in the claims file. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records and any records from the SSA, schedule the Veteran for a VA neurologic examination with an examiner other than the one who conducted the July 2010 VA examination to assess the nature and etiology of any current bilateral neurologic disability of the upper extremities. All indicated tests and studies shall be conducted. The claims folder, including any relevant evidence contained in VBMS and the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. With respect to each current neurologic disability of the upper extremities identified (i.e. any neurologic disability of the upper extremities diagnosed since February 2007), the examiner shall answer all of the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the current neurologic disability of the upper extremities had its onset in service, is related to the Veteran's upper extremity neurologic symptoms in service, is related to his reported injury in service when he fell off a vehicle while collecting garbage barrels, is related to his various duties in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent or greater probability) that the current neurologic disability of the upper extremities was caused (in whole or in part) by the Veteran's service-connected traumatic arthritis of the cervical spine and/or traumatic arthritis of the lumbar spine? (c) Is it at least as likely as not (50 percent or greater probability) that the current neurologic disability of the upper extremities was aggravated (made chronically worse) by the Veteran's service-connected traumatic arthritis of the cervical spine and/or traumatic arthritis of the lumbar spine? If any current neurologic disability of the upper extremities was aggravated by a service-connected disability, the examiner shall also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In formulating the above opinions, the examiner shall acknowledge and comment on all neurologic disabilities of the upper extremities diagnosed since February 2007 (including, but not limited to, bilateral carpal tunnel syndrome, left ulnar nerve peripheral neuropathy at the elbow, and cervical radiculopathy), all instances of treatment for upper extremity neurologic problems in the Veteran's service treatment records (including the May and June 1995 records of treatment for left upper extremity numbness and weakness), the Veteran's reported upper extremity injuries in service due to a fall from a vehicle, his reported duties in service, and his reports of a continuity of symptomatology in the years since service. The examiner must provide a rationale for each opinion given. The examiner is advised that the Veteran is competent to report upper extremity injuries in service, his symptoms, and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms or a continuity since service, the examiner must provide a reason for doing so. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 6. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records and any records from the SSA, schedule the Veteran for a VA orthopedic examination with an examiner other than the one who conducted the July 2010 VA examination to assess the nature and etiology of any current left elbow disability. All indicated tests and studies shall be conducted. The claims folder, including any relevant evidence contained in VBMS and the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. With respect to each current left elbow disability identified (i.e. any left elbow disability diagnosed since February 2007), the examiner shall answer all of the following questions: Is it at least as likely as not (50 percent or greater probability) that the current left elbow disability had its onset in service, is related to the Veteran's reported injury in service when he fell off a vehicle while collecting garbage barrels, is related to his reported duties in service, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner shall acknowledge and comment on all left elbow disabilities diagnosed since February 2007 (including, but not limited to, a left elbow strain and left elbow arthritis), the Veteran's reported left elbow injury in service due to a fall from a vehicle (as reported on the June 1995 report of medical history form), hos reported duties in service, and his reports of a continuity of symptomatology in the years since service. The examiner must provide a rationale for each opinion given. The examiner is advised that the Veteran is competent to report a left elbow injury in service, his symptoms, and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms or a continuity since service, the examiner must provide a reason for doing so. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 7. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records and any records from the SSA, schedule the Veteran for a VA examination to determine whether his service-connected disabilities prevent him from securing and following substantially gainful employment for which his education and occupational experience otherwise qualify him. All indicated tests and studies shall be conducted. The claims folder, including any relevant evidence contained in VBMS and the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner shall answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (tinea cruris and pigmented purpura of the bilateral lower extremities; traumatic arthritis of the cervical spine; traumatic arthritis of the lumbar spine; residuals of a left bunionectomy with bilateral heel spurs and pes planus; hypertension; right elbow olecranon osteophyte; tinnitus; bilateral hearing loss; and GERD) would, either in combination or individually, prevent him from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him? (b) Would the above opinion change if a neurologic disability of the upper extremities and/or a left elbow disability were considered service-connected disabilities? The examiner must provide a rationale for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 8. After conducting any additional indicated development, to include the referral of any extraschedular issues to VA's Director of C&P if warranted, readjudicate the issues on appeal. If a benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. 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 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. 2013). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2013).