Citation Nr: 1802417 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 08-06 924A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for bilateral carpal tunnel syndrome (CTS). 3. Entitlement to service connection for disability of the bilateral upper extremity manifested by numbness. 4. Entitlement to a rating in excess of 10 percent for depression before June 6, 2013, and in excess of 50 percent thereafter. 5. Entitlement to a rating in excess of 10 percent for a cervical spine disability. 6. Entitlement to a compensable rating for sinusitis. 7. Entitlement to a total disability rating based upon individual unemployability as a result of service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from July 1989 to December 1989 and from March 2005 to June 2006, including service in Southwest Asia from May 2005 to May 2006. He also had additional service in the National Guard from 1989 until 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2007, September 2009, May 2010, and March 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the issues on appeal in September 2014 and May 2016. Also in May 2016, the Board combined the issue of entitlement to service connection for bilateral upper extremity numbness with the Veteran's claim of entitlement to an increased rating for a cervical spine disability, because the rating criteria direct VA to consider any neurological manifestations of a spine disability. However, for reasons discussed below and consistent with the September 2016 SSOC, the Board has again separated out the issue, and such is reflected on the title page of the decision. Regardless, neurological manifestations associated with the Veteran's cervical spine disability will still be considered in adjudicating the increased rating claim. The issues of entitlement to increased ratings for a depressive disorder and cervical spine disability, and a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is at least in relative equipoise as to whether the Veteran's current bilateral carpal tunnel syndrome, bilateral epicondylitis, and right shoulder disabilities, were incurred in service. 2. At no time during the appeal period has the Veteran's sinus disability been manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for bilateral carpal tunnel syndrome have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria for service connection for a disability of the bilateral upper extremity manifested by numbness, and diagnosed as epicondylitis, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for a compensable disability for a sinus disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6513 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The Veteran is seeking service connection for a right shoulder disability and a bilateral upper extremity disability, to include carpal tunnel syndrome or other disability manifested by numbness. Following review of the record, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Regulations also provide that service connection is warranted 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Here, the evidence of record shows current disabilities. In this regard, the record shows a diagnosis of right carpal tunnel syndrome, confirmed on nerve conduction study, as early as August 2008, and an October 2014 VA examiner diagnosed bilateral carpal tunnel syndrome based on November 2013 EMG/NCS studies. The examiner also diagnosed bilateral epicondylitis. Additionally, following complaints of ongoing right shoulder pain, imaging of the right shoulder in December 2009 showed degenerative changes at the glenohumeral joint, and a right shoulder superior labral tear was found on imaging in July 2010. The record also supports in-service incurrence. For example, in May 2006, the Veteran complained of a six month history of right shoulder pain. Additionally, the Veteran's military occupational specialty during his period of active duty, as well as throughout his 20 years of National Guard service, was mechanic, with duties associated with heavy use of the right upper extremity, as reported by the Veteran. Finally, the record contains a positive nexus opinion, albeit not intended as such. In this regard, in October 2014, concerning the Veteran's bilateral carpal tunnel syndrome, bilateral epicondylitis, and right shoulder disability, a VA examiner offered an opinion that the Veteran's post-service work as a mechanic from 2006 to 2009, which was a physically demanding job involving repetitive movements, made him prone to develop those disabilities. In an August 2016 addendum, the examiner explained that the development of carpal tunnel syndrome does not occur during short periods such as the Veteran's two periods of active duty from July 1989 to December 1989, or March 2005 to June 2006; rather, it is a longstanding process. However, what the examiner did not consider or address, but is shown by the record is that, in addition to his two periods of active duty, the Veteran had over 20 years of National Guard service during which time he served as a mechanic, in addition to serving as a mechanic during his period of active duty from 2005 to 2006. Thus, the October 2014 and August 2016 opinions actually support that the Veteran's work as a mechanic in service, including his National Guard service, contributed at least in part to the development of his bilateral upper extremity disabilities discussed herein. The examiner offered no explanation as to why the Veteran's post-service work as a mechanic from 2006 to 2009 would cause or contribute to the development of such disabilities, but that the same duties performed in service during the immediate period prior, or even during his National Guard service during the same period from 2006 to 2009, would not contribute to the development of those disabilities. Indeed, such a finding would seem illogical. And, given the examiner's explanation based on medical literature that the development of disabilities such as CTS, is a long standing process, the Board finds that the opinion provides a positive nexus between the Veteran's duties as a mechanic in service, and his current disabilities of bilateral carpal tunnel syndrome, bilateral epicondylitis, and right shoulder disability. To the extent that the examiner's opinions are negative and weigh against the Veteran's claims, the Board notes that not only did the examiner not consider the Veteran's lengthy National Guard service as a mechanic or adequately address why the same duties performed immediately prior to June 14, 2006 (when the Veteran separated from active duty), would not have the same impact as duties performed on or after June 14, 2006, but he also did not address earlier evidence of degenerative changes in the right shoulder shown in 2009. Thus, the opinion in that regard is of limited probative value. Significantly, there is no other negative opinion evidence. Thus, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current disabilities of bilateral carpal tunnel syndrome, bilateral epicondylitis, and a right shoulder disability diagnosed as a right shoulder superior labral tear, are related to his duties as a mechanic in service. After resolving all doubt in favor of the Veteran, the Board finds that service connection for those disabilities is warranted. II. Increased Rating The Veteran's sinus disability is rated pursuant to Diagnostic Code 6513 pertaining to chronic maxillary sinusitis. Sinusitis is rated under the General Formula for Sinusitis, which assigns a noncompensable disability rating for sinusitis shown by x-ray only. A higher 10 percent disability rating when there are one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis. In a Note, the General Rating Formula defines an incapacitating episode of sinusitis as one that requires bed rest and treatment by a physician. Id. Here, the Veteran has not asserted, and the record does not show, any incapacitating episodes of or physician-prescribed bedrest for sinusitis, or sinusitis requiring prolonged antibiotic treatment. Nor does the record support at least three episodes of non-incapacitating episodes per year manifested by headaches, pain, and purulent discharge. On the contrary, during a September 2011 VA examination, the Veteran reported treatment with nasal spray or over-the-counter antihistamines and no functional impairment due to sinusitis. Ongoing treatment notes show sinus-related complaints in January 2010 and February 2010, pursuant to which antibiotics were prescribed and imaging confirmed sinusitis. Similarly, in October 2011 and November 2011 imaging showed sinusitis and antibiotics were prescribed. Thereafter, the next sinus complaint occurred in February 2013, at which time a three-day course of antibiotics was prescribed. Then, in January 2017, the Veteran complained of "sinus congestion" but, notably, x-rays did not show sinusitis. The record during the relevant period on appeal is otherwise silent for incapacitating or non-incapacitating episodes of sinusitis. To the extent that the Veteran believes he has near constant sinusitis or has attributed various symptoms of nasal congestion and sneezing to his sinus disability, as noted in the September 2011 VA examination report, the Board observes that the Veteran also has nonservice-connected rhinitis, which can account for his symptoms. Indeed, in January 2017, when the Veteran complained of believed "sinus congestion," rhinitis was diagnosed with noted poor compliance with fluticasone, and x-rays did not show sinusitis. Similarly, in May 2012, the Veteran was also diagnosed with rhinitis for which he was prescribed flunisolide nasal daily. Thus, his subjective reports as to his sinus symptoms are deemed not probative. As a final matter, the Board acknowledges that the Veteran's representative has requested a new examination with x-rays to assess the Veteran's current condition because the most recent VA sinus examination occurred in 2011. However, even considering a general assertion in May 2016 that various disabilities including sinusitis have worsened, the record does not support as much. Moreover, given ongoing VA and private treatment records dating throughout the period until 2017, which include x-rays in January 2017, the Board finds that the record as it stands is adequate upon which to rate the Veteran's claim, and remand for a new examination is not warranted. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). In sum, as discussed, the evidence of record does not even more nearly approximate three non-incapacitating episodes or any incapacitating episodes of sinusitis during a 12 month period at any point during the period on appeal. Thus, a compensable rating is not warranted. ORDER Service connection for a right shoulder disability is granted. Service connection for bilateral carpal tunnel syndrome is granted. Service connection for a bilateral upper extremity disability manifested by numbness, diagnosed as epicondylitis, is granted. A compensable disability rating for sinusitis is denied. REMAND Regrettably, the Board finds that further remand is necessary prior to adjudication of the Veteran's remaining claims for increased ratings and a TDIU. Initially, concerning the psychiatric increased rating claim, the Board observes that the Veteran has received private psychiatric treatment since at least as early as January 2012, and a VA treatment note dated as recent as October 2016 references such private treatment. Although there are summaries of treatment of record from a private provider, ongoing private treatment notes have not been associated with the record. The Board also observes that those summaries, particularly one dated in January 2013, portray a significantly more severe psychiatric disorder than as reflected in VA records. Thus, remand is necessary in order to obtain all outstanding private treatment records. Additionally, on remand, the Board finds that a new examination should be provided. Next, concerning the cervical spine increased rating claim, the Veteran was last examined in April 2010, nearly 8 years ago. Although range of motion testing was performed at that time, the examiner did not indicate whether range of motion testing was conducted in active motion, passive motion, weight-bearing and non-weight-bearing. In Correia v. MacDonald, the Court found that 38 C.F.R. § 4.59 requires that VA joint examinations must, where possible, include range of motion results for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 28 Vet. App 158, 168-169. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a new VA examination is required. Finally, given the additional grants of service connection herein, the Board finds that an opinion on employability is necessary prior to adjudicating the Veteran's TDIU claim. Updated VA treatment records should also be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records dating from February 2017 to the present. If the requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. Ask the Veteran to identify any private mental health providers who have treated him since service. After securing the necessary releases, the AOJ should request any relevant treatment records (and not merely summaries of treatment). If the requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 3. Send the Veteran and his representative TDIU application VA Form 21-8940 to provide relevant current information concerning the Veteran's work and educational history. 4. After completing the above actions and associating any additional records with the claims file, schedule the Veteran for a VA examination to determine the severity of his service-connected depressive disorder. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. The examiner should also assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and explain the significance of the score. The examiner should provide an opinion as to the extent that the Veteran's diagnosed depressive disorder has impaired his ability to meet the demands of a job, either sedentary or physical, at any time during the course of the appeal. The examiner's opinion should include an evaluation of the limitations and restrictions imposed by his psychiatric disorder on such routine work activities as interacting with co-workers, customers, and supervisors. 5. Schedule the Veteran for a VA cervical spine examination to determine the current severity of his degenerative arthritis of the cervical spine. The claims file should be made available for review, and the examination report should reflect that such review occurred. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. 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. The examiner should describe all symptomatology, including neurological residuals, if any, associated with the Veteran's degenerative arthritis of the cervical spine. Finally, the examiner should provide opinion as to the extent that the Veteran's service-connected cervical spine disability has impaired his ability to meet the demands of a job, either sedentary or physical, at any time during the course of the appeal. The examiner's opinion should include an evaluation of the limitations and restrictions imposed by his service-connected cervical spine disability on such routine work activities as interacting with coworkers; sitting, standing, and walking; plus lifting, carrying, pushing, and pulling. 6. Schedule the Veteran for a TDIU examination. The claims file should be made available to and be reviewed by the examiner prior to providing an opinion, and all necessary tests should be conducted. The examiner is asked to evaluate the extent to which the Veteran's now service-connected disabilities (including his now service-connected right shoulder disability, bilateral carpal tunnel, and bilateral epicondylitis disabilities), separately, or in combination, have impaired his ability to meet the demands of a job, either sedentary or physical, at any time during the course of the appeal. The opinion should include an evaluation of the limitations and restrictions imposed by his service-connected impairments on such routine work activities as interacting with coworkers or customers; sitting, standing, and walking; plus lifting, carrying, pushing, and pulling. A rationale for any opinion expressed should be set forth. If an examiner cannot provide an opinion without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g. lack of sufficient information or evidence, etc.) 7. After completing the requested actions and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs