Citation Nr: 18146983 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-16 962 DATE: November 5, 2018 ORDER Entitlement to service connection for depression is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for left upper extremity carpal tunnel syndrome is granted. Entitlement to service connection for right upper extremity carpal tunnel syndrome is granted. REMANDED Entitlement to a rating in excess of 20 percent for left knee disability is remanded. Entitlement to a compensable rating for left scar disability is remanded. Entitlement to service connection for bilateral hearing loss with loss of balance is remanded. Entitlement to service connection for a back disorder, to include as secondary to left knee disability, is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to left knee disability, is remanded. Entitlement to service connection for hypertension is remanded Entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s depression is etiologically related to his active service. 2. The Veteran’s sleep apnea is etiologically related to his active service. 3. The Veteran’s left upper extremity carpal tunnel syndrome is etiologically related to his active service. 4. The Veteran’s right upper extremity carpal tunnel syndrome is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for depression have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for left upper extremity carpal tunnel syndrome have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for right upper extremity carpal tunnel syndrome have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1976 to January 1979. Since the March 2016 statement of the case (SOC), the Veteran’s representative submitted additional evidence concerning the issues on appeal. The Veteran’s representative also submitted a waiver of RO consideration of said evidence. See Brief, August 11, 2016. That evidence may now be considered by the Board. The Board notes that in the brief, the Veteran’s representative enclosed a medical opinion which indicated that the Veteran was not employable due to his service-connected disabilities. See DBQ, June 2016. As the Veteran is challenging the disability ratings assigned for some of these disabilities, the determination as to whether he is entitled to a TDIU is part and parcel of the determination of the increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). While the Board has jurisdiction over this matter, the claim for TDIU is remanded to the agency of original jurisdiction (AOJ) for further development, as discussed more fully below. Service Connection 1. Depression To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). A disability may also be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.310 (a), (b) (2017). The question for the Board is whether the Veteran’s current diagnosis of depression either began during active service, is etiologically related to an in-service disease or injury, or is the result of a service-connected disability. The Board finds that competent, credible, and probative evidence establishes that the depression is the result of a service-connected disability. The Veteran has a current diagnosis of depression. Namely, the June 2016 Disability Benefits Questionnaire (DBQ) shows that he has a diagnosis of depressive disorder due to another medical condition with depressed features. See DBQ, June 2016. Thus, the first element of service connection is met. As to the second element, the in-service occurrence, the Veteran’s service treatment records (STRs) do not show complaints of, or treatment for, depression. However, the Veteran is service-connected for a left knee and a left hip disability, and it is on that basis that he claims he should be connected. Turning to whether there is a medical nexus, a medical professional has stated that the Veteran’s diagnosed depression is the result of, and has been aggravated by, his left knee and left hip disabilities. See DBQ, June 2016. As such, the claim of entitlement to service connection for depression is granted. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Sleep Apnea To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). A disability may also be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.310 (a), (b) (2017). The question for the Board is whether the Veteran’s current diagnosis of sleep apnea either began during active service, is etiologically related to an in-service disease or injury, or is the result of a service-connected disability. The Board finds that competent, credible, and probative evidence establishes that the sleep apnea is the result of a service-connected disability. The Veteran has a current diagnosis of sleep apnea. Namely, the August 2016 DBQ shows that he has a diagnosis of sleep apnea. See DBQ, August 2016. Thus, the first element of service connection is met. As to the second element, the in-service occurrence, the Veteran’s STRs do not show complaints of, or treatment for, sleep apnea. However, the Veteran is service-connected for a left knee and a left hip disability, and now for depression, and it is on that basis that he claims he should be connected. Turning to whether there is a medical nexus, a medical professional has stated that the Veteran’s diagnosed sleep apnea is the result of, and has been aggravated by, his left knee and left hip disabilities (and the narcotics which the Veteran takes for them), as well as his depression. See DBQ, August 2016. As such, the claim of entitlement to service connection for sleep apnea is granted. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Left and Right Upper Extremity Carpal Tunnel Syndrome To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). A disability may also be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.310 (a), (b) (2017). The question for the Board is whether the Veteran’s current diagnosis of bilateral carpal tunnel either began during active service, is etiologically related to an in-service disease or injury, or is the result of a service-connected disability. The Board finds that competent, credible, and probative evidence establishes that the bilateral carpal tunnel is the result of a service-connected disability. The Veteran has a current diagnosis of bilateral carpal tunnel. Namely, the August 2016 private opinion shows that he has a diagnosis of bilateral carpal tunnel. See private opinion, August 2016. Thus, the first element of service connection is met. As to the second element, the in-service occurrence, the Veteran’s STRs do not show complaints of, or treatment for, bilateral carpal tunnel. However, the Veteran is service-connected for a left knee and a left hip disability, and it is on that basis that he claims he should be connected. Turning to whether there is a medical nexus, a medical professional has stated that the Veteran’s diagnosed bilateral carpal tunnel is the result of, and has been aggravated by, his left knee and left hip disabilities, as they were caused by the Veteran’s need to use his cane. See private opinion, August 2016. As such, the claim of entitlement to service connection for bilateral carpal tunnel is granted. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has not raised any other issues, and no other issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The issue of TDIU is remanded below. REASONS FOR REMAND 1. Left Knee Disability The Veteran asserts that his left knee disability is worse than currently evaluated. The Veteran underwent the most recent VA examination for his left knee disability in June 2014. See VA examination, June 2014. The United States Court of Appeals for Veterans Claims (Court) has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 (2016) states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The examiner should ensure that the examination report contains adequate information pursuant to Correia. As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. A VA examiner should, on remand, address any flare-ups claimed by the Veteran, per Sharp. The June 2014 VA examination did not comply with Correia and Sharp. As such, the June 2014 VA examination report is not adequate for rating purposes. The Board finds that an addendum is needed to help determine the current severity of the Veteran’s left knee disability. 2. Left Knee Scar The Veteran asserts that his left knee scar is worse than currently evaluated. The Veteran underwent the most recent VA examination for his left knee disability in June 2014. See VA examination, June 2014. The examination did not report the number or the condition of scar(s) on or around the Veteran’s left knee. As such, the June 2014 VA examination report is not adequate for rating purposes, the Board finds that an addendum is needed to help determine the current severity of the Veteran’s left knee scar. 3. Bilateral Hearing Loss The examiner who authored the June 2016 DBQ related that the Veteran received Social Security Disability benefits since 2000 “for his difficulties.” Current records available for review did not contain Social Security Administration (SSA) records, which may prove helpful in the claim’s adjudication, as the Veteran apparently receives SSA disability benefits. The SSA documentation is not of record. It is unclear for which condition (or conditions) the Veteran receives SSA benefits. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493 (1992). 4. Back Disorder The examiner who authored the June 2016 DBQ related that the Veteran received Social Security Disability benefits since 2000 “for his difficulties.” Current records available for review did not contain Social Security Administration (SSA) records, which may prove helpful in the claim’s adjudication, as the Veteran apparently receives SSA disability benefits. The SSA documentation is not of record. It is unclear for which condition (or conditions) the Veteran receives SSA benefits. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493 (1992). 5. Right Knee Disorder The examiner who authored the June 2016 DBQ related that the Veteran received Social Security Disability benefits since 2000 “for his difficulties.” Current records available for review did not contain Social Security Administration (SSA) records, which may prove helpful in the claim’s adjudication, as the Veteran apparently receives SSA disability benefits. The SSA documentation is not of record. It is unclear for which condition (or conditions) the Veteran receives SSA benefits. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493 (1992). 6. Hypertension The examiner who authored the June 2016 DBQ related that the Veteran received Social Security Disability benefits since 2000 “for his difficulties.” Current records available for review did not contain Social Security Administration (SSA) records, which may prove helpful in the claim’s adjudication, as the Veteran apparently receives SSA disability benefits. The SSA documentation is not of record. It is unclear for which condition (or conditions) the Veteran receives SSA benefits. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493 (1992). 7. TDIU When a Veteran seeks an increased rating for a service-connected disability, VA must also consider entitlement to TDIU, if it is raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran’s representative has submitted a medical opinion which indicated that the Veteran was not capable of gainful employment due to his service-connected disabilities. See DBQ, June 2016. As the Veteran is challenging the disability ratings assigned for some of these disabilities, the determination as to whether he is entitled to a TDIU is part and parcel of the determination of the increased rating claims. The AOJ has not considered entitlement to TDIU. Thus, the claim must be remanded so that the RO can consider whether a TDIU is warranted. Finally, current treatment records should be identified and obtained. The matters are REMANDED for the following action: 1. Obtain all VA treatment records for the Veteran dated from March 2016 to the present and associate them with the claims file. 2. Obtain the SSA records associated with the Veteran’s disability award, to include clinical and medical records supporting that award, and associate them with the claims file. Document all efforts to obtain them, and document all responses received from all attempts to obtain the records. 3. The Veteran and/or his representative are asked to supply, in writing, an explanation and clarification as to the Veteran’s dates of employment and unemployment. 4. Return the claims file to the examiner who conducted the June 2014 left knee VA examination for an examination, if available. If not available, than any examiner with appropriate expertise can conduct the exam. A complete and detailed rationale should be given for all opinions and conclusions expressed. The examiner should once again review the claims file and examination and provide an addendum opinion clarifying the following: (a.) Please identify all left knee orthopedic disabilities found to be present. Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s left knee, i.e., the extent of the Veteran’s pain-free motion. (b.) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done. (c.) Pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 31 (2017) the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” please state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. Please ALSO name the precipitating and alleviating factors. Please ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment. (d.) Opine as to the current nature of the Veteran’s left knee residual surgical scar(s) in accordance with VA rating criteria. (e.) The examiner is asked to address the functional impact that all of the Veteran’s service-connected disabilities have on his ability to secure or follow a substantially gainful occupation. When addressing the functional impact the examiner should consider the Veteran’s educational and occupational history but must not consider the Veteran’s age or any non-service-connected disabilities. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel