Citation Nr: 20022360 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 16-14 678 DATE: March 31, 2020 ORDER Entitlement to service connection for bilateral hand/wrist disability, to include carpal tunnel syndrome and arthritis, including as secondary to service-connected left ring finger fracture, is denied. Entitlement to service connection for bilateral eye disability, to include residuals of chemical burns to the eyes, is denied. REMANDED Entitlement to a rating in excess of 10 percent for left shoulder disability is remanded. Entitlement to a rating in excess of 10 percent for right ankle disability is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s current bilateral carpal tunnel syndrome and hand arthritis were not shown in service or for many years thereafter, are not shown to be directly related to service, and are not shown to be caused or aggravated by the Veteran’s status post left ring finger fracture. 2. The Veteran is not shown to have a current eye disability for which VA compensation may be awarded and chemical eye burns were not shown in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hand/wrist disability, to include carpal tunnel syndrome and arthritis, including as secondary to service-connected left ring finger fracture, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for bilateral eye disability, to include residuals of chemical burns to the eyes, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to July 1996. The matters are on appeal before the Board of Veterans Appeals (Board) from May 2015, March 2016 and August 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Additional relevant evidence has been received since readjudication of all claims on appeal by statements of the case in February 2016, August 2017 and December 2017. Because the Veteran’s Form 9s were all received after February 2013, however, waiver of initial agency of original jurisdiction (AOJ) consideration is presumed. Additionally, the Veteran’s attorney has submitted waivers of AOJ initial consideration of this evidence. Service Connection The Veteran asserts that he is entitled to service connection for bilateral hand/wrist disability, as secondary to his service-connected status post fracture of the left ring finger. He also asserts service connection for bilateral eye disability based on residual disability from chemical burns, which he appears to allege were sustained in service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain listed, chronic disabilities, including arthritis, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for bilateral hand/wrist disability, to include carpal tunnel syndrome and bilateral hand arthritis. The Veteran’s service treatment records do not show any findings of wrist pathology. The only pathology shown in relation to the hands during service was a fractured left ring finger (for which the Veteran is service connected and assigned a non-compensable rating) and minor lacerations to the left index finger and middle right finger. At the Veteran’s May 1996 separation examination, his upper extremities were found to be normal. On his May 1996 report of medical history at separation no wrist pathology was noted, and the only hand related orthopedic or neurologic pathology noted was the left ring finger fracture. In a June 2015 notice of disagreement, the Veteran indicated that his hands were painful and weak, and he attributed the problem to injuries from his time in the military. At a January 2016 VA hand and finger examination, the Veteran was diagnosed with degenerative arthritis of both hands. The Veteran reported that his hands ached and were stiff in the morning. He indicated that he did not know why this was the case. The Veteran also indicated that he noticed hand pain and weakness in the evening. Physical examination showed that range of motion of both hands was normal. The examiner commented that the bilateral hand condition was mild in severity. At a January 2016 VA peripheral nerves examination, the diagnosis was bilateral carpal tunnel syndrome, mild. The symptoms were noted to include moderate intermittent pain, mild paresthesias and/or dysesthesias and mild numbness. Medial nerve evaluation showed positive Tinel’s and Phalen’s signs. The Veteran indicated that the condition caused him to drop things easily. The examiner opined that the Veteran’s CTS was less likely than not (less than 50% probability) incurred in or caused by any claimed in-service injury, event or illness. Regarding the CTS and the hand arthritis, the examiner indicated that the Veteran’s current right hand conditions were not related to laceration injury to the fingers while on active duty, nor were they related to the fracture of the left ring finger. In a February 2016 addendum opinion, the January 2016 examiner found that the Veteran’s current left and right hand conditions were not related to the laceration injury to the fingers while on active duty, nor were they related to the fracture of the left ring finger. In a July 2017 supplemental opinion, the VA examiner opined that the bilateral hand arthritis and CTS are less likely than not caused by any in-service injury, event or disease. The examiner concluded that the hand arthritis and CTS are not related to the laceration injury to the fingers while on active duty, nor are they related to the fracture of the left ring finger. The examiner noted that the Veteran’s arthritis is essentially equal radiographically in both hands, and the location at the carpometacarpal (CMS) joint is a common age-related location for hand arthritis to develop. The examiner also reasoned that CTS is a pathology affecting the median nerve and the carpal tunnel in which it resides, which has no connection to the in-service hand injuries. Additionally, the examiner opined that the Veteran’s current CTS and arthritis conditions are not aggravated by the fracture of the left ring finger on active duty, nor are they aggravated by the laceration injury. The examiner noted that the Veteran’s arthritis is essentially equal radiographically in both hands, and the location at the CMC joint is a common age-related location for hand arthritis to develop. Also, CTS is a pathology affecting the median nerve and the carpal tunnel in which it resides, which has no connection to the inservice hand injuries. The above summarized evidence does not show any indication of bilateral hand arthritis or bilateral CTS during service. In this regard, the service treatment records are negative for any such pathology and the Veteran has not alleged that such pathology was present in service. Post-service, the earliest medical evidence of the arthritis and CTS is the January 2016 examination, where these diagnoses were rendered. The absence of any indication of a relevant medical complaint of the arthritis or CTS until many years after service tends to weigh against the presence of a direct relationship between the hand arthritis and CTS and the Veteran’s service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom; Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, there is no medical opinion of record that tends to indicate that the current arthritis or CTS is otherwise directly related to service. To the contrary, the July 2017 VA examiner’s opinion tends to weigh against such a relationship, as the examiner concluded that that the bilateral hand arthritis and CTS are not related to the laceration injury to the fingers while on active duty, nor are they related to the fracture of the left ring finger. The examiner supported this opinion with sufficient rationale. The examiner explained that the Veteran’s arthritis is essentially equal radiographically in both hands and that the location at the CMC joint is a common age-related location for hand arthritis to develop. The examiner also explained that CTS, is a pathology affecting the median nerve and the carpal tunnel in which it resides, which has no connection to the inservice hand injuries. Accordingly, the weight of the medical evidence is against a finding that the current bilateral hand arthritis and CTS are directly related to any event, injury or disease in service. Regarding secondary service connection, the July 2017 VA examiner opined that the current CTS and bilateral hand arthritis are less likely than not proximately due or the result of, or aggravated by, the Veteran’s service-connected left ring finger fracture. The examiner supported this opinion with sufficient rationale. The examiner again explained that the Veteran’s arthritis is essentially equal radiographically in both hands; that the location at the CMC joint is a common age-related location for hand arthritis to develop; and that CTS is a pathology affecting the median nerve and the carpal tunnel in which it resides, which has no connection to the inservice hand injuries. Moreover, there is no medical opinion of record to the contrary (i.e. an opinion tending to indicate that the current hand arthritis or CTS has been caused by the Veteran’s service-connected fracture of the left ring finger). Accordingly, the weight of the medical evidence is against a finding that the current bilateral hand arthritis and CTS have been caused or aggravated by the service-connected left ring finger fracture. Although the Veteran asserts that his current hand/wrist disability is related to service and/or has been caused or aggravated by his service-connected left finger fracture, as a layperson with no demonstrated expertise concerning the etiology of arthritis or CTS, the Board is not able to afford this assertion any probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In her July 2019 brief, the Veteran’s attorney noted that service connection is already in effect for left shoulder arthritis. She also noted that in May 2019, VA updated the M-21 Manual to indicate that when a rating is assigned for one joint under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (for degenerative arthritis), every joint or joints affected by the disease is subject to service connection absent the presence of an intervening cause. Thus, she argued that because the left shoulder disability is service-connected and has been assigned a rating for arthritis under Code 5003, then the bilateral hand arthritis should also be subject to service connection. The attorney also noted that the Veteran’s bilateral ankle disability is also already subject to service connection. The provisions of the M21-1 Manual are not binding on the Board. Moreover, an intervening cause for the bilateral hand arthritis is shown. In this regard, the May 2017 VA physician explained that the Veteran’s arthritis is essentially equal radiographically in both hands and that the location at the CMC joint is a common age-related location for hand arthritis to develop. Thus, his opinion indicates that the intervening cause of the Veteran’s hand arthritis is age. Accordingly, given that an intervening cause for the arthritis is shown, service connection is not warranted for the disease pursuant to the M21 manual provisions even if they were binding on the Board. See Manual M21-1 §§ III.iv.B.2.a and III.iv.4.B.2.e. (last accessed on March 23, 2020). In sum, because the Veteran’s bilateral hand arthritis and bilateral CTS were not shown in service or for many years thereafter; are not otherwise shown to be directly related to service; and are not shown to be caused or aggravated by his service-connected left ring finger fracture, the preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. §§ 3.303, 3.310; Alemany, 9 Vet. App. 518 (1996). 2. Entitlement to service connection for bilateral eye disability, to include residuals of chemical burns to the eyes. The Veteran alleges that he has current bilateral eye disability due to chemical burns to the eyes occurring in service. The service treatment records do not show that the Veteran suffered any eye injury from chemical burns. In August 1983, the Veteran was found to have conjunctivitis. In April 1984, he was found to have light sensitivity akin to photophobia. At his May 1996 separation examination, the eyes were found to be normal with 20/20 vision. On his May 1996 report of medical history at separation, the Veteran reported that he wore contact lenses or glasses and did not have a history of eye trouble. Post-service, the evidence does not show any current eye disability by VA compensation standards. Notably, the evidence indicates that the Veteran has refractive error, but this is not considered a disability for VA compensation purposes. See Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Service connection may not be allowed for a congenital or developmental defect of the eyes (such as refractive error), even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Additionally, the Veteran has not specifically alleged the presence of a current eye disability for which VA compensation can be awarded. In the absence of current disability, there can be no claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Veteran’s claim for bilateral eye disability must be denied. The Board also notes that a VA examination was not necessary in this case because a current eye disability or symptoms of a current eye disability are not shown; there is no evidence of any continuity of eye symptomatology since service; and there is no medical evidence, which even suggests a relationship between a current eye problem and the Veteran’s military service. 38 C.F.R. § 3.159(c)(4). The preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. § 3.303; Alemany, 9 Vet. App. 518 (1996). REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for left shoulder disability is remanded. Entitlement to a rating in excess of 10 percent for right ankle disability is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran most recently received examinations to assess the current severity of his service-connected right ankle disability, hearing loss and left shoulder disability in April 2015. In a June 2019 brief, the Veteran’s attorney indicated that the Veteran had communicated that the ankle disability and hearing loss had materially worsened since these examinations. Also, in February 2020, the attorney submitted medical evidence tending to indicate worsening of the left shoulder disability since the April 2015 examination. See e.g. January 2019 private progress note. Given the potential worsening of the right ankle disability and hearing loss communicated by the Veteran and the potential worsening of the left shoulder disability suggested by the recently received private medical evidence, remand is necessary to provide the Veteran with updated VA examinations. The matters are REMANDED for the following action: 1. Obtain any VA treatment records dated from June 2017 to the present. Also, obtain any recent private treatment records pertaining to the left shoulder, right ankle and hearing loss, which are appropriately identified by the Veteran (and are not already of record). 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left shoulder and right ankle disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. 3. After the development in #1 has been completed, schedule the Veteran for a VA audiological evaluation to determine the current severity of his bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.