Citation Nr: 1802252	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-11 652	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1. Whether new and material evidence has been received to open a previously denied claim for service connection for a left knee disability.

2. Entitlement to service connection for a left knee disability.

3. Entitlement to service connection for a right knee disability.

4. Entitlement to an initial rating in excess of 10 percent for carpal tunnel syndrome of the right wrist.

5. Entitlement to an initial rating in excess of 10 percent for carpal tunnel syndrome of the left wrist.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A. Creegan, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Navy from August 1999 to December 2005.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2013 and July 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

In January and February 2015, the Veteran submitted a fully developed claim (VA Form 21-526EZ) for service connection for a bilateral wrist condition secondary to bilateral carpal tunnel syndrome.  A VA examination was obtained in March 2015 in which the examiner diagnosed bilateral wrist arthritis.  These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). 

The issues of entitlement to service connection for left and right knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. In an unappealed July 2013 rating decision, the RO denied service connection for a left knee disability.

2. The evidence received since the July 2013 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability.

3. For the period prior to March 5, 2015, the Veteran's service connected carpal tunnel syndrome in the right wrist was manifested by mild paresthesias and dysesthesias, mild numbness, decreased sensation in the hand and fingers, all resulting in mild incomplete paralysis of the median nerve.

4. For the period after March 5, 2015, the Veteran's service connected carpal tunnel syndrome in the right wrist was manifested by intermittent severe pain, severe paresthesias and/or dysesthesias, moderate numbness, and decreased sensation in the hand and fingers, all resulting in moderate incomplete paralysis of the median nerve. 

5. For the period prior to March 5, 2015, the Veteran's service connected carpal tunnel syndrome in the left wrist was manifested by mild paresthesias and dysesthesias, mild numbness, and decreased sensation in the hand and fingers, all resulting in mild incomplete paralysis of the median nerve.

6. For the period after March 5, 2015, the Veteran's service connected carpal tunnel syndrome in the left wrist was manifested by intermittent severe pain, severe paresthesias and/or dysesthesias, moderate numbness, and decreased sensation in the hand and fingers, all resulting in moderate incomplete paralysis of the median nerve. 


CONCLUSIONS OF LAW

1. The June 2013 rating decision denying service connection for a left knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).

2. Since the June 2013 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for a left knee disability; therefore the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3. The criteria for a rating in excess of 10 percent carpal tunnel of the right wrist prior to March 5, 2015 have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8615 (2017).

4. The criteria for a rating of 30 percent, but no higher, for carpal tunnel of the right wrist after March 5, 2015 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8615 (2017).

5. The criteria for a rating in excess of 10 percent carpal tunnel of the left wrist prior to March 5, 2015 have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8615 (2017).

6. The criteria for a rating of 20 percent, but no higher, for carpal tunnel of the left wrist after March 5, 2015 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8615 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

In his April 2014 Form 9, the Veteran challenged the performance of a June 2013 VA examination of the peripheral nerves no electromyography tests were performed. The challenges will be addressed below. 

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. New and Material Evidence

In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.

New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510,513 (1992). 

 In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary's duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim.

In the July 2013 rating decision, the RO denied the Veteran's claims of entitlement to service connection for right and left knee disabilities on the basis that there was no evidence of a current disability that began in or was caused by service. In the same decision, the RO granted service connection for carpal tunnel of both wrists. The Veteran appealed the rating decision, but specified only the denial of service connection for the right knee and the ratings for the wrists in his Notice of Disagreement (NOD). Therefore denial of service connection for the left knee was not appealed, and new and material evidence was not associated within one year of the rating decision. The decision as to the left knee therefore became final.

In June 2017 the Veteran submitted a new service connection claim, along with evidence consisting of buddy statements stating that the Veteran had suffered from knee pain throughout his time in the Navy and private medical records indicating a diagnosis of osteoarthritis in both knees. As the previous denial was due to a lack of current disability, medical records showing a diagnosis of osteoarthritis constitutes new and material evidence, and reopening of the claim for service connection for a left knee disability is warranted. The claim is addressed in the remand portion below.

III. Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as staged ratings. Id.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). 

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Veteran contends that he is entitled to a rating in excess of 10 percent for each of his wrists. As the analysis is largely the same for both wrists, they will be discussed together.

The Veteran's bilateral wrist disabilities are rated under DC 8615, which rates neuritis of the median nerve. 38 C.F.R. § 4.124a, DC 8615. Under DC 8615, a 10 percent rating is warranted when there is mild incomplete paralysis of the median nerve. Moderate incomplete paralysis warrants a rating of 20 percent on the minor side and 30 percent on the major side. Severe incomplete paralysis warrants a rating of 40 percent on the minor side and 50 percent on the major side. The maximum rating for neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain is that for severe incomplete paralysis. For neuritis not characterized by the organic changes referenced above, the maximum is moderate incomplete paralysis. 38 C.F.R. § 4.123.

The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a.

The Board also observes that the words "mild," "moderate," and "severe," as used in Diagnostic Code 8615, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

The medical evidence of record indicates the Veteran is right hand dominant.



Period prior to March 5, 2015

On his November 2011 application for service connection, the Veteran stated that his wrists continuously hurt when doing any activity for more than a few minutes, and that they hurt when bent for minor amounts of time and while under minor amounts of stress. The Veteran is competent to report such lay observable symptoms, and there is no evidence that his reports are not credible. As such, they are entitled to probative weight concerning the severity of his bilateral wrist disabilities. Jandreau v. Nicholson, 492 F.3d 1372.

Treatment records reflect complaints of intermittent pain, aching, and swelling. 

In June 2013 the Veteran was provided with a VA examination. The examiner noted no constant pain in either wrist and no intermittent pain in either wrist. There was mild paresthesias and/or dysesthesias in both wrists, along with mild numbness. Muscle strength and reflex testing was all normal. Hands and fingers on both sides had decreased sensitivity. Phalen's test and Tinel's test were both positive for both wrists. There were no trophic changes noted for either wrist. The examiner stated that the Veteran had bilateral mild incomplete paralysis of the median nerves. 

The Board notes the Veteran has argued that the examination is inadequate due to lack of EMG testing. EMG testing is not required for the exam to be adequate, and the examiner provided sufficient clinical comments on observable manifestations and loss of function to be applied to the subjective rating criteria.  That the Veteran has nerve deficits of the wrist has been established, and the examiner is competent to identify the affected nerve system.  Therefore the Board finds that the exam was adequate. There is no evidence that the VA examiner was not competent or credible, and as the findings were based on the Veteran's medical records and an objective examination conducted at the time, the Board finds the report is entitled to significant probative weight with respect to the severity of the Veterans' bilateral wrist disabilities at the time of the examination. Nieves-Rodriguez, 22 Vet. App. 295. 

The Veteran also submitted a Disability Benefits Questionnaire prepared by a private physician dated in June 2013.  This physician's findings are substantially similar to that noted in the VA examination and without reference to electrodiagnostic studies.  In an October 2013 notice of disagreement (NOD), the Veteran contended that separate ratings were warranted for deficits of both the median and ulnar nerves in both wrists.  However, the Veteran is not competent and did not provide medical evidence of involvement of the ulnar nerve.  

Based on the evidence of record, the Board finds that increased ratings in excess of 10 percent for the bilateral upper extremities are not warranted prior to March 5, 2015, as the Veteran's overall level of symptomatology does not more nearly approximate the level of severity contemplated by a 20 percent rating for the minor side or a 30 percent for the major side. 38 C.F.R. §§ 4.7, 4.124a, DC 8615. 

March 5, 2015 forward

As noted above, on his November 2011 application for service connection, the Veteran stated that his wrists continuously hurt when doing any activity for more than a few minutes, and that they hurt when bent for minor amounts of time and while under minor amounts of stress. In his October 2013 Notice of Disagreement, the Veteran reiterated that he suffers from sharp intermittent pain in both wrists. The Veteran is competent to report such lay observable symptoms, and there is no evidence that his reports are not credible. As such, they are entitled to probative weight concerning the severity of his bilateral wrist disabilities. Jandreau v. Nicholson, 492 F.3d 1372. As noted above, the Veteran also stated in his October 2013 NOD that as both sides of his wrist hurt, he believed there was damage to both the median and ulnar nerves. However, while he is competent to report pain, he is not competent to diagnose the injured nerve(s). Id.

