Citation Nr: 1806790	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  14-29 098	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to service connection for a thoracic spine disorder.

2.  Entitlement to service connection for right carpal tunnel syndrome.

3.  Entitlement to a rating in excess of 30 percent for degenerative disc disease       of the cervical spine.

4.  Entitlement to a rating in excess of 20 percent for diabetes mellitus. 

5.  Entitlement to an initial rating in excess of 20 percent for left carpal tunnel syndrome. 

6.  Entitlement to an initial rating in excess of 10 percent for glaucoma; right with cataract. 

7.  Entitlement to an initial compensable rating for a cataract, left eye. 

8.  Entitlement to an initial compensable rating for peripheral neuropathy of the right upper extremity. 


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel


INTRODUCTION

The Veteran had honorable active duty service from March 1962 to October 1982.

These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  The claims were remanded by the Board in May 2017 in order to schedule the Veteran for a requested hearing.  The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law  Judge in November 2017.  A transcript is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The Board notes the May 1, 2013 rating decision codesheet left off the Veteran's service-connected left wrist carpal tunnel syndrome, right eye glaucoma with cataract and left eye cataract disabilities.  Such matter is REFERRED to the Agency of Original Jurisdiction (AOJ) for appropriate corrective action.



The issue of service connection for right carpal tunnel syndrome and the increased rating claims are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

A current thoracic spine diagnosis is not shown by the evidence of record.


CONCLUSION OF LAW

The requirements for establishing service connection for a thoracic spine disorder have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has reviewed all the evidence in the record.  Although the Board has     an obligation to provide adequate reasons and bases supporting this decision,      there is no requirement that the evidence submitted by the appellant or obtained      on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.         See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake        v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is     an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt 
to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski,     1 Vet. App. 49, 53 (1990).

The Veteran seeks entitlement to service connection for a thoracic spine disorder.      He essentially contends that his service-connected degenerative disc disease of           the cervical spine has spread to the thoracic vertebrae, specifically T1, and that            his thoracic spine is now affected.  

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the    in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury.  38 C.F.R. § 3.310.  

The preponderance of the evidence is against the claim for service connection for     a thoracic spine disorder.  A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).  Post-service treatment records dated since the claim for service connection was filed do not document complaint of, or treatment for, any thoracic spine problems, and imaging reports that include findings specific to vertebrae of the thoracic spine do not reflect any abnormality.  In fact, an April 2011 magnetic resonance imaging (MRI) of the cervical spine showed no signs of abnormality at T1 and a May 2017 lumbar spine MRI showed normal findings at T12.  Without evidence of a current diagnosis related to the thoracic spine, service connection is not warranted and the claim must be denied. 



While the Veteran believes that he has a current thoracic spine disorder that is related to service or that has progressed from a service-connected disability, as a  lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the diagnosis and etiology of thoracic spine disorders is a matter not capable of lay observation and require medical expertise   to determine.  Accordingly, his opinion as to the diagnosis or etiology of a thoracic spine disorder is not competent medical evidence.  

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. 


ORDER

Service connection for a thoracic spine disorder is denied.  


REMAND

The claim for service connection for right carpal tunnel syndrome was denied on the basis that the evidence of record does not show a diagnosis of the disability; however, a January 2010 electromyography and nerve conduction study contains  an impression of severe bilateral carpal tunnel syndrome. In addition, an impression of symptoms of right carpal tunnel syndrome with a recommendation to wear wrist brace, was made in June 2014.  An opinion is needed to address the etiology of this disorder.  



The Veteran's service-connected disabilities listed on the title page were last examined in September 2011.  Contemporaneous examinations are needed to address their current severity.  An eye examination is especially important given that visual field testing was to be completed after the September 2011 examination, but there is no indication that this action was completed. 

Relevant ongoing medical records should also be requested.  38 U.S.C. § 5103A(c) (2012).

The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and 
that the consequences of failing to report for a VA examination without good    cause may include denial of the claim.  38 C.F.R. §§ 3.158 and 3.655 (2017). 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his carpal tunnel syndrome, neck disability, diabetes, eyes, and right upper extremity neuropathy. After securing   any necessary releases, the AOJ should request any relevant records identified.  If any requested records      are unavailable, the Veteran should be notified of such. 

2.  Schedule the Veteran for a VA neck examination         to determine the current severity of his cervical spine disability.  The claims file should be reviewed by the examiner. All appropriate tests and studies should be conducted and the results reported in detail.


3.  Schedule the Veteran for a VA diabetes examination to determine the current severity of his disability. The claims file should reviewed by the examiner. All appropriate tests and studies should be conducted and the results reported in detail.  

4.  Schedule the Veteran for a VA neurological examination to determine the current severity of his    left carpal tunnel syndrome and peripheral neuropathy   of the right upper extremity disabilities, and to obtain   an opinion on the claim for service connection for right carpal tunnel syndrome.  The claims file should be reviewed by the examiner.  All appropriate tests and studies should be conducted and the results reported      in detail.

Following review of the claims file and examination      of the Veteran, the examiner should respond to the following:

a. Please indicate whether the Veteran meets the diagnostic criteria for carpal tunnel syndrome in    the right upper extremity.  The examiner should explain why or why not to include addressing the January 2010 electromyography (EMG) and nerve conduction study that contains an impression of severe bilateral carpal tunnel syndrome.  If the examiner concludes the Veteran does not suffer  from carpal tunnel syndrome in the right upper extremity, the examiner should indicate whether     the January 2010 test findings were inaccurate or whether the condition resolved since that time. 


b. The examiner should provide an opinion as to whether carpal tunnel syndrome in the right upper extremity, to include the findings on the January 2010 testing, are caused or aggravated by the service connected cervical spine degenerative disc disease, diabetes, and/or peripheral neuropathy      of right shoulder and arm. The examiner should provide a rationale for the conclusion reached.         If the examiner concludes the condition was not caused by the service connected disabilities, but is aggravated by them, the examiner should attempt to quantify the degree of worsening in the right carpal tunnel syndrome that is due to the service-connected disabilities.  

5.  Schedule the Veteran for a VA eye examination        to determine the current severity of his bilateral eye disabilities (bilateral cataracts and right eye glaucoma).  The claims file should be reviewed by the examiner. All appropriate tests and studies should be conducted and the results reported in detail.  The examiner should indicate whether visual field testing is needed and if    so, have such testing conducted.  

6.  After undertaking the development above and         any additional development deemed necessary, the Veteran's claims should be readjudicated. If the benefits sought on appeal remain denied, the appellant should   be furnished a supplemental statement of the case and  be given an appropriate period to respond thereto before the case is returned to the Board, if in order. 

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
K. A. BANFIELD 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs