Citation Nr: 20042440 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 15-17 028 DATE: June 23, 2020 ORDER Entitlement to service connection for diverticulitis/diverticulosis is denied. Entitlement to a disability rating higher than 10 percent for right hand carpal tunnel syndrome (right CTS) is denied. Entitlement to a disability rating higher than 10 percent for left hand carpal tunnel syndrome (left CTS) is denied. Entitlement to a compensable disability rating for status post removal of colonic polyp is denied. FINDINGS OF FACT 1. The Veteran’s diverticulitis/diverticulosis did not originate during service and is not related to any incident of service. 2. The Veteran’s right CTS is manifested by no more than mild incomplete paralysis 3. The Veteran’s left CTS is manifested by no more than mild incomplete paralysis 4. The Veteran is not shown to have any residuals following removal of colon polyps. CONCLUSIONS OF LAW 1. The criteria for service connection for diverticulitis/diverticulosis are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.303. 2. The criteria for a disability rating higher than 10 percent for right CTS are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8515. 3. The criteria for a disability rating higher than 10 percent for left CTS are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.124a, DC 8515. 4. The criteria for an increased compensable rating for colonic polyp have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.113, 4.114, DC 7344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1972 to October 1992. The case was remanded in July 2018 for additional development. Service Connection The Veteran is seeking service connection for diverticulitis/diverticulosis. The Board notes that he has been diagnosed with both diverticulosis and diverticulitis, the latter of which is the terminology for when diverticulosis becomes inflamed. Dorland’s Illustrated Medical Dictionary p. 565 (31st Ed.) (2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that service connection for diverticulitis/diverticulosis is warranted because he was not specifically tested for it and believes he was misdiagnosed with irritable bowel syndrome as a result. See VA Form 9, received in April 2015. Although service records do note treatment for irritable bowel syndrome in February 1987, March 1988, and July 1989, they are otherwise negative for diverticulitis or diverticulosis. The Veteran underwent a barium enema with air contrast in July 1988 which showed a small polyp. A colonoscopy in September 1988 confirmed the polyp and was otherwise normal without lesions or evidence of diverticulitis. There are no records of additional follow-up evaluations or clinical findings during his remaining time in service to suggest that these episodes constituted a chronic disorder. A second colonoscopy was performed in November 1991 for history of colonic polyposis with no mention of diverticulitis. At the Veteran’s June 1992 separation examination, clinical evaluation revealed a normal abdomen and viscera, and no defects or diagnoses were noted. In the accompanying Report of Medical History, the Veteran reported that he was “in fairly good health” and denied any history of stomach, liver or intestinal trouble. There is also no indication the Veteran needed continued medical care due to gastrointestinal problems in the immediate years after his separation from service. The earliest evidence (documentation) of any pertinent symptoms or complaints is found in private clinical records in 2007, 15 years later. The Veteran’s history of colon polyps was noted, but he denied any current gastrointestinal complaints. A colonoscopy report shows diverticulosis of the ascending colon and the left colon, but no diverticulitis. See August 2007 colonoscopy report from Millenia Surgery Center. These treatment records do not suggest that any pertinent symptomatology originated during military service and there is no evidence of record to suggest the presence of diverticulosis or diverticulitis prior to the indicated date of diagnosis. Furthermore, there is no competent evidence linking the post-service diverticulitis/diverticulosis to the Veteran’s military service years earlier. VA providers submitted medical opinions in August 2010 and November 2014 which the Board found inadequate due to insufficient opinion and rationale. Both examiners found no evidence of diverticulitis, despite evidence that the Veteran was treated for and diagnosed for it during the pendency of the appeal. Another VA examination was obtained in March 2020. The Veteran reported a long history of stomach problems and that he underwent colonoscopy and polyp removal in 1988. He had several routine colonoscopies since the service without any problems. However, he did show diverticulosis and another polyp during a colonoscopy in 2004 and was instructed to stop eating popcorn because of “pockets” in his colon. He has since adjusted his diet with good results. After review of the record and examination, the examiner concluded that it was less likely than not (less than 50% probability) that the Veteran’s diverticulitis was related to service. It was explained that diverticulosis is common in older people due to the aging process and is unrelated to polyps. After weighing all the evidence, the Board is unable to attribute the Veteran’s diverticulitis/diverticulosis to his military service. Although he clearly received gastrointestinal evaluations during service, the symptoms were neither chronic nor continuous and did not result in a diagnosis of diverticulosis/diverticulitis. Furthermore, the only medical opinion of record does not link the diverticulitis/diverticulosis to military service. The VA examiner noted the Veteran’s in-service complaints but concluded that the current disorder did not result from it. The claims file contains no competent medical evidence refuting this opinion. To the extent the Veteran asserts that his current diverticulitis/diverticulosis represents a continuation of the type of symptoms he experienced during service such an assertion treads into the realm of medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). This is particularly true here, as there is no competent evidence of diverticulitis/diverticulosis in service and the Veteran has not provided any evidence to indicate that he was wrongly diagnosed. There is also a 15-year gap between service and the first documentation of diverticulitis/diverticulosis and no evidence relating it to service. Those factors confound any lay opinion on the matter, and require medical experience, education and training. The preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107 (b). Increased Rating The Veteran is seeking higher disability ratings for his service-connected right and left CTS and colonic polyp. Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. 38 C.F.R. § 4.31. The Veteran is in receipt of separate 10 disability ratings for CTS of the bilateral upper extremities under DC 8515, for paralysis of the median nerve. 38 C.F.R. § 4.124a. Neuritis of the median nerve is rated under DC 8615, and neuralgia of the median nerve is rated under DC 8715. Id. He contends that his symptomatology is more severe than contemplated under the assigned disability evaluations. Under DC 8515, mild incomplete paralysis of the median nerve of either extremity warrants a 10 percent disability rating. Moderate incomplete paralysis of the median nerve warrants a 20 percent (minor) or 30 percent (major) evaluation. Severe incomplete paralysis of the median nerve warrants a 40 percent (minor) or 50 percent (major) evaluation. Complete paralysis of the median nerve warrants a 60 percent (minor) or 70 percent (major) evaluation with the hand inclined to the ulnar side with the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, and the thumb in the plane of the hand (ape hand); incomplete and defective pronation of the hand with the absence of flexion of the index finger, feeble flexion of the middle finger, inability to make a fist, and index and middle fingers that remain extended; inability to flex the distal phalanx of the thumb with defective opposition and abduction of the thumb at right angles to the palm; weakened flexion of the wrist; and pain with trophic disturbances. 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The words “mild” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Evidence relevant to the severity of the Veteran’s CTS includes findings from a November 2010 VA examination report. He reported tingling in both hands treated with bracing. Neurological evaluation showed Phalen’s and Tinel’s signs for both extremities were positive. Reflexes were normal 2+ at the biceps, triceps, brachioradialis and finger jerk and motor strength were also normal at 5/5, but sensation was decreased to light touch at the index and long fingers. During outpatient evaluation in April 2011 the Veteran’s chief complaint was wrist and hand pain and paresthesias. An electromyograph and nerve conduction study (EMG/NCS) of the upper extremities noted moderate entrapment neuropathies across the carpal ligaments. However physical examination revealed muscle testing, sensory examination, and deep tendon reflexes were all normal and Tinel sign was negative at the wrist and elbow. See electrodiagnostic study from Central Florida Physiatrists, P.A., dated April 27, 2011. When examined by VA in November 2014, the Veteran reported decrease in grip strength of bilateral hands, left greater than right. He continued to have tingling of the bilateral hands that has worsened over time and used wrist braces. He also noted that he has to stop writing for a few minutes due to tingling sensation. Examination revealed normal muscle strength of 5/5 for elbow flexion, elbow, extension, wrist flexion, and wrist extension, grip, and pinch, bilaterally with no muscle atrophy. Reflexes were normal at 2+ for biceps, triceps and brachioradialis. Sensation was also normal throughout both upper extremities. The examiner indicated that special tests for median nerve evaluation showed positive Tinel’s and Phalen’s signs, but indicated the median nerve was normal. See Peripheral Nerves Condition DBQ, dated November 20, 2014. Subsequent treatment records do not reflect worsening CTS symptoms than those noted in the 2014 examination report. When examined most recently by VA in March 2020, the Veteran reported numbness and tingling in both hands which affected driving, typing, and writing. He also reported mild intermittent pain, mild paresthesia/dysesthesias and mild numbness. Examination revealed muscle strength testing was normal in the bilateral upper extremities, except for grip which was slightly weakened at 4/5 and there was decreased sensation in the hands and fingers bilaterally. Reflexes were normal at 2+ for biceps, triceps and brachioradialis. Phalen’s and Tinel’s signs for both extremities were positive and there was mild incomplete paralysis of the median nerve. Applying the regulations to the facts in the case, the Board finds that the criteria for ratings higher than 10 percent are not met. With the exception of mild paresthesia/dysesthesias and slightly weakened grip, there are few abnormal findings associated with the Veteran’s CTS. There is no evidence of more significant symptoms such as muscle atrophy, decreased reflexes, abnormal/limited movement of the fingers/thumb, or loss of dexterity in either hand. Moreover, VA examiners have specifically provided diagnoses of mild incomplete paralysis. Given the evidence as outlined above, the Board finds that the 10 percent ratings adequately reflect the Veteran’s impairment due to the service-connected bilateral CTS and assignment of a higher evaluation based on moderate incomplete paralysis is not appropriate. colon polyps The Veteran’s status post colonic polyp is rated as noncompensable under DC 7344 for benign neoplasms of the digestive system, exclusive of skin growths, should be evaluated under an appropriate diagnostic code, depending on the predominant disability or the specific residuals after treatment. 38 C.F.R. § 4.114. In support of the Veteran’s claim is an August 2010 VA examination report. He reported a history of colon polyp removal in 1988. Since then he has had three routine colonoscopies without any problems. A colonoscopy in 2006 showed one benign polyp. The Veteran denied any specific complaints and continuous medication was not required. Physical examination was within normal limits and the examiner noted no objective evidence of any residuals from the polyp removal. A November 2014 VA examination report shows the examiner noted that although the Veteran did have a prior history of colon polyps, a colonoscopy was done in 2012 and no polyps were found. There were no pertinent physical findings, complications, conditions, signs, symptoms attributable to colon polyps. When examined by VA March 2020, there were no current symptoms reported and the Veteran declined the rectal/anal examination. There were no reported findings, signs or symptoms attributable to colon polyps. Having reviewed the evidence, the Board finds a compensable evaluation is not warranted. The record shows the Veteran has a history of removal of benign colon polyps with no indication of any residuals following the polypectomies, so there is no disability to evaluate. The criteria for a compensable rating are not met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 C.F.R. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Bryant 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.