Citation Nr: 18143232 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-30 825 DATE: October 18, 2018 ORDER Entitlement to service connection for a right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome, including as secondary to service-connected lumbar strain with degenerative joint disease and degenerative disc disease, is denied. REMANDED Entitlement to an increased disability evaluation for lumbar strain with degenerative joint disease and degenerative disc disease, initially rated as 10 percent disabling, is remanded. FINDING OF FACT A right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome is not attributable to service; a right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome is not related (causation or aggravation) to a service-connected disease or injury. CONCLUSION OF LAW 3. The criteria for service connection for a right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from March 1974 to November 19770. These matters come before the Board of Veterans’ Appeals (Board or BVA) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Entitlement to service connection for a right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome, including as secondary to service-connected disabilities Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran filed his claim for service connection for using a VA Form 21-526EZ for fully developed claims. Under the framework for a fully developed claim (FDC), a claim is submitted in a “fully developed” status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a veteran submits all evidence relevant and pertinent to his or her claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the veteran with a VA medical examination, may still be required prior to the adjudication of the claim. See VA Form 21-526EZ. The fully developed claim form includes notice to the veteran of what evidence is required to substantiate a claim for service connection and of the Veteran’s and VA’s respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings. See id. Thus, in this case, the notice that is part of the claims form submitted by the Veteran satisfied the duty to notify. VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the Veteran’s own statements in support of his claim. The Veteran was afforded VA examinations responsive to the claim for service connection. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board has reviewed the Veteran’s statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran’s claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. At the outset, the Board notes that Veteran does not claim, and the evidence does not reflect, that his claim is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 are not applicable. Based on the evidence of record, the Board finds that the Veteran’s claim of entitlement to service connection for a right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome, including as secondary to service-connected lumbar strain with degenerative joint disease and degenerative disc disease, is denied. The Veteran has a current disability related to his right shoulder and arm; VA examination reports and treatment records reflect diagnoses of right shoulder strain, osteoarthritis of the acromioclavicular joint, bilateral carpal tunnel syndrome, and bilateral cubital tunnel syndrome. With regard to in service incurrence, no right shoulder or wrist disabilities were noted or identified during service or within one year of separation. Additionally, there is nothing to suggest that there were characteristic manifestations sufficient to identify the claimed right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome during service or within one year of separation. 38 C.F.R. § 3.303(b). However, the Veteran contends that his symptoms began in service. Additionally, regarding secondary service connection, the Veteran is service-connected for lumbar strain with degenerative joint disease and degenerative disc disease. Nonetheless, there is no competent evidence of a relationship between the Veteran’s current right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome and active service or his service-connected lumbar strain with degenerative joint disease and degenerative disc disease. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran’s service and the disability). Review of the record shows that neither the Veteran’s treating providers, nor the June 2014, November 2015, or May 2016 VA examiners, have related the Veteran’s right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome to his service or his service-connected lumbar strain with degenerative joint disease and degenerative disc disease. There is also no indication that the Veteran’s right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome were aggravated by his service-connected lumbar strain with degenerative joint disease and degenerative disc disease. In this regard, the Board observes that the June 2014 VA examination report and contemporaneous medical opinions clearly concluded that the Veteran’s claimed right shoulder disorder with carpal tunnel syndrome and cubital tunnel syndrome is less likely than not causally or etiologically related to any event, illness, or injury in service; the VA examiner noted that the earliest symptomatology related to the Veteran’s right shoulder strain, carpal tunnel syndrome, and cubital tunnel syndrome was 2006. Moreover, the November 2015 VA examination report concluded that the Veteran’s right shoulder strain was not related to the Veteran’s service; according to the VA examiner, the Veteran’s ght shoulder symptomatology, including the Veteran’s acromioclavicular joint arthropathy is due to the aging process. In addition, the May 2016 VA examination report and contemporaneous medical opinions clearly concluded that the Veteran’s claimed right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome is not proximately due to or the result of the Veteran’s service-connected lumbar strain with degenerative joint disease and degenerative disc disease; the VA examination report and contemporaneous medical opinion also concluded that the Veteran’s right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome was not aggravated beyond its natural progression by the Veteran’s service-connected lumbar strain with degenerative joint disease and degenerative disc disease. In both instances, the VA examiner noted that the upper extremity is not anatomically or pathophysiologically related to the lumbar spine. In particular, the nerve root for upper extremity pathology, such as the carpal tunnel syndrome and cubital tunnel syndrome, originates at the cervical spine. The VA examiner also noted that there is also no anatomical correlation of lumbar spine with the shoulder joint, such that lumbar spine pathology would impact the Veteran’s right shoulder strain. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). To the extent that there are lay statements, including those of the Veteran, asserting a connection between the Veteran’s right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome and either his active service or his service-connected lumbar strain with degenerative joint disease and degenerative disc disease, the Board finds that the determining the etiology of the Veteran’s right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome is beyond the competence of a lay person. While the Veteran, and other lay persons, are competent to report pain, and other observable symptoms, related to the right upper extremity, the cause of those symptoms and whether those symptoms are aggravated by another disability, are medical questions that require medical training, knowledge and expertise. Thus, these opinions are not competent. Further, even if the statements were to be found competent, the Board finds that the probative value of the general lay assertions is outweighed by the specific, well-reasoned opinions of the June 2014 and May 2016 VA examination reports and the clinical evidence of record. The VA examiners explained the reasons for the conclusions reached and based the findings on an accurate characterization of the evidence of record. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for claimed right shoulder strain with carpal tunnel syndrome and cubital tunnel syndrome, and the claim is denied. REASONS FOR REMAND Entitlement to an increased disability evaluation for lumbar strain with degenerative joint disease and degenerative disc disease, initially rated as 10 percent disabling is remanded. The Veteran asserts that the symptoms of his service-connected lumbar strain with degenerative joint disease and degenerative disc disease is more severe than presently evaluated. The Board observes that Veteran was most recently afforded a VA examination in May 2016. However, the Veteran continues to assert that his lumbar strain with degenerative joint disease and degenerative disc disease is more severe than currently evaluated. Additinally, the Board points out that the United States Court of Appeals for Veterans Claims (CAVC) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. A review of the June 2014, November 2015, and May 2016 VA examination reports of record reveals that range of motion testing for the lumbosacral spine in active and passive motion, weight-bearing, and nonweight-bearing situations was not conducted. In light of Correia, the Veteran must be provided a new VA examination, which provide range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the Veteran’s service-connected lumbar strain with degenerative joint disease and degenerative disc disease. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his service-connected lumbar strain with degenerative joint disease and degenerative disc disease. The Veteran should be requested to complete any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file and the Veteran must be notified. 2. After any additional records are associated with the claims file, the RO should schedule the Veteran for VA thoracolumbar spine examination to ascertain the current severity and manifestations of the Veteran’s service-connected lumbar strain with degenerative joint disease and degenerative disc disease. The claims file should be made available to the examiners for review in connection with the examination. The examination reports should include a statement as to the effect of the service-connected lumbar strain with degenerative joint disease and degenerative disc disease on his occupational functioning and daily activities. In particular, the VA examination must include range of motion testing for the thoracolumbar spine in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-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 VA examiner should provide a complete rationale for any opinions provided. 3. After completing all indicated development, the RO should readjudicate the claim for an increased disability rating for the service-connected lumbar strain with degenerative joint disease and degenerative disc disease, in light of all the evidence of record. If the benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. Gayle Strommen Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel