Citation Nr: 18160872 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 13-25 194 DATE: December 28, 2018 ORDER Entitlement to service connection for a right ankle arthritis is denied. Entitlement to service connection for a right ankle gout is denied. Entitlement to service connection for a right wrist arthritis is denied. Entitlement to service connection for a right wrist gout is denied. Entitlement to total disability evaluation based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s right ankle arthritis is neither proximately due to nor aggravated beyond its natural progression by her service-connected right ankle strain or any other service-connected disabilities, and is not otherwise related to an in-service injury, event, or disease. 2. The Veteran’s right ankle gout is neither proximately due to nor aggravated beyond its natural progression by her service-connected right ankle strain or any other service-connected disabilities, and is not otherwise related to an in-service injury, event, or disease. 3. The Veteran’s right wrist arthritis is neither proximately due to nor aggravated beyond its natural progression by her service-connected carpal tunnel syndrome (CTS) or any other service-connected disabilities, and is not otherwise related to an in-service injury, event, or disease. 4. The Veteran’s right wrist gout is neither proximately due to nor aggravated beyond its natural progression by her service-connected CTS or any other service-connected disabilities, and is not otherwise related to an in-service injury, event, or disease. 5. Resolving reasonable doubt in favor of the Veteran, her service-connected disabilities render her unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right ankle arthritis have not been met. 38 U.S.C. §§ 1101(3), 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for a right ankle gout have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (2017). 3. The criteria for entitlement to service connection for a right wrist arthritis have not been met. 38 U.S.C. §§ 1101(3), 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for entitlement to service connection for a right wrist gout have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (2017). 5. The criteria for entitlement to TDIU are met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1987 to August 1995. This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2014, the Veteran, and her representative at that time testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In June 2015, the Board remanded the matter for further development. Now the matter is back before the Board. Legal Criteria A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110 (2012). Generally, to establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for chronic diseases listed in 38 U.S.C. sections 1101(3) and 38 C.F.R. § 3.309(a), such as arthritis, may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113 (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017). For the showing of chronic disease in service, a combination of sufficient manifestations to identify the disease entity and sufficient observation to establish chronicity at the time is required. 38 C.F.R. § 3.303(b) (2017). An alternative to showing chronicity in service is a showing of continuity of symptoms after discharge. The U. S. Court of Appeals for the Federal Circuit, however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2017). A TDIU may be assigned to a veteran who meets certain disability percentage standards and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a) (2017). To qualify for a schedular TDIU, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341 (2017). The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Substantially gainful employment is an employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Also, marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16(a) (2017). Factual background and Analysis Service connections for right ankle arthritis and gout The Veteran is seeking entitlement to service connections for right ankle arthritis and gout. The Board notes that the Veteran was afforded a VA examination in May 1996. During the May 1996 VA examination, the Veteran’s right ankle was examined in three projections. The May 1996 VA examiner opined that there was no evidence of fracture or inflammatory arthritis. Later, the Veteran was afforded a VA examination in December 2011. During the December 2011 VA examination, the Veteran was diagnosed with a right ankle strain. The Veteran was afforded another VA examination in February 2012. During the February 2012 VA examination, her right ankle strain diagnosis was confirmed. The February 2012 VA examiner opined that the Veteran’s x-ray dated January 26, 2012, did not show a right ankle arthritis. In June 2014, a private doctor A.B. provided that the Veteran has developed degenerative arthritis and gout in her right ankle. June 2014 Dr. A.B. Letter, at 3. In July 2017, the Veteran was afforded another VA examination. The July 2017 VA examiner diagnosed her with right ankle lateral collateral ligament sprain. The July 2017 VA examiner noted that the Veteran denied a right ankle condition other than the residuals of her service-connected right ankle strain. Most recently, the Veteran was afforded a VA examination in July 2018, in which she was diagnosed with a right ankle osteoarthritis. In light of the June 2014 Dr. A.B. letter and the July 2018 VA examination, the Board finds that the Veteran has a present right ankle arthritis. In regard to the Veteran’s right ankle gout, the evidence shows that the Veteran was diagnosed with gout after a hospital admission in May 2011. Also, the Veteran was prescribed medications for gout treatment. See October 2011 Primary Care Annual Evaluation Note. Thus, the Board finds that the Veteran has a present right ankle gout. The Veteran’s contention of her right ankle injury in service is found in the evidence of record. March 2014 Hearing Transcript, at 19 (the Veteran sprained her right ankle once during personal training in her first year or so in the service; a “bad” sprain happened in 1994; August 1994 Service Treatment Record (received diagnosis of first degree right ankle sprain). The Board notes that the Veteran was service-connected for a right ankle sprain effective from August 15, 1995. Thus, the question that remains before the Board is whether her current right ankle arthritis and gout were caused by her in-service right ankle injury, or due to or aggravated by her service-connected right ankle sprain. In June 2014, a private doctor A.B. opined that the Veteran’s right ankle degenerative arthritis and gout are causally and directly related to her service-related injuries. June 2014 Dr. A.B. Letter, at 3. The Board finds Dr. A.B. opinion competent and credible, however, assigns less probative weight since no rationale was provided to support the opinion. Significantly, in July 2018, a VA examiner opined that the Veteran’s right ankle arthritis, gout, or other right ankle conditions are not proximately caused by, incurred in, or otherwise aggravated by the Veteran’s service-connected disabilities, to include right ankle strain, CTS, migraines, lumbosacral strain, hypertension, and rhinosinusitis. The July 2018 VA examiner noted that the Veteran’s right ankle x-rays dated January 26, 2012 and October 18, 2013 were silent for a right ankle arthritis. July 2018 Ankle Conditions DBQ, at 7. The VA examiner noted that the Veteran’s x-ray performed in 2018 shows mild degenerative joint disease (DJD), but her DJD was not diagnosed in the service or within the one year after her military service from August 14, 1995 to August 14, 1996. Id., at 8. The VA examiner noted that the Veteran was not diagnosed with gout during her active duty service, and she did not receive the diagnosis until 2011. The VA examiner provided that there is no general medical consensus or evidence to support the Veteran’s contention that her claimed right ankle arthritis, gout, or any other conditions are due to, or otherwise aggravated by her service-connected right ankle sprain. Id., at 8-9. The July 2018 VA examiner also noted that Dr. A.B.’s positive opinion is lacking any supporting rationale. Id., at 7-8. The Board finds the July 2018 VA examination to be competent and credible evidence and assigns a higher probative weight, since the VA examiner provided his opinion after a review of the Veteran’s entire claims file in conjunction with an in-person examination of the Veteran, and stated his rationale to support his opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on above, the Veteran’s entitlement to service connections for her right ankle arthritis and gout is not warranted. 38 U.S.C. §§ 1101(3), 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). Service connections for right wrist arthritis and gout The Veteran is also seeking entitlement to service connection for her right wrist arthritis and gout. Initially, the Board notes that the Veteran was diagnosed with CTS during service after experiencing right wrist pain, and had a decompressive surgery on her right hand in June 1995. June 1995 Orthopedic Operative Note. However, the evidence does not show that the Veteran’s right wrist arthritis was manifested within one year from her separation from service. In October 1996, x-rays on the Veteran’s bilateral wrists were normal. March 1999 Rheumatology Follow-up Visit. In January 2010 VA examination, a VA examiner confirmed the CTS diagnosis, but did not mention arthritis. January 2010 VA Examination. In February 2012, the Veteran was afforded another VA examination on her right wrist. The February 2012 VA examiner diagnosed the Veteran with right wrist strain, and opined that the right wrist x-ray performed in January 2012 showed no arthritis or gout. February 2012 VA Examination, at 3. Also, the VA examiner reported that the January 2012 right wrist x-ray showed no evidence of soft tissue, bony, or joint abnormalities. However, the private doctor A.B. provided that the Veteran has degenerative arthritis and gout in her right wrist. June 2014 Dr. A.B. Letter, at 3. Also, in August 2017, a VA doctor F.E. informed the Veteran that her right wrist showed some arthritis. August 2017 Dr. F.E. Letter. In regard to the Veteran’s right wrist gout, the evidence shows that the Veteran had her gout diagnosis in May 2011 when she was admitted to a VA hospital. Therefore, the Board finds that the Veteran has present disabilities of right wrist arthritis and gout. As to the Veteran’s in-service injuries related to her right wrist, the evidence shows that the Veteran had multiple complaints and diagnosis related to her right wrist during her active duty service. 1992 Service Treatment Record (spontaneous resolution of wrist pain noted); July, September and December 1994 Service Treatment Records (bilateral wrist pain, but more pain on the right side noted); August 1995 Service Treatment Record (the Veteran experienced right wrist pain after doing push-ups and diagnosed with CTS in the right wrist). Therefore, the Board finds that the Veteran had an in-service injury of her right wrist. Thus, the question that remains before the Board is whether her current right wrist arthritis and gout were caused by her in-service right wrist injury, or due to or aggravated by her service-connected right CTS. In June 2014, a private doctor A.B. provided a positive nexus opinion regarding the Veteran’s right wrist degenerative arthritis and gout, and her service-related injuries. June 2014 Dr. A.B. Letter, at 3. The Board finds Dr. A.B. opinion competent and credible, however, assigns less probative weight since he did not provide any rationale to support his opinion. Significantly, in July and August 2018, a VA medical examiner opined that the claimed right wrist arthritis and gout are not at least as likely as proximately caused by, incurred in, or otherwise aggravated by the Veteran’s service-connected CTS, migraine headaches, lumbosacral strain, hypertension, or rhinosinusitis. The VA examiner provided that the Veteran’s minimal degenerative arthritis of her right wrist joint was caused by multiple episodes of joint inflammation secondary to acute gout attacks. August 2018 VA Addendum Opinion, at 1. The VA examiner noted that the Veteran was diagnosed with gout in 2011, and received treatments with Allopurinol and Colchicine. Id., at 2. The VA examiner noted that the Veteran’s CTS diagnosis predates her gout diagnosis by at least 12 years, and the CTS is caused by a median nerve compression in the carpal tunnel. Id., at 1-2. The VA examiner noted that gout is caused by engulfing of uric acid crystals by the leukocytes in the peripheral blood, and the attack of acute gout was associated with pain, swelling, and tenderness of the Veteran’s right wrist joint. Id., at 1. The VA examiner provided that there is no general medical consensus or evidence based rationale to support that the Veteran’s service-connected CTS caused or otherwise aggravated the Veteran’s right wrist degenerative joint disease or gout. Id., at 2. The VA examiner addressed each of the Veteran’s other service-connected disabilities, to provide his rationale for the negative nexus opinion. August 2018 VA Addendum Opinion. Moreover, the VA examiner opined that the Veteran’s current wrist disabilities are not proximately caused by the right wrist sprain during her active service, because bilateral wrist pain and strain conditions are self-limited conditions which gets resolved and do not progress to cause arthritis. July 2018 VA Examination. The Board finds the July and August 2018 VA opinions competent and credible, and assigns high probative weight as it was provided after an in-person examination of the Veteran in conjunction with a review of her entire claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on above, the Veteran’s entitlement to service connections for her right wrist arthritis and gout is not warranted. 38 U.S.C. §§ 1101(3), 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). Entitlement to TDIU Further, the Veteran is seeking entitlement to TDIU. The evidence shows that the Veteran is currently service-connected for a right CTS, rated as 50 percent disabling; migraine headaches, rated as 50 percent disabling; a left CTS, rated as 40% disabling; a hypertension, rated as 10 percent disabling; an allergic rhinosinusitis, rated as 10 percent disabling; a lumbosacral strain, rated as 10 percent disabling; hemorrhoids, rated as 0 percent disabling; and a right ankle sprain, rated as 0 percent disabling. Her combined schedular rating is 90 percent from December 1, 2011. The Board notes that the Veteran meets the schedular criteria for TDIU during the entire timeframe on appeal, because she has one disability ratable at 40 percent, i.e., a right CTS, and her combined disability rating is at least 70 percent. The Board notes that the Veteran has submitted VA Form 21-8940, Veteran’s application for Increased Compensation Based on Unemployability in May 2010 and May 2011. The Veteran reports that she has previously worked as a licensed practical nurse (LPN), a transporter, and a child care provider. May 2010 VA Form 21-8940; see also March 2014 Hearing Transcript, at 13. She testified that she was no longer able to work since 2009, because she could not drive and lift more than five pounds, and had to take too many time off due to her service-connected disabilities, to include pains in hands and lower back, and migraine headaches. March 2014 Hearing Transcript, at 13, 30; see also May 2011 VA Form 21-8940. The Board finds the Veteran competent and credible to provide her employment history as the evidence shows that her reports of her employment status have been consistent throughout the appeal period. January, June 2010 VA Examinations (the Veteran is unemployed at the time); November and December 2011 VA Examinations (the Veteran is currently unemployed, but worked as a LPN and a child care provider previously); February 2012 Statement in Support of Claim (the Veteran is still unable to maintain a secure employment since 2009). Initially, the Board notes that the Veteran stopped being a LPN because she moved to a state where she is not certified to practice nursing. March 2014 Hearing Transcript, at 13, 29; July 2010 VA Examination on Joints and Spine; November 2005 Counseling Record. The Board also notes that, in September 1996, a VA psychologist opined that the Veteran is urged to find a new job other than a LPN position, since it may aggravate and worsen her service-connected disabilities. September 1996 Counseling Record, at 3. The Veteran testified that she got a childcare job after moving. March 2014 Hearing Transcript, at 13, 29. The Veteran testified that her childcare position involved transporting the children from their school to the childcare facility, and helping with the aftercare program. Id., at 13, 30; see also May 2010 VA Form 21-8940. The Veteran was no longer able to maintain the childcare position, because she was not able to drive, the pain in hands, back, ankle, and migraine headaches interfered with her job performance, and caused her to miss work for too many days. March 2014 Hearing Transcript, at 30-31; see also July 2010 VA Examination on joints and spine; July 2010 VA Examination on nose, sinus, larynx and pharynx; March 2014 Hearing Transcript, at 9. In regard to the Veteran’s disabilities affecting her the most recent work performance, one of her former co-workers D.P. submitted a statement in October 2011. In the October 2011 statement, D.P. provided that the Veteran had become physically unable to transport and care for the children in the aftercare program. D.P. stated that the Veteran was not able to stand or walk during flare-ups, and required D.P.’s help with washing her hair at least once a month due to her right CTS and back pain. October 2011 D.P. Statement. The Veteran reported that her service-connected disabilities are causing difficulties in prolonged sitting, standing, or walking, and bending and lifting more than ten pounds. January 2010 VA Examination. She also reported that her service-connected right CTS, right ankle strain, and lower back strain is causing difficulties in working. November 2011 VA Examination. As discussed below, the Board finds the Veteran’s statements regarding her functional limitations competent and credible, and assigns a high probative weight as the evidence on record supports her contentions. In September 1996, the VA counseling psychologist reported that the Veteran has a serious employment handicap since she is experiencing functional limitations regarding lifting, carrying, pushing, pulling, climbing, balancing, stooping, excessive standing, and excessive walking, due to her service-connected disabilities. September 1996 Counseling Record. The VA psychologist also noted that the primary vocational rehabilitation that the Veteran needs essentially is medical. Id., at 3. Later in November 2005, another VA counseling psychologist also opined that the Veteran’s service-connected disabilities materially contributes to a significant vocational impairment. November 2005 Counseling Record, at 3. In September 2005, the Veteran reported that none of her disabilities are improving. September 2005 Rehabilitation Needs Inventory. The Board finds the Veteran’s statement competent and credible as the evidence shows that the Veteran’s service-connected disabilities have been getting worse. In June 2014, the private doctor A.B. provided that the records show that the Veteran’s symptoms worsened, and she was seen by several doctors. June 2014 Dr. A.B. Letter, at 2. Dr. A.B. noted that the Veteran obtained some relief for her right CTS symptoms after the surgery in 1995, but the symptoms have since returned and become exponentially worse. Id. The Veteran testified that her bilateral CTS causes pain in the area between the thumb and the wrist, and sometimes a shooting pain radiates up to her elbow when she is grabbing something. March 2014 Hearing Transcript, at 5-6. She also testified that her hand grip has decreased in its strength, where she can hold her cell phone for only 10 to 15 minutes before it falls out of her hand. Id., at 8. She testified that she can no longer write a whole page, carry groceries, or drive long distance, and the pain gets worse when she is actively using her hands. Id., at 8-9. Notably, in 2014, the Veteran was admitted to a VA hospital for severe headache, hypertension, and two episodes of passing out spells. July 2018 Neurology E&M Note; December 2014 Admission Report. The Veteran’s service-connected migraine headaches are reported to have a throbbing character associated with spots and stars in front of her, nausea, and occasional vomiting. Id. The Veteran gets the headaches at least once a week and it can last up to three days, and it requires her to be in a dark room. Id.; see also March 2014 Hearing Transcript, at 3. The Veteran testified that her migraine headaches have been getting worse. Id. Further, the evidence shows that the medications that the Veteran is taking due to her service-connected disabilities are affecting her daily activities. The Veteran reported that she takes Tizanidine and Tramadol once or twice per week, and the medications make her sleepy and dizzy. July 2010 VA Examination on joints and spine. She also stated that taking Allopurinol and Benadryl is making her lightheaded, drowsy, sleepy, and requiring her to visit bathroom frequently. October 2011 Statement in Support of Claim; see also August 2013 VA Examination on nose, sinus, larynx, pharnx. Lay witnesses Q.M. and D.P. also discussed that the Veteran’s daily in-take of her medication is affecting her daily activities because her medications make her drowsy and sleepy. October 2011 Q.M. and A.M. Statements. The Board acknowledges that VA examiners provided negative opinions on the Veteran’s unemployability. November 2011 VA Examination (the Veteran’s hypertension and hemorrhoids are not preventing her from sedentary or active physical employment; her rhinosinusitis should not impact her employment); December 2011 VA Examination (the Veteran is able to secure physical and sedentary employment despite her right ankle strain; she may be able to hold down work which does not require repetitive wrist actions). Although the Board finds the VA opinions competent and credible, the Board concludes that they are outweighed by the other competent and credible evidence discussed above, since it provides a more complete picture of how all of the Veteran’s service-connected disabilities are preventing her from obtaining and maintaining gainful employment. Based on above and resolving all reasonable doubt in factor of the Veteran, the Board finds that the Veteran’s entitlement for TDIU is warranted. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.15, 4.16 (2017). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Kim, Associate Counsel