Citation Nr: 18146148 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-37 919 DATE: October 30, 2018 ORDER Entitlement to service connection for headaches is denied. Entitlement to service connection for cervical radiculopathy, right upper extremity, to include as secondary to right carpal tunnel syndrome, is denied. Entitlement to service connection for major depressive disorder is denied. Entitlement to an effective date earlier than October 6, 2014 for the grant of service connection for left lower extremity peripheral neuropathy involving the common peroneal nerve is denied. Entitlement to an effective date earlier than October 6, 2014 for the grant of service connection for right lower extremity peripheral neuropathy involving the common peroneal nerve is denied. REMANDED Entitlement to an increased rating in excess of 40 percent for chronic lumbar strain with degenerative disc changes is remanded. Entitlement to an increased rating in excess of 10 percent for right lower extremity peripheral neuropathy involving the sciatic nerve is remanded. Entitlement to an increased rating in excess of 10 percent for left lower extremity peripheral neuropathy involving the sciatic nerve is remanded. Entitlement to an increased rating in excess of 10 percent for right lower extremity peripheral neuropathy involving the common peroneal nerve is remanded. Entitlement to an increased rating in excess of 10 percent for left lower extremity peripheral neuropathy involving the common peroneal nerve is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. There is no competent evidence of record showing that the Veteran has a current diagnosis of a headache disorder. 2. There is no competent evidence of record that establishes the Veteran’s cervical radiculopathy, right upper extremity is due to or the result of his active service, to include as secondary to right carpal tunnel syndrome. 3. There is no competent evidence of record showing that the Veteran has a current diagnosis of major depressive disorder. 4. Prior to October 6, 2014, there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for left lower extremity peripheral neuropathy involving the common peroneal nerve. 5. Prior to October 6, 2014, there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for right lower extremity peripheral neuropathy involving the common peroneal nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for cervical radiculopathy, right upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria for entitlement to service connection for major depressive disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for entitlement to an effective date earlier than October 6, 2014 for the grant of service connection for left lower extremity peripheral neuropathy involving the common peroneal nerve have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 5. The criteria for entitlement to an effective date earlier than October 6, 2014 for the grant of service connection for left lower extremity peripheral neuropathy involving the common peroneal nerve have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from March 1976 to March 1982 and from August 1984 to September 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2014 and July 2015 rating decisions by the Portland, Oregon, Regional Office (RO) of the United States Department of Veterans Affairs. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Finally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection for headaches The Veteran contends that he has headaches that are related to his military service. The Veteran’s service treatment records are silent as to any complaints, treatments or diagnosis of headaches while in service. The Veteran’s post-service VA treatment records do not reflect any complaints, treatments or diagnosis of headaches. Such were expressly inquired after at the August 2012 VA examination. While the Veteran is competent to report having headaches, as these are observable symptoms, he lacks the knowledge and training to conclude whether such are part of a chronic disease or disorder. He cannot observe a link between separate incidents. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board concludes that the Veteran does not have a current diagnosis of a chronic headache disorder, and has not had one at any time since the filing of the claim. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 255 (1992). Accordingly, service connection for headaches is not warranted. The Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim for service connection for headaches, the doctrine is not applicable. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Service connection for cervical radiculopathy, right upper extremity, to include as secondary to right carpal tunnel syndrome The Veteran contends that he has cervical radiculopathy of the right upper extremity that is due to his time in service, to include as due to his service-connected right carpal tunnel syndrome. The Veteran’s service treatment records are negative for complaints of, diagnosis of or treatment for neck pain and right upper extremity pain in service. The Veteran’s post-service VA medical records reflect treatment for neck pain and cervical radiculopathy beginning in January 2015. A VA opinion was obtained in June 2015. After a review of the medical evidence of record, the VA examiner determined that it was less likely than not that the Veteran’s right forearm symptoms are proximately due to or the result of his service-connected carpal tunnel syndrome; nor are his right forearm symptoms aggravated by his service-connected carpal tunnel syndrome. The examiner referred to a May 2015 VA physical medicine rehab (PM&R) consult examination which revealed findings consistent with C6/7 radiculopathy, including slightly decreased elbow extension, decreased sensation to sharp along right forearm extensor surface and positive Spurling’s on the right. The examiner noted that imaging of the cervical spine showed significant degenerative changes with evidence of possible spinal stenosis; while the EMG did not show evidence of radiculopathy, it did show mild evidence of mild carpal tunnel syndrome. The examiner noted that the location of the forearm symptoms was not in the distribution of the median nerve which is responsible for carpal tunnel syndrome, making the contention of causation or aggravation not feasible anatomically. Although the Veteran has expressed his belief in a connection, based apparently on similarity of symptoms, he lacks the knowledge and training required to render a nexus opinion on a cause and effect relationship unobservable to a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Direct service connection for cervical radiculopathy, right upper extremity must be denied because the competent evidence of record shows that this disability was neither caused nor aggravated by service; nor does it show that the Veteran experienced symptoms of such a condition that continued from service until the present. Additionally, the Board finds that cervical radiculopathy of the right upper extremity is not related to the Veteran’s service-connected right carpal tunnel syndrome. Notably, the VA examiner opined that due to the location of the Veteran’s arm symptoms, it is not possible that the Veteran’s cervical radiculopathy can be related to his service-connected right carpal tunnel syndrome. Service connection for cervical radiculopathy of the right upper extremity, including service connection on a secondary basis, is not warranted. The Board finds that the preponderance of the probative evidence of record weighs against the claim of service connection. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). Service connection for major depressive disorder The Veteran contends that he has major depressive disorder that is related to his military service. The Veteran’s service treatment records are silent as to any complaints, treatments or diagnosis of major depressive disorder in service. The Veteran’s post-service VA treatment records do not contain any indication that he has been diagnosed with any psychiatric disorder, including major depression. To the extent that the Veteran contends that he currently suffers from depression, the Board finds that he is not competent to render such a diagnosis. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of any mental disorder requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board concludes that the Veteran does not have a current diagnosis of major depression and has not had one at any time since the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). After having carefully reviewed the record, the Board finds the evidence insufficient to establish a current disability. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 255 (1992). In the absence of proof of a present disability there can be no valid claim. Id. Accordingly, service connection for major depression is not warranted. The Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim for service connection for major depression, the doctrine is not applicable. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Effective Date Generally, the effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). A “claim” is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2017). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. C.F.R. § 3.1(r) (2017). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155 (b) (2016). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Entitlement to an effective date earlier than October 6, 2014 for the grant of entitlement to service connection for left and right lower extremity peripheral neuropathy involving the common peroneal nerve The Veteran asserts he is entitled to an earlier effective date for the award of service connection for left lower extremity and right lower extremity peripheral neuropathy involving the common peroneal nerve. The Veteran has not identified the date he deems appropriate for the grant of service connection for these disabilities. The Veteran was examined in connection with evaluation of his low back on October 6, 2014; this was a routine future examination and not connected to a specific claim by the Veteran. Based on the findings of this examination, service connection was granted for both left lower extremity peripheral neuropathy involving the common peroneal nerve and right lower extremity peripheral neuropathy involving the common peroneal nerve, both as neurological manifestations of the service-connected low back disability. The effective date assigned for service connection for each disability was October 6, 2014, the date of the examination and the first date on which the presence of these conditions was indicated. No communication was received from the Veteran, his representative or his congressman indicating an intent to claim service connection for these disabilities prior to October 6, 2014. In fact, no claim for service connection for these disabilities was ever filed by the Veteran, nor did he complain of them prior to their discovery. The RO granted new evaluations for these conditions based on the findings of the October 6, 2014 VA review examination. Therefore, a grant of service connection prior to October 6, 2014 for left lower extremity and for right lower extremity peripheral neuropathy impairment involving the common peroneal nerve is precluded. The appeals for earlier effective dates for grants of service connection for each of these issues must be denied. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service connection for a sleep disorder, to include as secondary to lumbar strain. The Veteran’s post-service VA treatment records indicate that he has consistently sought treatment for low back pain and has been prescribed prescription medication to be taken at bedtime for sleep and pain. It is unclear whether the Veteran’s difficulty sleeping due to pain qualifies as a currently diagnosed sleep disorder. A remand for an examination is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Evaluation of chronic lumbar strain with degenerative disc changes L4-5 The Veteran submitted a claim for a temporary total disability rating due to spine surgery in November 2016. The records from his spine surgery have not been associated with the claims file. Further, the Veteran was last afforded a VA examination in October 2014, prior to the Veteran’s November 2016 spine surgery. Remand is required for a VA examination to obtain updated findings. Evaluation of right and left lower extremity peripheral neuropathies involving the sciatic and common peroneal nerves The Veteran was afforded a VA back examination in October 2014. Service connection for peripheral neuropathies of the lower extremities was awarded, and individual disability evaluations were assigned, based on the findings of this examination. A peripheral nerves examination would be of greater help in identifying and evaluating the impairment from different nerves. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records from the medical center in Portland and all associated clinics, including White City, Seattle and Roseburg. Surgical records from a November 4, 2016, back surgery at the Portland VA medical center must be specifically requested. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently diagnosed sleep disorder. The claims file must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed sleep disorders. The question of whether difficulty with sleep due to pain is a current disability must be discussed. The examiner should opine as to whether any currently diagnosed sleep disorder is at least as likely as not caused or aggravated by his service-connected lumbar spine disability. A complete rationale for any opinions expressed should be set forth. 3. Schedule the Veteran for a VA spine examination. The examiner must describe in detail all current manifestations of the service-connected low back disability. All appropriate testing must be accomplished. 4. Schedule the Veteran for a VA peripheral nerves examination to ascertaining the current nature and severity of his service-connected peripheral neuropathies of the bilateral lower extremities, to include any functional effects due to each affected nerve. 5. Upon completion of the above, readjudicate the remanded issue. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel