Citation Nr: 1806008 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-41 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a lower back disorder. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee. 3. Whether new and material evidence has been received to reopen a claim for service connection for left shoulder arthritis, and if so, whether the claim should be granted. 4. Whether new and material evidence has been received to reopen a claim for service connection for bilateral carpal tunnel syndrome, and if so, whether the claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1977 to August 1992, and from February 2003 to November 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In this rating decision, the RO, as relevant here, denied service connection for a lower back disorder; denied an increased rating for degenerative joint disease of the left knee (currently assigned a 10 percent rating); continued to deny service connection for left shoulder arthritis, finding the evidence submitted was not new and material; and, continued to deny service connection for bilateral carpal tunnel syndrome, finding the evidence submitted was not new and material. The Veteran timely appealed and requested a hearing. A Travel Board hearing was held in October 2017. The Veteran testified at the hearing, and a transcript of that proceeding is of record. The Board notes that regardless of what the RO has done, the Board must decide on its own whether new and material evidence has been received, prior to considering the merits of those underlying issues. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Additional evidence was provided by the Veteran, through his representative, and has been associated with the claims file. The Veteran waived consideration of this additional evidence by the local RO, and requests adjudication by the Board. The Board's decision below grants the petition to reopen the claims of entitlement to service connection for left shoulder arthritis and bilateral carpal tunnel syndrome. However, only one of these reopened claims is granted in the decision below (bilateral carpal tunnel syndrome). The other reopened claim (left shoulder arthritis) is addressed in the REMAND section below and is remanded to the Agency of Original Jurisdiction (AOJ) for further development. As to the remaining claims on appeal, service connection for a low back disorder, and entitlement to an increased rating for degenerative joint disease of the left knee, these claims are also addressed in the REMAND section below and are remanded to the AOJ for further development. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. The evidence associated with the claims file following the September 2002 denial of the Veteran's claim for service connection for left shoulder arthritis is new and material evidence. 2. The evidence associated with the claims file following the September 2002 denial of the Veteran's claim for service connection for bilateral carpal tunnel syndrome is new and material evidence. 3. Bilateral carpal tunnel syndrome is etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for left shoulder arthritis. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral carpal tunnel syndrome. 3. The criteria for direct service connection for bilateral carpal tunnel syndrome have been met. U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the RO sent correspondence throughout the appeals process, but specifically in July 2006, that informed the Veteran of what evidence was needed to establish the benefit sought, of what VA would do or had done, and of what evidence the Veteran should provide. In addition, the letter informed the Veteran of how disability ratings and effective dates are assigned. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim, with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate a claim for the benefits sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The evidence of record contains the Veteran's service treatment records, lay statements of the Veteran, as well as post-service treatment from both private and VA treatment providers. Also of record are VA examinations and private evaluations. In light of the foregoing, the Board concludes that the VA's duties to the Veteran have been fulfilled. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria & Analysis New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Left Shoulder Arthritis A February 1996 rating decision of the RO denied the Veteran's claim of service connection for left shoulder arthritis. At that time, the record showed that the Veteran complained of left shoulder pain in January 1994 and June 1995, but upon examination at an orthopedic clinic in June 1995, the Veteran was asymptomatic, both shoulders were found to be normal, no treatment was considered necessary, and no diagnosis of arthritis of the left shoulder was made. The Veteran was notified of the denial, but did not perfect an appeal, and the February 1996 rating decision became final. 38 U.S.C. § 7105 (b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The Veteran filed another claim for service connection for left shoulder arthritis in June 2002. In September 2002, the RO in St. Petersburg, Florida, continued to deny service connection for left shoulder arthritis, finding the evidence submitted was not new and material. After his second tour of active duty ended in November 2005, the Veteran filed yet another claim for service connection for left shoulder arthritis in December 2005. In June 2007, the RO in Montgomery, Alabama, again denied service connection for left shoulder arthritis, finding the evidence submitted was not new and material. The Veteran timely appealed the June 2007 rating decision. Evidence added to the claims file since the September 2002 rating decision includes VA and private treatment records and examinations, including in particular a July 2003 Statement of Medical Examination and Duty Status, wherein a determination was made that the Veteran was injured in the line of duty and that he suffered with shoulder pain, among other disorders, as a result. This opinion constitutes new and material evidence, as no evidence establishing a relationship between the Veteran's left shoulder arthritis and service was present at the time of the final September 2002 rating decision. The new evidence thus relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for left shoulder arthritis is reopened. Although this claim is reopened, as noted above, this claim is remanded for further development, and addressed in the REMAND section below. Bilateral Carpal Tunnel Syndrome A September 2002 rating decision of the RO in St. Petersburg, Florida, denied the Veteran's claim of service connection for bilateral carpal tunnel syndrome. At that time, the record showed that the Veteran had a diagnosis of bilateral carpal tunnel syndrome in November 2001, but there was no evidence establishing a nexus between his carpal tunnel syndrome and service. The Veteran was notified of the denial, but did not perfect an appeal, and the September 2002 rating decision became final. 38 U.S.C. § 7105 (b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The Veteran filed a new claim for service connection for bilateral carpal tunnel syndrome in December 2005, after his second tour of active duty ended in November 2005. In June 2007, the RO in in Montgomery, Alabama, continued to deny service connection for bilateral carpal tunnel syndrome, finding the evidence submitted was not new and material. The Veteran timely appealed this rating decision. Evidence added to the claims file since the September 2002 rating decision includes VA and private treatment records and examinations, including in particular a July 2003 Statement of Medical Examination and Duty Status that determined the Veteran was injured in the line of duty and that he suffered with bilateral carpal tunnel syndrome, among other disorders, as a result. This opinion constitutes new and material evidence, as no evidence establishing a relationship between the Veteran's bilateral carpal tunnel syndrome and service was present at the time of the final September 2002 rating decision. The new evidence thus relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for bilateral carpal tunnel syndrome is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Here, the Veteran seeks service connection for bilateral carpal tunnel syndrome. Service treatment records from the Veteran's second tour of duty were reviewed by the Board. A July 2003 Statement of Medical Examination and Duty Status reflects a finding that the Veteran was injured in the line of duty, and that the nature and extent of his injury included bilateral carpal tunnel syndrome. A June 2005 record reflects the Veteran was diagnosed with bilateral carpal tunnel syndrome and that bilateral carpal tunnel syndrome is listed on his "problem list" of disorders to be monitored and treated by VA. The Veteran's Social Security Administration (SSA) records are associated with the Veteran's claims file. A November 2010 decision of the SSA reflects the Veteran had bilateral carpal tunnel syndrome, considered to be severe, and that as a result, the Veteran was determined to be disabled since November 28, 2005. (The Veteran separated from his second tour of active duty service on November 28, 2005). An undated SSA examination report reflects the Veteran has bilateral carpal tunnel syndrome and wears bilateral wrist splints. Treatment records from the Montgomery VAMC are associated with the Veteran's claims file. A February 2010 record reflects the Veteran's "Problem List" for which he is receiving care at the VA included carpal tunnel syndrome. The Veteran testified at a Board hearing in October 2017 that he started having problems with his hands during his first tour of duty; that he first got a test for carpal tunnel syndrome during his second tour of duty, but it was probably there all the time; that part of his job in the military was changing tires on military vehicles every day; that he now sees a doctor every 3 or 4 months; and that he wears a wrist brace on both hands to support the pain he is having. The Board finds that the Veteran's report of pain due to bilateral carpal tunnel syndrome in service to be credible and consistent with the July 2003 Statement of Medical Examination and Duty Status wherein a finding was made that the Veteran was injured in the line of duty, and the nature and extent of his injury included bilateral carpal tunnel syndrome. Based upon the Veteran's service treatment records, SSA records, post service treatment records from the Montgomery VAMC records, and the Veteran's credible testimony discussed above, the Board finds that the criteria for establishing service connection for bilateral carpal tunnel syndrome have been met. The Veteran has a clearly established diagnosis of bilateral carpal tunnel syndrome, and the July 2003 Statement of Medical Examination and Duty Status establishes an etiological relationship between his service and his current bilateral carpal tunnel syndrome. After consideration of the entire record and the relevant law, the Board finds that competent, credible, and probative evidence establishes that the Veteran's bilateral carpal tunnel syndrome is etiologically related to his active service. ORDER New and material evidence has been presented, and the claim for service connection for left shoulder arthritis is reopened. New and material evidence has been presented, and the claim for service connection for bilateral carpal tunnel syndrome is reopened. Service connection for bilateral carpal tunnel syndrome is granted. REMAND The Board remands three issues on appeal: service connection for a lower back disorder; increased rating for degenerative joint disease of the left knee; and, service connection for left shoulder arthritis. As to the Veteran's claim for service connection for a lower back disorder, the Veteran testified as his hearing before the undersigned that he injured his back in service when he fell off the side of a truck. Treatment records reflect chronic complaints of back pain in service and post-service, including a July 2003 Statement of Medical Examination and Duty Status that determined the Veteran was injured in the line of duty and that he suffered with back pain, and a November 2010 SSA record that reflects the Veteran had debilitating pain secondary to progressive osteoarthritis of the lumbar spine. While the Veteran has undergone numerous VA examinations for a number of different claims, it does not appear he underwent an examination specifically for his lower back disorder. Thus, on remand, the Veteran must obtain a VA examination to determine the nature and etiology of his lower back disorder. As to the Veteran's claim for an increased rating for degenerative joint disease of the left knee, he was last provided a VA examination to address the severity of his degenerative joint disease of the left knee in April 2015. In October 2017, more than two years later, the Veteran testified at his hearing before the undersigned that his degenerative joint disease of the left knee has worsened since his last evaluation. A Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Since the evidence of record suggests a worsening of the Veteran's degenerative joint disease of the left knee, VA's duty to assist requires a "thorough and contemporaneous" medical examination. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Lastly, as to the Veteran's claim of service connection for left shoulder arthritis, an opinion is needed to address whether the Veteran's left shoulder arthritis is related to his military service. The Veteran testified at his hearing before the undersigned that he injured his left shoulder in service when he fell off the side of a truck. Treatment records reflect chronic complaints of left shoulder pain in service and post-service, including a July 2003 Statement of Medical Examination and Duty Status that determined the Veteran was injured in the line of duty and that he suffered with shoulder pain. Thus, on remand, the Veteran must obtain a VA examination to determine the nature and etiology of his left shoulder arthritis. While the Veteran was afforded a VA examination that addressed his left shoulder arthritis in July 2006, the examiner did not address whether the left shoulder arthritis was related to the Veteran's service. Accordingly, the claims are remanded for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the AOJ. 2. The Veteran must be provided a VA examination by an appropriate examiner, to determine whether it is at least as likely as not that the Veteran's current lower back disorder either began in or is otherwise linked to his time in service. The entire claims file, to include a copy of this remand, must be made available to and reviewed by the examiner. The examiner must provide a diagnosis for each lower back disorder found to be present. For each such disorder, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the lower back disorder is related to the Veteran's active service. In providing his/her opinion, the examiner must specifically comment on the following: a) the July 2003 Statement of Medical Examination and Duty Status that determined the Veteran was injured in the line of duty and that he suffered with back pain; b) the November 2010 SSA record that reflects the Veteran had debilitating pain secondary to progressive osteoarthritis of the lumbar spine; and, c) the Veteran's lay statements regarding continuous symptoms of back pain since service. The examiner is advised that the Veteran is competent to report history and symptoms, and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, the examiner should provide a rationale for doing so. 3. The Veteran must be provided a VA examination by an appropriate examiner to assess the current severity of his degenerative joint disease of the left knee. Any indicated studies should be performed. The examiner must review the results of any studies, to include x-rays, prior to completing the examination report. The examination report must include a discussion of the Veteran's documented medical history and lay statements. The examiner must report the range of motion measurements for both knees in active motion, passive motion, weight-bearing, and non-weight-bearing (if applicable). If the examiner is unable to conduct the required testing, or concludes the requested testing is not necessary, he or she must clearly explain why that is so. See Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must further comment as to whether there is any pain, weakened movement, excess fatigability or incoordination on movement, and whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during any flare-ups. All limitation of function must be identified. A rationale must be given for all opinions rendered. 4. The Veteran must be provided a VA examination by an appropriate examiner, to determine whether it is at least as likely as not that the Veteran's current left shoulder arthritis either began in or is otherwise linked to his time in service. The entire claims file, to include a copy of this remand, must be made available to and reviewed by the examiner. The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that any current left shoulder arthritis is related to the Veteran's active service. In providing his/her opinion, the examiner must specifically comment on the following: a) the July 2003 Statement of Medical Examination and Duty Status that determined the Veteran was injured in the line of duty and that he suffered with shoulder pain; b) the July 2006 VA examination that diagnosed the Veteran with left shoulder arthritis; and, c) the Veteran's lay statements regarding continuous symptoms of left shoulder pain since service. The examiner is advised that the Veteran is competent to report history and symptoms, and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, the examiner should provide a rationale for doing so. 5. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity 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. §§ 5109B, 7112 (2012). ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs