Citation Nr: 1756731 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-00 450A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for postoperative residuals of right and left inguinal herniorrhaphies, to include as secondary to myositis of scapular musculature. 2. Entitlement to service connection for bilateral carpal tunnel syndrome. 3. Entitlement to service connection for an acquired psychiatric disability, to include depression, panic disorder, anxiety disorder, and mood disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION The Veteran had active military service from June 1969 to December 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were before the Board in August 2017, at which time they were remanded for the scheduling of a travel board hearing. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2017. A copy of the transcript has been reviewed and associated with the claims file. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (stating that what constitutes a claim cannot be limited by a lay veteran's assertion of her condition, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). Therefore, the Board construes the Veteran's claim of service connection for anxiety as encompassing entitlement to service connection for the additional psychiatric diagnoses raised by the record, to include depression, panic disorder, and mood disorder. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Carpal Tunnel Syndrome The Veteran has been assessed with bilateral carpal tunnel syndrome and asserts that it was caused by his time as a percussionist in service. The Veteran was afforded a VA examination in April 2011, at which time the examiner assessed him with left ulnar focal neuropathy at the elbow consistent with entrapment at the cubital tunnel and concluded that there was no evidence of carpal tunnel on the right wrist. The examiner concluded that his current left wrist disability was less likely as not caused by or the result of his left wrist complaints in service because his left wrist pain was consistent with entrapment at the cubital tunnel (elbow) and not the wrist. Subsequently, in November 2017, the Veteran has been diagnosed with bilateral carpal tunnel syndrome. Accordingly, the Board finds that a medical opinion by a hand surgeon and/or neurologist is warranted to determine the etiology of his carpal tunnel syndrome. Acquired Psychiatric Disability Throughout this appeal period, the Veteran has been assessed with depression, panic disorder, anxiety disorder, and mood disorder (acquired psychiatric disability) and asserts that it was incurred in service. He testified that he did not have any mental health treatment prior to service and received treatment in service and continuously thereafter, including at the VA in the 1970s. The Board notes that the VA records associated with the claims file begin in May 1994. Accordingly, a remand is necessary for the AOJ to obtain the Veteran's VA records from the 1970s to the present. Furthermore, a VA examination was performed in April 2011, at which time the examiner assessed the Veteran with major depressive disorder, generalized anxiety disorder, and panic disorder. The examiner concluded that the Veteran's symptoms of anxiety and depression first appeared during childhood and were neither caused nor permanently aggravated by the military service. However, at the time of the examination the examiner did not review the Veteran's service treatment records. The examiner drafted an addendum report dated in July 2011, in which he stated that he reviewed the service treatment records. However, the complete July 2011 addendum opinion is not contained in the claims file. Accordingly, on remand, the Veteran's VA records from the 1970s to the present and the July 2011 addendum opinion should be obtained and associated with the claims file. Furthermore, given the insufficient rationale provided by the April 2011 examiner and evidence received since the examination, including an additional diagnosis of mood disorder, the Board finds that a new VA examination is warranted to assess the etiology of the Veteran's acquired psychiatric disability. Inguinal Herniorrhaphies The Veteran underwent a left inguinal hernia repair in October 2006 and subsequently complained of pain in his groin and was assessed with an inguinal strain. He asserts that he had right quadrant pain in service and his current disability is related to service or, in the alternative, is related to his service connected myositis of scapular musculature. A VA examination was performed in June 2008, at which time the examiner assessed the Veteran with a well healed right and left inguinal herniorrhaphies. The examiner opined that the inguinal hernias were not caused by or a result of myositis of scapular musculature because a literature search failed to uncover a documented association. The examiner failed to provide an opinion as to whether the inguinal hernias were incurred in service, including his documented complaints of pain in the lower right quadrant in September 1970, or if his service connected myositis of scapular musculature aggravated his inguinal hernias. Given the above, the Board finds that a new VA examination is warranted to assess the etiology of the residuals of the Veteran's inguinal hernia repair. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's complete VA treatment records, including mental health treatment, from January 1972 to the present. Any negative search should be noted in the claims folder. 2. Obtain and associate with the claims file the July 2011 addendum opinion by the VA examiner who assessed the Veteran's psychiatric disability. 3. After completing #1, forward the claims file, including a copy of this remand, to a hand surgeon and/or neurologist, to determine the etiology of the Veteran's bilateral carpal tunnel syndrome. The Board notes that an examination is not necessary unless so determined by the examiner. The examiner is to identify all left and right wrist disabilities during the pendency of this claim (from December 2010). For each diagnosed left and right wrist disabilities, the examiner should provide an opinion as to the following: Is it at least as likely as not (50 percent probability or more) that the Veteran's wrist disabilities had their onset in and/or are otherwise related to his period of active service, including his military occupational specialty (MOS) as a percussionist and in-service bilateral wrist complaints. The examiner must provide a comprehensive rationale for each opinion provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. 4. After completing #1 and #2, schedule the Veteran for a VA examination to determine the nature and etiology of his psychiatric disability. The claims file, including this remand, must be reviewed by the examiner to become familiar with the pertinent medical history and such review should be noted in the examination report. The examiner should identify all psychiatric disorders found on examination and identified during the pendency of this claim (from December 2010), including depression, panic disorder, anxiety disorder, and mood disorder. For any diagnosed psychiatric disability, the examiner should respond to the following questions: a. Is there clear and unmistakable (undebatable) evidence that any psychiatric disability preexisted the Veteran's military service? b. If the answer to (a) is yes, then is there clear and unmistakable evidence that the preexisting psychiatric disability was NOT aggravated (i.e., permanently worsened) during active service? c. If the answer to (a) is no, then is it at least as likely as not that the Veteran's psychiatric disability was incurred in and/or is otherwise the result of his military service? The examiner must provide a comprehensive rationale for each opinion provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. 4. After completing #1, schedule the Veteran for a VA examination to determine the nature and etiology of his hernia disability. The claims file, including this remand, must be reviewed by the examiner to become familiar with the pertinent medical history and such review should be noted in the examination report. The examiner should identify all hernia disabilities, including any residuals of right and left inguinal herniorrhaphies, found on examination and identified during the pendency of this claim, or from October 2007. For each diagnosed hernia disability, the examiner should respond to the following questions: a. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's hernia disability is caused by his service connected myositis of scapular musculature? b. If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran's hernia disability has been aggravated (permanently worsened) as a result of his service connected myositis of scapular musculature? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of the hernia disability prior to aggravation? If so, please identify. c. If the Veteran's hernia disability is not caused or aggravated by his service connected myositis of scapular musculature, then is it at least as likely as not (probability of at least 50 percent) that the hernia disability had its onset in and/or is otherwise related to his period of active service, including his in-service complaints of pain in his lower right quadrant of his abdomen? The examiner must provide a comprehensive rationale for each opinion provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. 5. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant 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 2014). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).