Citation Nr: 1754484 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-03 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for left carpal tunnel syndrome. 2. Entitlement to an initial rating in excess of 10 percent for bulging disc of the thoracolumbar spine. 3. Entitlement to an initial, compensable rating for pylar cyst of the head. 4. Entitlement to an initial, compensable rating for erectile dysfunction. 5. Entitlement to an initial rating in excess of 10 percent for status post surgery of the left shoulder. 6. Entitlement to an initial, compensable rating for right shoulder strain. 7. Entitlement to an initial, compensable rating for strain of the right thumb. 8. Entitlement to a rating in excess of 10 percent for osteoarthritis with disc compression of the cervical spine. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from November 1991 to January 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. On his VA Form 9, Appeal to the Board, received in January 2014 the Veteran limited his appeal to those issues listed on the title page. The issues of entitlement to increased initial ratings for the service-connected thoracolumbar spine, right shoulder, left shoulder, cervical spine, right thumb, and pylar cyst disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Left carpal tunnel syndrome is not shown by the record. 2. The Veteran's erectile dysfunction does not result in any deformity of the penis. CONCLUSIONS OF LAW 1. Left carpal tunnel syndrome was not incurred in or aggravated by active service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for an initial, compensable rating for erectile dysfunction are not met. 38 U.S.C. §§ 1155, 5107 (2012) 38 C.F.R. §§ 3.102, 4.7, 4.115b, Diagnostic Code 7522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. The list includes other organic disease of the nervous system. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic disease of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. The Veteran's service treatment records include various reports of cervical spine disability with symptoms radiating to the left upper extremity and assessment of radiculopathy. A post-deployment assessment dated in October 2006 revealed C5, C6, C7 disc compression with increased numbness in the fingers secondary to wearing battle gear. However, there is no indication in these records of diagnosis or treatment of left carpal tunnel syndrome. On VA examiner shortly after discharge in July 2012, the Veteran reported that his hand symptoms began in service when he starting using smartphones with keyboards for texting in 2004. He noticed in 2006 that he had pain in the bilateral thumbs. There were no symptoms related to carpal tunnel syndrome; rather the examiner noted symptoms related to overuse. On examination, Phalen's and Tinel's sign were negative. The examiner diagnosed strain of the bilateral thumbs (filed as carpal tunnel syndrome. An April 2012 treatment report from Tyndall Air Force Based reflects that the Veteran stated that he had pain in the left upper extremity, which he felt was carpal tunnel. He was assessed with low back pain and neck pain. A second report reflects assessment of De Quervain's tenosynovitis associated with the Veteran's complaint of trigger finger issues. An August 2012 report from Tyndall Air Force Base reflects assessment of right, but not left, carpal tunnel syndrome. The Veteran underwent EMG and nerve conduction studies in August 2012, which revealed normal findings, to include of the left upper extremity. No other post-service records indication diagnosis or assessment of left carpal tunnel syndrome. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no disability, the Board does not reach the issue of whether the claimed disability is related to service. As a lay person, the Veteran is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the record is devoid of any evidence showing a current carpal tunnel syndrome, and he has not provided any lay evidence that would suggest the existence of a disease or injury. To the extent that the Veteran's symptoms have been assessed as radiculopathy, he is service-connected for cervical spine disability, and consideration of whether a separate rating for related left upper extremity neurological symptoms is included in the rating for this disability. See 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (noting that neurological abnormalities are to be separately rated under and appropriate diagnostic code). In addition, the Veteran is service-connected for strain of the bilateral thumbs. In the absence of a current disability, service connection cannot be established. See Holton, 557 F.3d at 1366 (holding that entitlement to service connection requires, among other things, evidence of a current disability); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). II. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). The Veteran's erectile dysfunction is rated as noncompensable pursuant to the criteria of 38 C.F.R. § 4.115b, Diagnostic Code 7522. Pursuant to Diagnostic Code 7522, a 20 percent disability rating is assigned for deformity of the penis, with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. On VA examination shortly after discharge in July 2012, the Veteran reported that he underwent vasectomy and vasectomy reversal in service. He expressed that he still experienced pain post operatively in the reversal areas and nerves around the area. He had an ultrasound of the testicle with good report, and was told that it was nerve damage. He went to a urologist for care, who offered removal of the testicle, but he declined the surgery. He was prescribed medication for erectile dysfunction. The examiner noted that the Veteran had not undergone orchiectomy, and did not have voiding dysfunction, or a history of urinary tract or kidney infection. He did have erectile dysfunction due to subjective pain. He did not have epididymitis. The Veteran did not undergo physical examination of the genitalia at his request; he reported a normal anatomy with no penile deformity or abnormality. The examiner diagnosed erectile dysfunction and vasectomy reversal with subjective pain residual. In his November 2012 notice of disagreement, the Veteran reported that he had nerve damage as a result of the vasectomy reversal, which caused chronic pain and decrease in performance for which he had a prescription for Cialis. On VA examination in May 2013, the Veteran reported that his right testicle was sensitive following the vasectomy reversal. He occasionally used Cialis as needed. On physical examination, the penis and testes were normal. The examiner noted that there was no diagnosis to support a claim of erectile dysfunction. The Veteran did not meet the clinical criteria for the diagnosis. His use of Cialis was for personal enhancement/satisfaction. In his January 2014 VA Form 9, Appeal to the Board, the Veteran expressed that he did have a "deformity" in that the right testicle has constant pain. He noted increased pain. An August 2013 treatment report from Tyndall Air Force Base reflects that the Veteran was prescribed Cialis for erectile dysfunction. Here, the evidence reflects that the Veteran has erectile dysfunction, and that he receives special monthly compensation for loss of use of a creative organ. In this case, the Veteran's erectile dysfunction is noncompensable under Diagnostic Code 7522 because there is no deformity shown. The Board has considered the Veteran's reports of pain; however, the testes and penis have been shown to be normal. He does not have atrophy or removal of the testis and therefore rating under Diagnostic Codes 7523 or 7524 are not appropriate. 38 C.F.R. § 4.115b. Again, the pain and resulting erectile dysfunction is the basis for his special monthly compensation. Accordingly, a next-higher, 20 percent rating is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 370-71 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)." Accordingly, the Board finds that an initial, compensable rating for erectile dysfunction must be denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for left carpal tunnel syndrome is denied. Entitlement to an initial, compensable rating for erectile dysfunction is denied. REMAND Upon review of the claims file, the Board believes that additional development on the remaining claims is warranted. The Court in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing conditions, and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The Board notes that the Veteran was afforded VA examinations pertaining to the lumbar spine, cervical spine and shoulders in July 2012 and May 2013 and to the right thumb in July 2012 and February 2014. Review of these examination reports reveal that range of motion testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted. In light of Correia, these VA examinations are incomplete, and the Veteran must be provided a new VA examination with respect to the lumbar spine, cervical spine, right shoulder and left shoulder, and right thumb which provides range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing conditions. With respect to the claim for increased rating for pylar cyst of the head, this disability is rated under Diagnostic Code 7819. 38 C.F.R. § 4.118. Diagnostic Code 7819 provides ratings for benign skin neoplasms, which are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function. 38 C.F.R. § 4.118. Diagnostic Code 7800 provides ratings for scars or other disfigurement of the head, face, or neck. A 10 percent rating is warranted where there is one characteristic of disfigurement. Diagnostic Code 7804 provides a 10 percent rating for scars that are superficial, unstable, or painful on examination. The Veteran contends that his pylar cysts are productive of pain and disfigurement. While he has been afforded VA examination in July 2012 and May 2013; however, the examiners did not indicate whether the cysts were productive of pain on examination and merely concluded that the disability was not productive of disfigurement without discussing whether any of the characteristics of disfigurement were present. Accordingly, the case is REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records 2. Schedule the Veteran for a VA examination(s) to ascertain the current severity and manifestations of the Veteran's service-connected lumbar spine, cervical spine, right shoulder and left shoulder, and right thumb disabilities. The claims file should be made available to the examiner for review in connection with the examination. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine, cervical spine, right shoulder, left shoulder, or right thumb is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should identify all neurologic manifestations of the Veteran's thoracolumbar and cervical spine disabilities. If there is neurological impairment, the examiner should identify the nerve or nerves involved and determine the manifestations. The examiner should also comment on the impact of the Veteran's lumbar spine, cervical spine, right and left shoulder, and right thumb disabilities on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected pylar cyst of the head. The claims file should be made available to the examiner for review in connection with the examination. In particular, the examiner is asked to address whether the Veteran's pylar cysts are productive of any of the 8 characteristics of disfigurement for the purpose of evaluation under 38 C.F.R. § 4.118, whether any of the cysts are painful or unstable on examination, or require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs . The examiner should also comment on the impact of the Veteran's pylar cyst disability on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 4. After completing any additional notification or development deemed necessary, the Veteran's claims should be readjudicated. If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs