Citation Nr: 20005755 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 11-33 845 DATE: January 23, 2020 ORDER Service connection for an upper back rib dislocation disorder is denied. Service connection for a bilateral hand disorder is denied. REMANDED Entitlement to service connection for a bilateral knee disorder, to include as secondary to lumbar spine degenerative joint disease with disc herniation, is remanded. Entitlement to service connection for a left elbow disorder is remanded. FINDINGS OF FACT 1. An upper back rib dislocation disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. 2. A bilateral hand disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and an organic disease of the nervous system did not manifest to a compensable degree within one year from discharge from active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an upper back rib dislocation disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a bilateral hand disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2004 to December 2004 and from December 2005 to November 2006, with additional service in the U.S. Marine Corps Reserve with several periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in December 2010 and July 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran and his friend, D.J., testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In May 2015 and May 2017, the Board remanded the case for additional development and it now returns for further appellate review. Service Connection A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other “than dishonorable.” 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National of any State. 38 C.F.R. § 3.6(d). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Service connection may also be granted for a disability due to a qualifying chronic disability of a Veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2021, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In the instant case, the record reflects that the Veteran had service in Southwest Asia during the Persian Gulf War and, therefore, such laws and regulations are applicable to his claim. However, as will be explained herein, all of the Veteran’s claimed symptoms have been attributed to a known clinical diagnosis, and none of these symptoms have been attributed to an undiagnosed illness or a medically unexplained chronic multi-symptom illness. Accordingly, the provisions of 38 C.F.R. § 3.317 do not apply. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous systems, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson v. Brown, 7 Vet. App. at 469-70, for the proposition that, “if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim”); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). 1. Entitlement to service connection for an upper back rib dislocation disorder, to include as secondary to lumbar spine degenerative joint disease with disc herniation. The Veteran contends that he has an upper back rib dislocation disorder due to his military service. Specifically, on his December 2011 VA Form 9, he stated that such disorder was the result of an incident that occurred in March 2006 during a pre-deployment martial arts program, and he has continued to “have problems with the rib popping out.” Additionally, during his May 2015 Board hearing, the Veteran indicated that he had a problem with his rib subluxing during the remainder of his service that he believed was caused by sleeping on cots. However, the Veteran’s service treatment records (STRs) do not reveal any complaints, treatment, or diagnoses referable to an upper back rib dislocation disorder. Additionally, in a July 2015 letter, Dr. B.H., a private physician, opined that the Veteran’s lumbar spine disorder could be biomechanically related to his rib subluxations and left knee instability. However, while Dr. B.H. did not provide a rationale for his opinion and, thus such is inadequate for awarding service connection, his opinion raised the issue of whether the Veteran’s rib disorder is caused or aggravated by his service-connected lumbar spine disability. In December 2015, the Veteran was afforded a VA examination. At such time, the examiner diagnosed somatic dysfunction, left 4th rib, and opined that it was less likely than not that such disorder was incurred in or caused by the claimed in-service injury, event, or illness. In this regard, he noted that such disorder was episodic and sporadic, and the Veteran was not having symptoms at the time of the examination. The examiner further opined that it was at least as likely as not that the current left 4th rib somatic dysfunction was due to the contorted positions in which the Veteran placed himself in the normal course of his work as an automobile mechanic. In support thereof, he explained that bending and twisting motions, and positions that are associated with such type of work, can cause an increased stress on the articulations of the thoracic spine and the associated ribs, resulting in rib subluxation. However, the Board previously found that the December 2015 opinion was inadequate to decide the Veteran’s claim. In this regard, the examiner did not provide a rationale for his opinion that the Veteran’s rib disorder was less likely than not incurred in or caused by his service. Rather, he noted that the Veteran was asymptomatic at the time of the examination and opined that such disorder was at least as likely as not due to the Veteran’s work as an automobile mechanic. Additionally, the examiner did not address the Veteran’s contentions that his rib disorder was caused either by the March 2006 incident during a Marine Corps marital arts program or as a result of sleeping on cots during service, as directed by the September 2015 remand. Moreover, while the December 2015 examiner addressed Dr. B.H.’s letter, he did not opine as to whether the Veteran’s rib disorder was caused or aggravated by his service-connected lumbar spine disability. Accordingly, an addendum opinion was obtained in August 2017. At such time, the examiner opined that the Veteran’s rib disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, he explained that the Veteran was diagnosed with somatic dysfunction of the left fourth rib in 2012, which was after his period of active duty. He also explained that the condition involved the musculoskeletal components of the left upper chest and the muscles that were attached to it, and dysfunctions of this type were commonly associated with bending and twisting of the upper thorax. The examiner further noted that the Veteran reported he had recurrent problems with this type of dysfunction when he was involved with his work as a mechanic, especially when he was working on a car and was underneath the dashboard. He explained that such bending and twisting with this type of activity was likely to lead to exacerbations of this condition. With respect to the Veteran’s specific contentions, the examiner recognized that a wide variety of injuries could occur as a result of martial art training and noted that sleeping on a cot was likely to be less comfortable than sleeping in one’s own bed. However, he explained that sleeping on a cot did not specifically involve bending and twisting to the degree that a somatic dysfunction of the upper ribs would occur. The examiner also noted that the amount of time between his separation from service and the date such disorder was diagnosed and treated by Dr. B.H. was more than five years and, during that time, the Veteran was involved with activities that would likely cause this type of upper thorax problem. Thus, he concluded that it was less likely than not that this upper thoracic condition was caused by or aggravated by the Veteran’s active duty service, and was at least as likely as not a result of his activities while working as a mechanic. The examiner also opined that the Veteran’s rib disorder was less likely as not caused by or aggravated by his service-connected lumbar spine disability. In support thereof, he reasoned that the degenerative conditions of the lumbar spine were associated with low back pain and, as Dr. B.H. reported, such pain radiated down the right leg. The examiner noted that the rib subluxation was associated with pain in the upper back on the left side only, and such symptoms of somatic dysfunction of the left fourth rib were episodic and were associated with specific movements. Thus, he concluded that these two conditions were functionally and anatomically separate and distinct. With regard to Dr. B.H’s opinion, the examiner explained that Dr. B.H. did not offer any explanation of how these two conditions could be related to another or evidence to support his opinion. The Board affords great probative weight to the August 2017 VA examiner’s opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this regard, the Board acknowledges that the Veteran believes that his current upper back rib dislocation disorder is related to his military service and/or secondary to his service-connected lumbar spine disability. However, while lay persons are competent to provide opinions on some medical issues, in this case, the cause of an upper back rib dislocation disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, such matter involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, the diagnosis of a rib disorder requires the administration and interpretation of musculoskeletal testing, and determining the etiology of such requires knowledge of the musculoskeletal system. Moreover, whether the symptoms the Veteran reportedly experienced during or after service are in any way related to his currently diagnosed upper back rib dislocation disorder is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Accordingly, the Veteran’s opinion as to the onset and etiology of such disorder is not competent evidence and, consequently, is afforded no probative weight. In sum, the Board finds the Veteran’s upper back rib dislocation disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not shown to be caused or aggravated by a service-connected disability. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for an upper back rib dislocation disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for a bilateral hand disorder. The Veteran contends that he has a bilateral hand disorder as a result of military service. Specifically, in his December 2011 VA Form 9, he reported that he has had problems with his hands since military service. Furthermore, at the May 2015 Board hearing, the Veteran testified that he was told he had nerve damage in his left hand by someone at a VA clinic. In this regard, the Veteran’s STRs reveal that his January 2010 Report of Medical History noted, “[p]ain in wrist varies, gripping.” He also reported that he had tingling in his right arm and occasional numbness. The Veteran was afforded a VA examination in December 2015 to identify all bilateral hand disorders and determine whether such are related to service. At such time, the examiner determined that there was insufficient clinical evidence to support a diagnosis of a bilateral hand condition. However, as the Veteran had bilateral hand weakness, numbness, and tingling that had not been attributed to a known clinical diagnosis and such examiner did not consider the provisions related to an undiagnosed illness or other qualifying chronic disability, the Board found that an addendum opinion was necessary to decide the claim. Nonetheless, in August 2017, an addendum opinion was obtained, and the examiner again determined that the Veteran did not have a diagnosis related to numbness, tingling, or weakness in his bilateral hands as he reported that these symptoms were no longer present. Consequently, in May 2018, the Veteran was afforded another VA examination. At such time, compressive median neuropathy at the wrist, bilateral (carpal tunnel syndrome) was diagnosed. However, the examiner found that such disorder was not the result of an undiagnosed illness or due to a medically unexplained chronic multi-system illness as it was condition with a clear and specific etiology. He further opined that such disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, the examiner noted that results of the electromyograph (EMG)/nerve conduction studies (NCS) showed that his condition was borderline, which likely explained the variability of the symptoms. He also explained that, although these types of compressive neuropathies could be caused by trauma, such as the fall that he reported experiencing during boot camp (which he alleged resulted in his left elbow disorder), these types were much more commonly associated with repetitive motion. In this regard, he noted that the Veteran reported that he worked as a mechanic and was using wrenches frequently. The Veteran also stated that when he was doing the repetitive motions of using a wrench, it was at that time he was most likely to have the symptoms in his hands. Thus, the examiner concluded that it was less likely than not that the Veteran’s bilateral hand condition was incurred in or aggravated by his military service, and was at least as likely as not related to the repetitive motion conditions that were related to his work. The Board affords great probative weight on the May 2018 VA examiner’s opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez, supra; Stefl, supra. Notably, there is no medical opinion to the contrary. The Board has also considered the Veteran’s statements that his bilateral hand disorder is directly related to his service; however, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. Jandreau, supra. Specifically, the etiology of such disorder is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the question of etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship as it requires the administration and interpretation of musculoskeletal and neurological testing, and determining the etiology of such requires knowledge of the musculoskeletal and nervous systems, respectively. Woehlaert, supra. Moreover, whether the symptoms the Veteran reportedly experienced during or after service are in any way related to his currently diagnosed bilateral hand disorder is a matter that also requires medical expertise to determine. Clyburn, supra. Accordingly, the Veteran’s opinion as to the onset and etiology of such disorder is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that compressive median neuropathy at the bilateral wrist manifested to a compensable degree within one year of the Veteran’s separation from service. In this regard, no medical professional has related his bilateral hand complaints to a diagnosis of compressive median neuropathy at the bilateral wrist in the first post-service year, and the Veteran has reported that his symptoms wax and wane rather than have remained continuously present. In fact, the May 2018 VA examiner found that the Veteran’s bilateral hand disorder was related to his post-service work as an automotive mechanic. Consequently, presumptive service connection for compressive median neuropathy at the bilateral wrist, to include on the basis of a continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. In sum, the Board finds the Veteran’s bilateral hand disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and an organic disease of the nervous system did not manifest to a compensable degree within one year from discharge from active duty. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a bilateral hand disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 3. Entitlement to service connection for a bilateral knee disorder, to include as secondary to lumbar spine degenerative joint disease with disc herniation. 4. Entitlement to service connection for a left elbow disorder. Pursuant to the May 2017 remand, addendum opinions addressing the etiology of the Veteran’s bilateral knee disorder, diagnosed as patellofemoral syndrome, and left elbow disorder, diagnosed as left medial epicondylitis and compressive ulnar neuropathy at the elbow, were obtained. However, for the reasons noted below, the Board finds that further addendum opinions are necessary to decide the claims. With respect to the Veteran’s bilateral knee disorder, the Board finds that the opinions offered in August 2017 and August 2019 are adequate to address the direct aspect of the Veteran’s claim. However, in addressing the secondary aspect of such claim, the August 2017 examiner opined that the Veteran’s bilateral knee disorder was not aggravated by his service-connected lumbar spine disability. In support of such opinion, he noted that the Veteran’s bilateral knee disorder began in 2015, approximately 10 years after his service-connected lumbar spine disability, after he had been kneeling at work. However, such opinion does not address whether the Veteran’s service-connected lumbar spine disability caused his bilateral knee disorder or address whether such subsequently aggravated it after its onset. Furthermore, it appears to be based on an inaccurate factual premise as the record reflects the Veteran’s complaints referable to his bilateral knees as early as April 2010, as reported in his original application, and his left knee in July 2014, as reported in connection with treatment. Thus, the Board finds that an addendum opinion is warranted to address such concerns. As pertinent to the Veteran’s left elbow disorder, in August 2017, the examiner opined that left medial epicondylitis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, he found that the diagnosis of such disorder was new in July 2011 and had subsequently resolved by November 2016. He further noted that, while the Veteran reported an injury to the left elbow in boot camp, there was no documentation of it. Nonetheless, he concluded that the Veteran’s left medial epicondylitis was unrelated to such injury. However, the examiner did not address the January 2010 Report of Medical History indicating that the Veteran reported pain in his elbows during strenuous activity. Additionally, in May 2018, the Veteran underwent a VA examination and the examiner noted a diagnosis of compressive ulnar neuropathy at the bilateral elbows; however, the examiner did not provide an opinion as to whether such disorder was related to the Veteran’s military service. Thus, the Board finds that a remand is necessary to obtain an addendum opinion that addresses such concerns. The matters are REMANDED for the following action: 1. Return the record to the VA examiner who provided the August 2017 and August 2019 bilateral knee opinions. The record and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the record and the Remand have been reviewed. If the August 2017/August 2019 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After a review of the entire record, the examiner should provide an opinion as to whether the Veteran’s bilateral knee disorder, diagnosed as bilateral knee patellofemoral pain syndrome, is at least as least as likely as not (i.e., a 50 percent probability or greater) caused by OR aggravated by the Veteran’s lumbar spine degenerative joint disease with disc herniation. Why or why not? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. The examiner should consider the Veteran’s complaints referable to his bilateral knees as early as April 2010, as reported in his original application, and his left knee in July 2014, as reported in connection with treatment. He or she is further advised that aggravation is not precluded even if the Veteran’s bilateral knee disorder had its onset after his lumbar spine disability. A rationale for any opinion offered should be provided. 2. Return the record to the VA examiner who conducted the May 2018 left elbow examination. The record and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the record and the Remand have been reviewed. If the May 2018 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After a review of the entire record, the examiner should provide an opinion as to whether the Veteran’s left elbow disorder, currently diagnosed as left medial epicondylitis and compressive ulnar neuropathy at the elbow, is at least as least as likely as not (i.e., a 50 percent probability or greater) caused or aggravated by the Veteran’s active duty service or any verified period of ACDUTRA. The examiner should specifically address the Veteran’s contention that his left elbow disorder was caused by a fall during Marine boot camp or combat training and a January 2010 Report of Medical History, indicating that the Veteran reported pain in his elbows during strenuous activity. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.