Citation Nr: 20050160 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 12-33 704 DATE: July 28, 2020 ORDER Service connection for right upper extremity neuropathy is denied. Service connection for an acquired psychiatric disorder is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s current right upper extremity neuropathy is not secondary to his service-connected cervical spine disability and is not otherwise related to an in-service injury or disease. 2. The Veteran’s current acquired psychiatric disorder is proximately due to his service-connected cervical spine disability. 3. The Veteran’s service-connected disabilities have precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for right upper extremity peripheral neuropathy due to service or a cervical spine disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for an acquired psychiatric disorder as secondary to the Veteran’s service-connected cervical spine disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to August 1980. The Board remanded the Veteran’s claim for entitlement to TDIU in January 2014, then remanded all of the issues on appeal for additional development in September 2018. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Alternatively, service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Right Upper Extremity Neuropathy The Veteran contends that he is entitled to service connection for right upper extremity neuropathy as related to alcohol consumption while he was in service, or, in the alternative, as secondary to his service-connected cervical spine disability. The question for the Board is whether the Veteran has a current disability that is related to his active duty service or is proximately due to, the result of, or aggravated beyond its natural progress by his service-connected cervical spine disability. The Board concludes that, while the Veteran has a current diagnosis of carpal tunnel syndrome, the preponderance of the evidence weighs against finding that the Veteran’s disability began during service, is otherwise related to an in-service injury, event, or disease, or is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. During an April 2011 VA examination related to his cervical spine, the Veteran reported no symptoms related to right upper extremity neuropathy and the objective examination, to include regarding vibration, position, pain/pinprick, and light touch, of his right upper extremity was normal. The Veteran first complained of numbness and paresthesias in his right hand during an April 2014 VA examination, decades after his separation from service. During a June 2019 VA examination, the Veteran stated that his symptoms began in 1986 and had come and gone since that time. While the Veteran is competent to report having experienced symptoms of numbness and paresthesia intermittently since 1986, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of either right upper extremity neuropathy or carpal tunnel syndrome. The issue is medically complex, as it requires knowledge of the relationship between alcohol consumption and nerve degeneration, the physical mechanism of nerve entrapment, and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The April 2014 VA examiner found that the Veteran had no symptoms of radiculopathy in his right upper extremity and instead had distal sensory polyneuropathy. The examiner opined that the polyneuropathy was definitively not due to his cervical spine disability and was is instead most likely due to alcoholic toxic polyneuropathy but provided no explanation for the diagnosis or opinion. As such, the opinion is inadequate and is afforded little to no probative weight. A June 2019 VA examiner gave the Veteran a diagnosis of carpal tunnel syndrome after an objective examination demonstrated mild incomplete paralysis of the Veteran’s right median nerve. The examiner opined that the Veteran’s condition was less likely than not related to his service. The examiner explained that the Veteran’s service treatment record demonstrated no history or diagnosis of any type of right upper extremity neuropathic diagnosis, and his March 1980 separation examination demonstrated no indication of any type of alcohol induced neuropathy or carpal tunnel syndrome. The examiner further noted the Veteran’s current medical record included an NCV/EMG in 2014 that demonstrated possible right carpal tunnel but was otherwise negative. The examiner opined that the Veteran did not have a right upper extremity alcoholic neuropathy and instead had carpal tunnel syndrome, which could at times be a nerve entrapment syndrome associated with chronic alcohol use. In the Veteran’s case, however, the examiner opined that this was not the case. The first definitive study demonstrating neuropathic changes was an EMG/NCV in 2014, greater than 34 years post military service. The examiner opined that the Veteran’s active service history was a period of seven months and chronic alcoholic neuropathy does not typically develop in this short time frame and is more closely related to lifetime alcohol consumption with gradual onset, citing medical literature in support of the analysis. The examiner further noted that the development of this condition is generally accompanied by malnutrition, which would have been unlikely during the period of military service as the Veteran would have been provided meals. Therefore, the examiner concluded that development of the claimed condition would not be able to be stated at a good medical probability of 50 percent or greater to have first incurred or been caused by any act of active military service, including excessive use of alcohol during service, and instead developed post-service. In a September 2019 addendum opinion, the examiner opined the Veteran’s claimed right upper extremity neuropathy was less likely than not secondary to his cervical spine condition. The examiner explained that cervical spine imaging of 2008 and 2011 did not demonstrate any changes that would be consistent with a generalized right upper extremity neuropathy. The examiner further explained that carpal tunnel is an entrapment of the median nerve at the carpal tunnel, a structure at the level of the wrist, causing symptoms of carpal tunnel syndrome in the hand. The NCV/EMG studies in the record did not demonstrate any changes above the level of the wrist. Therefore, the examiner concluded the site of entrapment was at the wrist and not the cervical spine. The examiner further noted that carpal tunnel is common to the Veteran’s post-service employment as a mechanic due to the repeated use and exposure to vibratory forces. The June 2019 VA examiner’s opinion, along with the September 2019 clarifying addendum opinion, is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his right upper extremity neuropathy is related to an in-service injury, event, or disease, or was proximately due to or the result of a service-connected disability. However, the Veteran has not been shown to be competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships related to nerve conduction, the pathology of toxic neuropathy, and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for right upper extremity neuropathy and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The appeal of this issue is denied. 2. Acquired Psychiatric Disorder The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, which he asserts was caused or aggravated by his service-connected cervical spine disability, headaches, and left upper extremity radiculopathy. In a February 2015 private medical opinion, and a later March 2020 addendum opinion, H.H.-G., Ph.D., opined that the Veteran had a diagnosis of depressive disorder due to another medical condition with mixed features. H.H.-G. opined that pain resulting from the Veteran’s cervical spine disability and left upper extremity radiculopathy caused his depressive disorder, explaining that there is a causal relationship between medical and psychiatric difficulty and cited medical literature in support of the opinion that there is a causal relationship between pain and psychiatric disorders. In her March 2020 addendum, H.H.-G. reiterated her opinion, and added that the Veteran’s headaches also caused or aggravated his acquired psychiatric disorder. Pursuant to the Board’s remand directive, the Veteran was afforded a VA examination in June 2019. The examiner diagnosed sever alcohol use disorder in early remission and unspecified neurocognitive disorder, likely alcohol related, and opined that the diagnoses were less likely than not related to service, explaining that alcohol use disorder is in remission and the neurocognitive disorder is mild with likely only mild impairment in work functioning. The examiner also asserted that the Veteran did not have a current diagnosis of anxiety or depression but failed to address the documented diagnosis of anxiety in earlier VA treatment records and the diagnosis of depressive disorder given by H.H.-G. in the February 2015 opinion. As such, the VA examination is inadequate. However, despite the lack of an adequate VA examination, because the Board is granting the Veteran’s claim for service connection for an acquired psychiatric disorder, an additional remand for an adequate VA examination is not necessary. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current acquired psychiatric disorder is proximately due to, or aggravated beyond its natural progression by, his service-connected cervical spine disability, headaches, and left upper extremity radiculopathy. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder on a secondary basis is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; 3.310(a). 3. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that 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). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. §§ 4.16(a) (2020). The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase “unable to secure and follow a substantially gainful occupation” under 38 C.F.R. § 4.16(b). The Court defined the term to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component, which is pertinent in this case, includes consideration of: The Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. After a review of the evidence of record, the Board finds that entitlement to TDIU is warranted. At the time of the Veteran’s initial claim for entitlement to TDIU, the Veteran’s combined evaluation for VA compensation was a combined 40 percent. Therefore, the Veteran did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). Pursuant to the Board’s January 2014 remand, the AOJ obtained an advisory opinion from the Director of the Compensation Service (the Director) in May 2017, who determined that an extraschedular TDIU was not warranted prior to March 17, 2011 based on the Veteran’s service-connected disabilities. Because the Director determined that an extraschedular evaluation was not warranted, the Board now has jurisdiction to decide the extraschedular claim on the merits. See Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009). Since May 20, 2014, the Veteran’s combined disability rating has been in excess of 70 percent and he has at least one disability rated at 40 percent; he has therefore met the schedular criteria. See 38 C.F.R. § 4.16(a). But the Board must still consider whether his service-connected disabilities have precluded him from securing and following substantially gainful employment for that period. See 38 C.F.R. §§ 3.341, 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In his March 2012 Application for Increased Compensation Based on Unemployability, the Veteran asserted that he was unable to work due to all of his service-connected disabilities. He reported he had last worked as a drywall finisher in 2007, had completed two years of high school, and had no other training. There is no indication in the record that the Veteran has worked full time or obtained any additional training since that time. During his February 2015 interview with H.H.-G., the Veteran again reported the highest grade he completed was eighth or ninth, the longest job he ever held was as an equipment operator for a logging company, and the last job he held was finishing drywall for one-and-a-half years, ending in 2007. There is ample evidence that the Veteran’s service-connected disabilities prevent him from obtaining and maintaining gainful employment. An April 2014 VA examiner opined that the Veteran’s cervical spine disability impairs lifting, carrying, working with his arms overhead, and any repetitive physical tasks where the neck must be stabilized upon the trunk via the neck musculature. In February 2015, H.H.-G. opined that the Veteran’s now service-connected acquired psychiatric disorder would cause the Veteran to miss or leave work three or more days each month, limit his ability to focus for seven house of an eight hour day three or more days per month, and cause him to respond in an angry manner more than once per month. Also in February 2015, Dr. H.S. opined that the Veteran’s service-connected headaches would cause him to miss work or leave work early three or more days per week and would prevent concentration for seven hours of an eight-hour day more than three days per month and had rendered him unable to maintain substantially gainful employment. Finally, in June 2018, S.B., a vocational consultant, reported that, according to at least two studies, the acceptable absence rate for employers was between seven and eight days per year and opined that the Veteran’s absence rate would exceed that due to his physical and emotional symptoms. She further opined that the Veteran would be unable to perform physical work due to his migraine headaches and cervical spine condition, which resulted in impairment with lifting, carrying, working with arms overhead, and any repetitive physical tasks. He would therefore be unable to perform his prior work as a drywall finisher or handyman. Ultimately, S.B. opined that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his migraine headaches, cervical spine disability, and left upper extremity radiculopathy. In addition to the opinion of the vocational evaluation, and in light of the Court’s holding in Ray, the Board finds significant that the Veteran worked has worked doing physical labor since in various roles since service, did not complete high school, and there is no indication that he has any other occupational experience or training. Therefore, having considered the Veteran’s history, education, skill, and training along with the evidence of record, the Board finds that the Veteran has been rendered unable to obtain and maintain a substantially gainful occupation due to limitations resulting from a combination of his service-connected disabilities. Accordingly, TDIU is granted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine 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.