Treatment records reflect complaints of intermittent pain, aching, and swelling. 

In March 2015 the Veteran was provided with a second VA examination. The examiner noted no constant pain in either wrist and intermittent severe pain in both wrists. There was severe paresthesias and/or dysesthesias in both wrists, along with moderate numbness. Muscle strength testing results for the wrist were 4/5 for flexion, extension, grip, and pinch in both wrists. Reflex testing was all normal. Hands and fingers on both sides had decreased sensitivity. Phalen's test and Tinel's test were both positive for both wrists. No trophic changes were noted for either wrist. The examiner stated that the Veteran had bilateral moderate incomplete paralysis of the median nerves. There is no evidence that the VA examiner was not competent or credible, and as the findings were based on the Veteran's medical records and an objective examination conducted at the time, the Board finds the report is entitled to significant probative weight with respect to the severity of the Veterans' bilateral wrist disabilities at the time of the examination. Nieves-Rodriguez, 22 Vet. App. 295. 

The examination results reflect worsening in the Veteran's condition, warranting an increased rating in both wrists. As the right hand is dominant and therefore the major side, the moderate incomplete paralysis of the right wrist warrants a 30 percent rating. As the minor side, the moderate incomplete paralysis of the left wrist warrants a 20 percent rating. Ratings in excess of 30 percent for the right side and 20 percent for the left side are not warranted, as the Veteran's condition does not more closely approximate the symptomatology of severe incomplete paralysis. 38 C.F.R. §§ 4.7, 4.124a, DC 8615. 

ORDER

The application to reopen the claim for service connection for a left knee disability is granted.

Entitlement to a rating in excess of 10 percent for carpal tunnel of the right wrist prior to March 5, 2015 is denied.

The rating of 30 percent, but not higher for carpal tunnel of the right wrist, effective  March 5, 2015 is granted.

Entitlement to a rating in excess of 10 percent for carpal tunnel of the left wrist prior to March 5, 2015 is denied.

The rating of 20 percent, but not higher, for carpal tunnel syndrome of the left wrist, effective March 5, 2015 is granted.

REMAND

The Veteran contends that he is entitled to service connection for his right and left knee arthritis. A June 2013 VA examination found no underlying pathology for the Veteran's pain in either knee, leading the RO to deny service connection for both knees because there was no current disability. The Veteran appealed the ruling on the right knee, but as discussed above the ruling on the left knee became final. In June 2017 the Veteran submitted private medical records reflecting a diagnosis of osteoarthritis in both knees. The diagnosis was accompanied by a medical opinion stating that it is "very probable" that the Veteran's service "accelerated the development of his current arthritic condition." As this opinion is speculative in nature and therefore inadequate, the RO requested a VA opinion. However, the VA opinion submitted only addressed the left knee. Therefore, remand is necessary for a VA medical opinion on the etiology of the Veteran's right knee arthritis. 

Furthermore, the medical opinion addressing the left knee noted only the Veteran's complaints of pain in service and did not address the left knee injury found in the Veteran's service treatment records. Remand for an addendum opinion is warranted. 

Accordingly, the case is REMANDED for the following action:

1. Obtain an addendum opinion as to the etiology of the Veteran's bilateral knee disabilities. The examiner should answer the following question:

a)	 For each knee, is it at least as likely as not (a fifty percent probability or greater) that the disability was caused or aggravated (permanently worsened beyond its natural progression) by the Veteran's service? 

A detailed rationale for the opinion must be provided. Attention is invited to the November 2003 Report of Medical Examination which notes an injury to the Veteran's left knee, as well as to the buddy statements and private medical records submitted in June 2017. 

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

2. 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. The Veteran and his representative should be afforded the applicable time period to respond.

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. §§ 5109B, 7112 (2012).



______________________________________________
J.W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs