Citation Nr: 18142787 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 14-41 082A DATE: October 16, 2018 ORDER As new and material evidence has been submitted regarding the claim for service connection for a right ankle condition associated with right knee sprain with internal derangement, the claim is reopened. As new and material evidence has been submitted regarding the claim for service connection for a psychiatric disability, to include depression and personality disorder, the claim is reopened. As new and material evidence has been submitted regarding the claim for service connection for carpal tunnel syndrome of the right hand associated with right knee sprain with internal derangement, the claim is reopened. Entitlement to service connection for a right ankle condition associated with right knee sprain with internal derangement is denied. Entitlement to service connection for carpal tunnel syndrome of the right hand associated with right knee sprain with internal derangement is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for service-connected intervertebral disc syndrome, thoracolumbar spine, is remanded. Entitlement to an evaluation in excess of 20 percent prior to July 1, 2015, and an evaluation in excess of 10 percent, effective July 1, 2015, for service-connected laxity of the right knee is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected right knee sprain with internal derangement is remanded. Entitlement to an evaluation in excess of 20 percent prior to July 1, 2015, and an evaluation in excess of 10 percent, effective July 1, 2015, for service-connected right hip flexor muscle strain is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected carpal tunnel syndrome of the left wrist is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected right lower extremity radiculopathy is remanded. Entitlement to service connection for a right shoulder disability associated with right knee sprain with internal derangement is remanded. Entitlement to service connection for a psychiatric disability, to include depression and a personality disorder, is remanded. Entitlement to individual unemployability (TDIU) is remanded.   FINDINGS OF FACT 1. By a March 2004 rating decision, the Veteran’s claim for service connection for a right ankle condition was denied due to a lack of evidence showing that a right ankle condition is related to the Veteran’s service-connected right knee condition, a lack of evidence of this disability during military service, and a lack of evidence documenting current manifestations. 2. Evidence received since the March 2004 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating a claim for service connection for a right ankle condition. 3. By a September 2003 rating decision, the Veteran’s claim for service connection for carpal tunnel syndrome of the right hand associated with right knee sprain with internal derangement was denied because the medical evidence of record failed to show that this disability had been clinically diagnosed. 4. Evidence received since the September 2003 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating a claim for service connection for carpal tunnel syndrome of the right hand associated with right knee sprain with internal derangement. 5. By a September 2003 rating decision, the Veteran’s claim for service connection for a mental condition was denied because the medical evidence of record failed to show that this disability had been clinically diagnosed. 6. Evidence received since the September 2003 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating a claim for service connection for a psychiatric disability, to include depression and a personality disorder. 7. The evidence of record does not establish the Veteran’s current carpal tunnel syndrome of the right hand was caused or aggravated by his military service or by his service-connected right knee disabilities. 8. The evidence of record does not establish the Veteran’s current right ankle tendonitis was caused or aggravated by his military service or by his service-connected right knee disabilities. CONCLUSIONS OF LAW 1. The March 2004 rating decision denying the Veteran’s claim for service connection for a right ankle disability is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim for service connection for a right ankle disability has been submitted. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The September 2003 rating decision denying the Veteran’s claim for service connection for carpal tunnel syndrome of the right hand is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. New and material evidence sufficient to reopen the Veteran’s claim for service connection for carpal tunnel syndrome of the right hand has been submitted. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 5. The September 2003 rating decision denying the Veteran’s claim for service connection for a mental condition is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 6. New and material evidence sufficient to reopen the Veteran’s claim for service connection for a psychiatric disability, to include depression and personality disorder, has been submitted. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).   7. The criteria for entitlement to service connection for carpal tunnel syndrome of the right hand associated with right knee sprain with internal derangement have not been met. See 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 8. The criteria for entitlement to service connection for right ankle tendonitis associated with right knee sprain with internal derangement have not been met. See 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1997 to January 2001. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or the 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 a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. The Board notes that additional evidence was associated with the claims file after the most recent supplemental statement of the case (SSOC) was issued without a waiver of initial review of this evidence by the Agency Original Jurisdiction. However, as this evidence either duplicates evidence already of record or is not relevant to the claims being decided in this determination, the Board may proceed to adjudicate the claims as done below with no prejudice to the Veteran. New and Material Evidence New evidence means 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. 38 C.F.R. § 3.156 (a) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). 1. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for a right ankle condition associated with right knee sprain with internal derangement. The issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran’s previously denied claim of entitlement to service connection for a right ankle condition. This claim was denied in a March 2004 rating decision. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108 (2012). The Veteran’s claim for service connection for a right ankle condition was denied in March 2004 due to a lack of evidence showing that a right ankle condition is related to the Veteran’s service-connected right knee condition, a lack of evidence of this disability during military service, and a lack of evidence documenting current manifestations. At the time of this denial, the Veteran’s service treatment records, post-service medical records, and statements were considered. The new evidence submitted since this denial consists primarily of statements from the Veteran and post-service medical records, to include an August 2012 VA examination report. With regard to the newly submitted post-service medical records, the Board notes that the August 2012 VA examination report reveals a diagnosis of tendonitis of the right ankle. Therefore, as the newly submitted medical records document current manifestations which were not of record at the time of the March 2004 rating decision, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a right ankle condition. As such, this claim for service connection is reopened. The Board will adjudicate the reopened claim below. As the RO also reopened the claim and adjudicated it on the merits, the Board can proceed. 2. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for carpal tunnel syndrome of the right hand associated with right knee sprain with internal derangement, and whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for a psychiatric disability, to include depression and a personality disorder. The issues for resolution before the Board are whether new and material evidence has been submitted sufficient to reopen the Veteran’s previously denied claims of entitlement to service connection for carpal tunnel syndrome of the right hand and a psychiatric disability, to include depression and a personality disorder. The Veteran was denied service connection for a mental condition and for right hand carpal tunnel syndrome in a September 2003 rating decision because the medical evidence of record failed to show that these disabilities had been clinically diagnosed. At the time of these denials, the Veteran’s service treatment records, post-service medical records, and statements were considered. The new evidence submitted since these denials consists primarily of statements from the Veteran and additional post-service medical records. With regard to the newly submitted post-service medical records, the claims file contains an August 2012 VA examination report that notes a diagnosis of carpal tunnel syndrome of the right wrist and an August 2012 VA mental disorder examination report that notes a diagnosis of a personality disorder, not otherwise specified. As the new evidence of record reflects diagnoses of the Veteran’s claimed disabilities, the Board finds that this newly submitted evidence relates to unestablished facts necessary to substantiate the claims for service connection for carpal tunnel syndrome of the right hand and a psychiatric disability, to include depression and a personality disorder. As such, these claim for service connection are reopened. With regard to the Veteran’s psychiatric disability claim, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. With regard to the Veteran’s carpal tunnel syndrome of the right hand claim, the Board will adjudicate the reopened claim below. As the RO also reopened the claim and adjudicated it on the merits, the Board can proceed. Service Connection Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310 (a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. The Veteran is seeking service connection for carpal tunnel syndrome of the right hand and a right ankle condition associated with right knee sprain with internal derangement. A review of his service treatment records reveals complaints of wrist popping and stiffness on November 5, 1997. At this time, the Veteran reported a duration of these symptoms lasting 3 years. The Veteran was prescribed motrin as needed and directed to rest each hand for a few minutes when typing for prolonged periods. The service treatment records do not reflect complaints, treatment, or diagnoses of a right ankle condition of any kind. In August 2012, the Veteran underwent pertinent VA examinations. In the wrist portion of the examination report, the Veteran was noted as having carpal tunnel syndrome of the right wrist. He asserted that, due to physical training and push-ups while on active duty, he developed sharp right wrist pain, stiffness, and weakness. The examiner concluded that the Veteran’s right wrist condition documented in November 5, 1997, was not severe enough or prolonged enough or repetitive enough to cause his current right wrist condition. In the ankle portion of the examination, the Veteran was noted as having tendonitis of the right ankle. The Veteran reported that, as a result of his service-connected right knee condition, he has an antalgic gait and has had several falls that have caused pain and stiffness in his right ankle. He reported no trauma or surgery to his right ankle. With regard to the Veteran’s right ankle condition and carpal tunnel syndrome of the right wrist, the examiner determined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or a result of the Veteran’s service-connected condition. The examiner stated that the falls caused by his service-connected right knee condition have not been severe enough or frequent enough to cause or aggravate his right hand condition, carpal tunnel syndrome, and right ankle condition. The Veteran has no documentation of medical treatment or evaluations after these falls that would indicate that the claimed conditions resulted from or were aggravated by these falls. With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2017). The Board acknowledges the Veteran’s reports in November 1997 that he had been experiencing wrist popping and stiffness for the last 3 years. Despite these reports, there is no contemporaneous evidence demonstrating that the Veteran had a chronic right wrist or right hand disability upon entrance into active duty service. A February 1997 Report of Medical Examination revealed normal upper extremities upon clinical evaluation. Moreover, the Veteran gave no indication of right hand or wrist complaints on his February 1997 Report of Medical History. As such, the Board finds that the Veteran is considered to have been in sound condition relating to his right hand and wrist upon entrance into service and there is no clear and unmistakable evidence that the Veteran had a right hand or wrist disease or injury prior to service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). With regard to whether the Veteran’s right hand carpal tunnel syndrome began during or was caused by service, the August 2012 VA examiner concluded that the Veteran’s right wrist condition documented in November 5, 1997, was not severe enough or prolonged enough or repetitive enough to cause his current right wrist condition. There is no medical evidence to the contrary. The Veteran’s service treatment records contain no complaints, treatment, or diagnoses of a right hand or wrist condition beyond the November 5, 1997, record. There is also no persuasive evidence of continuity of right wrist symptoms after service. As such, the medical evidence of record does not support the assertion that his current carpal tunnel syndrome of the right wrist began during or is related to his active duty service in any way. With regard to the Veteran’s right ankle condition, the Board notes that the Veteran’s service treatment records contain no indication of a right ankle condition, and there is no medical evidence suggesting a direct link between the Veteran’s current right ankle condition and his service. Moreover, the Veteran has never asserted that he injured his right ankle in service or that his current right ankle condition began as a result of his service. With regard to granting service connection on a secondary basis, the Board notes that the Veteran is service connected for a right knee sprain and laxity of the right knee. However, there is no medical evidence of record reflecting that his carpal tunnel syndrome of the right hand or wrist or his right ankle tendonitis is related to these service-connected disabilities or to falls caused by these service-connected disabilities. The August 2012 VA examiner specifically found that the claimed conditions are less likely than not (less than 50 percent probability) proximately due to or a result of the Veteran’s service-connected knee condition. There is no medical evidence to the contrary. The Board notes the Veteran’s assertions that he has carpal tunnel syndrome of the right hand as a result of doing push-ups during in-service physical training or as a result of his service-connected right knee disability and his assertions that he has a right ankle condition as a result of his service-connected right knee disability. With regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or 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). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Here, the Veteran’s complaints as to duration of symptoms are certainly capable of lay observation. However, the Board finds that the causes of his currently diagnosed carpal tunnel syndrome of the right hand and his right ankle tendonitis are not capable of lay observation, as the Veteran does not have training in neurological or orthopedic diseases. By contrast, the medical professional who provided the August 2012 VA opinions reviewed the Veteran’s claims file and offered opinions with supporting explanations as to why, in his or her medical judgment, the Veteran’s right hand carpal tunnel syndrome is not related to service or a service-connected disability and his right ankle tendonitis is not related to a service-connected disability. As such, the Board places the most significant weight on the August 2012 VA medical opinion, which finds against service connection. Thus, the Veteran’s claims for service connection for carpal tunnel syndrome of the right hand and right ankle tendonitis must fail on direct and secondary bases. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claims for service connection for a right ankle condition and for carpal tunnel syndrome of the right hand associated with right knee sprain with internal derangement, and the benefit-of-the-doubt rule is not for application. REASONS FOR REMAND Additional development is needed prior to the adjudication of the remaining claims on appeal. A 2013 VA treatment note reflects the Veteran was pursuing disability benefits from the Social Security Administration. The RO should obtain these records, as they may be pertinent to his claims for increased ratings and for unemployability. With regard to the Veteran’s right shoulder disability, the Veteran underwent a pertinent VA examination in August 2012, at which he was noted as having bursitis of the right shoulder and synovitis of the acromioclavicular joint. The Veteran asserted that he hurt his shoulder while performing push-ups for physical training while on active duty. The examiner determined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or a result of the Veteran’s service-connected condition. However, the examiner failed to provide an opinion as to whether the Veteran has a right shoulder disability as a result of his active duty service. In light of the Veteran’s assertions at the August 2012 VA examination that he hurt his shoulder doing pushups while on active duty, this issue should be remanded in order to obtain a new VA opinion on the matter. With regard to the issue of entitlement to service connection for a psychiatric disability, to include depression and a personality disorder, the claims file contains an August 2012 VA examination report, in which the Veteran was diagnosed with a personality disorder, not otherwise specified, and substance abuse reported to be in remission. Upon review of the claims file and examination of the Veteran, the examiner found that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner found that neither of his diagnosed conditions is believed to be related to his military service. The Veteran reported that he always had a problem with authority prior to the military. He engaged in anti-social behavior prior to the military. Substance abuse predated his military exposure and was not made more severe by his military experience. The Veteran appears frustrated by his current situation but did not appear clinically depressed. His only anxiety symptom reported was worrying about paying child support, which did not appear to approach clinical significance.   More recently, the Veteran submitted an April 2018 statement from a clinical psychologist at a VA mental health clinic. The psychologist stated that she had treated the Veteran from April 2016 to December 2017. While in treatment, she diagnosed him with unspecified depressive disorder. Based on her treatment, as well as a review of his treatment record with other providers, the psychologist opined that his chronic pain is a significant contributing factor to his depressive symptoms. The Board finds the April 2018 opinion is inadequate, as the psychologist that issued the April 2018 statement did not identify specific disabilities which contributed to his depressive symptoms. Although the VA physician would clearly have access to the Veteran’s VA treatment records, she did not state she reviewed them nor did she discuss his medical history. There was no explanation for her conclusion, which is essential in this case, considering the 2012 VA examination discussed the Veteran’s history of manipulative behavior and the fact pain was not mentioned as contributing to his mental health issues until recently. As such, the Veteran should be provided a new VA examination on this matter. With regard to the Veteran’s increased rating claims pertaining to his service-connected laxity of the right knee, right knee sprain with internal derangement, right hip flexor muscle strain, carpal tunnel syndrome of the left wrist, right lower extremity radiculopathy, and intervertebral disc syndrome, thoracolumbar spine, the Board notes that the Veteran underwent pertinent VA examinations pertaining to these disabilities most recently in either August 2012 or May 2014. In light of the fact that several years have passed since these examinations were conducted, the Veteran should be scheduled for new VA examinations to determine the current severity of these service-connected disabilities. All outstanding VA treatment records should be associated with the claims file.   As the issue of entitlement to TDIU can be impacted by resolution of the Veteran’s claims being remanded, the Board finds that the issue of entitlement to TDIU must be deferred, as it is inextricably intertwined with the issues being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records from the Mountain Home VA Medical Center (VAMC) and associated outpatient clinics from February 2015 to the present. 2. Request the Veteran’s records from the Social Security Administration. 3. Return the claims file to the VA examiner who provided the August 2012 VA right shoulder opinion so that an addendum opinion may be obtained. If the same examiner is not available, an opinion should be provided by another VA examiner. The examiner should provide an opinion as to whether it is at least as likely as not that any diagnosed right shoulder disability was caused or aggravated by his active duty. The examiner is advised that the term “as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. If additional examination is needed to render the above-requested opinion, such should be provided. 4. Schedule the Veteran for a VA psychiatric examination. Upon review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Diagnose all current psychiatric disabilities. (b.) Opine as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed psychiatric disorder was incurred in or is otherwise related to his active service. (c.) Opine as to whether it is at least as likely as not that any diagnosed psychiatric disability was caused or aggravated by a service-connected disability. See 2018 letter regarding pain. The examiner is advised that the term “as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. 5. Schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of his service-connected intervertebral disc syndrome, thoracolumbar spine. The examiner should opine as to the impact of the Veteran’s intervertebral disc syndrome, thoracolumbar spine on his ability to obtain and maintain substantially gainful employment. 6. Schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of his service-connected laxity of the right knee and service-connected right knee sprain with internal derangement. The examiner should opine as to the impact of the Veteran’s laxity of the right knee and right knee sprain with internal derangement on his ability to obtain and maintain substantially gainful employment. 7. Schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of his service-connected right hip flexor muscle strain. The examiner should opine as to the impact of the Veteran’s right hip flexor muscle strain on his ability to obtain and maintain substantially gainful employment. 8. Schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of his service-connected carpal tunnel syndrome of the left wrist. The examiner should opine as to the impact of the Veteran’s carpal tunnel syndrome of the left wrist on his ability to obtain and maintain substantially gainful employment. 9. Schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of his service-connected right lower extremity radiculopathy. The examiner should opine as   to the impact of the Veteran’s right lower extremity radiculopathy on his ability to obtain and maintain substantially gainful employment. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Durham, Counsel