Citation Nr: 20054030 Decision Date: 08/14/20 Archive Date: 08/14/20 DOCKET NO. 17-39 897A DATE: August 14, 2020 ORDER Service connection for a bilateral wrist disability is denied. REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a bilateral elbow condition is remanded. Entitlement to service connection for bilateral upper extremity nerve damage is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a current bilateral wrist disability at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a bilateral wrist disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1987 to November 2008. In April 2019, the Board issued a decision denying service connection for a bilateral wrist disability and for bilateral upper extremity nerve damage, and remanded the claims for service connection for a bilateral elbow disability and for a sleep disorder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Order, the Court granted the Joint Motion for Partial Remand (JMPR), thereby vacating the Board’s April 2019 decision, in part, and remanding the issues of entitlement to service connection for a bilateral wrist disability and for bilateral upper extremity nerve damage back to the Board. 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. §§ 1110, 1131; 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). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that "'disability' in § 1110 refers to the functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment." In determining whether a particular pain reaches the level of "functional impairment of earning capacity," both medical and lay evidence must be considered. 38 C.F.R. § 3.303 (a); see also 38 C.F.R. § 4.10 ("Functional impairment") ("The basis of disability evaluations is the ability of the body... to function under the ordinary conditions of daily life including employment."). In assessing functional impairment, a veteran's lay assertions may be weighed against contrary medical evidence, but not categorically dismissed. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). 1. Entitlement to service connection for a bilateral wrist disability. The Veteran contends that he has a bilateral wrist disability that is related to his active service. The question for the Board is whether the Veteran had a current bilateral wrist disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. For the reasons discussed below, the Board finds that there is no current bilateral wrist disability for which service connection can be granted. The Board also notes that discussion of any neurological disabilities pertaining to the wrist will be addressed in the context of the claim for service connection for bilateral upper extremity nerve damage Review of the record includes service treatment records (STRs) which show that in March 2008, the Veteran reported wrist pain along with shoulder pain. The shoulder was the focus of the examination, and no diagnosis was rendered with regard to the wrists. At his April 2008 retirement examination, the Veteran did not report any wrist problems, despite reporting several musculoskeletal symptoms. Following separation from service, the Veteran was afforded a VA general medical examination in January 2009. He did not report any wrist problems at that examination. A VA treatment record dated November 26, 2014, showed that the Veteran was seen for physical therapy. He reported bilateral wrist pain, and had full range of motion on examination. No diagnosis was rendered. With regard to this record, in the JMPR, the parties agreed the Board did not sufficiently identify evidence it relied on, noting that the Board relied on a November 2014 treatment record, but the record appeared to be devoid of such record, and the Board did not provide additional detail. The parties agreed a remand was warranted for the Board to clarify its finding, and to specifically identify this record. The Board finds that this has been accomplished, and no further action is required to comply with the JMPR. After reviewing the foregoing, the Board concludes that the Veteran does not have a current diagnosis of a bilateral wrist disability, and has not had any such diagnosis or disability at any time during the pendency of the claims or recent to the filing of the claims. McClain v. Nicholson, 21 Vet. App. 319 (2007). While he has, through his pursuit of a service connection claim, described symptoms of bilateral wrist pain that started in service, there has been no evidence in the record of persistent or recurrent symptoms of a bilateral wrist condition, and no evidence showing that symptoms of the bilateral wrists caused functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Lacking a current disability, the cornerstone element of service connection has not been met, and service connection for a bilateral wrist disability is not warranted. Brammer v. Derwinski, 3 Vet. App. 223 (1992). REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder is remanded. The Veteran essentially contends he has a sleep disorder, distinct from his service-connected psychiatric disability, that is caused by pain from his service-connected disabilities (back, ankles, right shoulder, knees). In April 2019, the Board remanded this issue to obtain a VA examination to determine whether the Veteran has a sleep disorder that is distinct from his psychiatric disability. The Board noted that VA treatment records suggest he may a sleep disorder that is distinct from the sleep impairment caused by his psychiatric disability, and that may be related to pain from his service-connected disabilities. Additionally, in the April 2019 Board decision, it was noted that the Veteran’s correspondence received in May 2017 indicated he was claiming service connection for sleep apnea. The Board noted that although the Veteran indicated he wanted sleep apnea to be considered as part of his sleep disorder claim, sleep apnea has an etiology that is distinct from insomnia and similar sleep disorders and is therefore a new claim. The Board referred the claim to the Agency of Original Jurisdiction (AOJ) for adjudication. Review of the record, however, shows that the AOJ has not yet separately adjudicated a claim for service connection for sleep apnea. Rather, in December 2019, the AOJ requested a VA DBQ for “RESP sleep apnea”, noting that a sleep study had not been performed on the Veteran, but that if the evidence indicated a diagnosis of sleep apnea, a sleep study was to be completed to confirm the diagnosis. In February 2020, the Veteran underwent a VA sleep apnea disability benefits questionnaire (DBQ), in which it was noted that he did not have a diagnosis of sleep apnea, and that a diagnosis of sleep apnea must be confirmed by a sleep study. For medical history, it was noted that Vet has a history of insomnia, and that he wakes up and cannot get back to sleep. He had seen a VA doctor for this, but had not had a sleep study and one was not scheduled. As a result of insomnia, he was tired all day long. The examiner concluded that for the claimed condition of sleep disorder there was no diagnosis because the Veteran had not had a sleep study, and therefore, no diagnosis can be given. The examiner was asked to opine if the Veteran has a sleep disorder that is separate and distinct from his psychiatric disability, and, if so, whether this sleep disorder was caused or aggravated by a service-connected disability. The examiner checked the box for a negative opinion, but for rationale noted that the Veteran has not had a sleep study to rule out OSA (obstructive sleep apnea), RLS (restless leg syndrome) or any other sleep problems, and that until this is done, no diagnosis or opinion can be rendered. Although the VA examiner in 2019 rendered a negative opinion, the Board notes that the examiner noted that the Veteran had insomnia, but also indicated that because the Veteran had not had a sleep study to rule out OSA, RLS, or other sleep problems, no diagnosis or opinion could be given. Once VA undertakes the effort to provide an examination when developing a service connection claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board determines another VA opinion is warranted. The Board also notes that in the June 2020 supplemental statement of the case (SSOC), the AOJ continued the denial of service connection for a sleep disorder, noting that “multiple attempts were made to make contact to schedule a sleep study”, and that “[b]ecause of this, no diagnosis of a distinct sleep disorder could be made and no opinion could be rendered”. There is no indication in the record that the Veteran was contacted for this sleep study; thus, on remand such documentation should be obtained. 2. Entitlement to service connection for a bilateral elbow condition is remanded. The Veteran contends he has bilateral elbow pain that began during and has continued since active service. In April 2019, the Board remanded this issue, finding that a VA examination was necessary to determine whether the Veteran’s current bilateral elbow condition, diagnosed as epicondylitis, was etiologically related to the elbow problems he reported during active service. A VA DBQ examination conducted in February 2020 revealed a diagnosis of right and left lateral and medial epicondylitis. For medical history, it was noted that in the early 1990's, the Veteran would develop pain in his elbows if he did push-ups or pull-ups, or if he played racquetball. He reported he was treated with NSAIDs and ice a few times in service. The Veteran reported elbow pain all the time, and that he always had a dull aching pain in the elbows. The examiner was asked to opine as to whether the Veteran’s “current right elbow condition” was incurred during or caused by active service, and to discuss whether the current elbow condition is etiologically related to the elbow complaints documented in the 2008 retirement examination. The examiner rendered a negative opinion, citing for rationale that the only mention of an elbow was on the Veteran’s separation exam that noted elbow pain with throwing a ball, but did not say which one, and that he was not seen for many years after that so was less likely than not that his elbow problem was due to anything that occurred in the military. Although the VA examiner in 2019 rendered a negative opinion, the Board notes that the requested opinion only referenced the right elbow, as opposed to both elbows, as set forth in the 2019 remand, and the rationale, in part, notes that the 2008 retirement examination did not state which elbow was painful. Stegall v. West, 11 Vet. App. 268 (1998). Further, the rationale focuses on the fact that the Veteran was not seen for elbow pain for many years after service, but appears to discount the Veteran’s report of having elbow pain since service. Once VA undertakes the effort to provide an examination when developing a service connection claim, it must provide an adequate one. Barr v. Nicholson, supra. Accordingly, the Board determines another VA opinion is warranted. 3. Entitlement to service connection for bilateral upper extremity nerve damage is remanded. The Veteran contends he has nerve damage in his bilateral upper extremities that is related to active service. In the JMPR, the parties agreed the Board made an improper medical determination in denying the claim. In 2019, the Board denied the claim due to lack of a nexus, and noted the Veteran’s argument that the June 2016 examination was inadequate because the examiner did not include an opinion on whether the disability was related to a service-connected lumbar disability. The Board found that such opinion was not necessary because the nerves in the upper extremities trace back to the cervical spine, and that the Veteran did not have a service-connected cervical spine disability. The parties agreed the Board did not cite to any competent supporting authority or independent medical evidence in making this finding, and thereby violated Colvin v. Derwinski, 1 Vet.App. 171 (1991). Further, the parties agreed a remand was warranted for the Board to properly address the Veteran’s argument without violating Colvin, and, if necessary, consider whether a new medical examination or opinion may be warranted. In light of the foregoing, because the 2016 VA examination did not include an opinion as to whether the upper extremity nerve problems are related to the service-connected lumbar spine disability, an addendum VA opinion is warranted to address this discrepancy. See Barr v. Nicholson, supra. The matters are REMANDED for the following actions: 1. Send the Veteran a letter advising him that a sleep study has been requested by the VA examiner who conducted his April 2019 DBQ. Advise the Veteran of the date and time for the sleep study, and if a sleep study is conducted, associate the report of that study with the record. Ensure that any letters or documentation sent to the Veteran with regard to this request are associated with the record. 2. After completion of the foregoing request (meaning either the Veteran reports for or does not report for a scheduled sleep study), forward the claim to the VA examiner who provided the 2019 VA examination, for a supplemental opinion. The examiner should identify any and all current sleep disorders. The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran has a sleep disorder that is separate and distinct from his psychiatric disability? If he does have a separate and distinct sleep disorder, the examiner should opine as to whether it is at least as likely as not that this sleep disorder was caused or aggravated by his service-connected disabilities, to include his back, bilateral ankle, right shoulder, and bilateral knee disabilities. The examiner should opine as to whether the Veteran’s insomnia was caused or aggravated by service-connected disabilities, to include his back, bilateral ankle, right shoulder, and/or bilateral knee disabilities. The examiner must explain the rationale for any opinions given, and, if unable to provide any requested opinion without resorting to speculation, the examiner should so state and should provide an explanation as to the reason(s) therefor. If the original VA examiner (from 2019) is not available, please forward this request to another qualified examiner to comply with this request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted. 3. Forward the claim for service connection for a bilateral wrist condition to the VA examiner who provided the 2019 VA examination report, for a supplemental opinion. The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s current bilateral elbow condition was incurred during or caused by active service. The examiner should specifically discuss whether the current elbow condition is etiologically related to the elbow complaints documented in the April 2008 retirement examination report, as well as the Veteran’s contentions that he has had bilateral elbow pain since service. The examiner must explain the rationale for any opinions given, and, if unable to provide any requested opinion without resorting to speculation, the examiner should so state and should provide an explanation as to the reason(s) therefor. If the original VA examiner (from 2019) is not available, please forward this request to another qualified examiner to comply with this request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted. 4. Forward the claim for service connection for bilateral upper extremity nerve damage to the VA examiner who provided the 2016 VA examination report, for a supplemental opinion. The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s bilateral upper extremity nerve damage is proximately due to, or aggravated beyond its natural progression, by his service-connected lumbar spine disability. The examiner must explain the rationale for any opinions given, and, if unable to provide any requested opinion without resorting to speculation, the examiner should so state and should provide an explanation as to the reason(s) therefor. If the original VA examiner (from 2016) is not available, please forward this request to another qualified examiner to comply with this request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.