Citation Nr: 21001291 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 19-08 312 DATE: January 7, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for left carpal tunnel syndrome is granted. REMANDED Entitlement to an increased rating in excess of 10 percent for a chronic left knee strain is remanded. Entitlement to an effective date prior to February 10, 2017 for the grant of an increased rating of 30 percent for irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD) is remanded. Entitlement to an increased rating in excess of 30 percent for IBS with GERD is remanded. Entitlement to an increased rating in excess of 10 percent for a left ankle strain is remanded. Entitlement to an increased rating in excess of 10 percent for a right ankle strain is remanded. Entitlement to an increased rating in excess of 20 percent for a left shoulder strain is remanded. Entitlement to an increased rating in excess of 20 percent for a right shoulder strain (dominant) is remanded. Entitlement to an increased rating in excess of 10 percent prior to May 1, 2019 and in excess of 20 percent thereafter for a chronic lumbosacral strain is remanded. Entitlement to an increased rating in excess of 10 percent for asthma (claimed as bronchitis) is remanded. Entitlement to an increased rating in excess of 10 percent for tinnitus is remanded. Entitlement to a compensable rating for hemorrhoids is remanded. Entitlement to a compensable rating for migraine headaches is remanded. Entitlement to an increased rating in excess of 50 percent for an acquired psychiatric disorder diagnosed as Bipolar II Disorder (also claimed as adjustment disorder) is remanded. Entitlement to service connection for a traumatic brain injury (TBI), to include whether new and material evidence has been received, is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for left carpal tunnel syndrome is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation based on a need for aid and attendance under the provisions of 38 U.S.C. § 1114(l) or at the housebound rate under the provisions of 38 U.S.C. § 1114(s) is remanded. FINDING OF FACT 1. In a January 2012 rating decision, the Veteran’s service connection claim for left carpal tunnel syndrome was denied. The Veteran did not appeal or otherwise submit relevant evidence during the one-year period following the decision and the decision is final. 2. Since the January 2012 rating decision, new and material evidence, in the form of new lay evidence and VA and private medical evidence, has been received. CONCLUSION OF LAW 1. The January 2012 rating decision denying service connection for left carpal tunnel syndrome is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence having been received, the criteria for reopening the claim of entitlement to service connection for left carpal tunnel syndrome have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 2003 to December 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2017 and October 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that the RO granted an increased rating for the Veteran’s acquired psychiatric disorders, lumbar strain disability, and left and right shoulder disabilities in a February 2020 rating decision. As these awards are not a full grant of benefits sought on appeal, the issues remain in appellate status. Additionally, during the course of the appeal, the RO granted service connection for the Veteran’s right carpal tunnel syndrome in a February 2020 rating decision. As this is a grant of full benefits sought on appeal, that issue is no longer on appeal before the Board. If the Veteran disagrees with the initial rating assigned to the grant of service connection for her right carpal tunnel syndrome, she must file a notice of disagreement as to the February 2020 rating decision. 1. New and material evidence has been received to reopen the claim of entitlement to service connection for left carpal tunnel syndrome. Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. Under 38 C.F.R. § 3.156(a), evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary’s duty to assist by providing a medical opinion. For the purpose of determining whether a case should be re-opened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran is seeking to reopen a previously denied claim for service connection left carpal tunnel syndrome. A January 2012 rating decision found that the evidence failed to show any in-service incurrence or a current diagnosis of left carpal tunnel syndrome. In January 2012, she was advised of the decision and her appellate rights. No further communication regarding her claim of entitlement to service connection was received until February 2017, when VA received her petition to reopen such claim. Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). As such, the January 2012 rating decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. Evidentiary submissions received since the January 2012 rating decision includes additional VA and private treatment records, VA examinations, and lay statements from the Veteran and her sister. A review of the new evidence shows she complained of left wrist pain in September 2013. See April 2017 Medical Treatment Record-Government Facility. A June 2019 VA examiner further noted the Veteran was diagnosed with bilateral carpal tunnel syndrome since the 2000s. Evaluation of the Veteran further indicated she had a positive Phalen’s and Tinel’s sign. Accordingly, the Board finds that the evidence received since the January 2012 rating decision is new because it was not previously submitted to VA for consideration at the time of the January 2012 rating decision. The evidence is also material as it raises a reasonable possibility of substantiating her service connection claim for left carpal tunnel syndrome. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Further, the credibility of the evidence is presumed for the purpose of reopening. Justus, supra. Therefore, as new and material evidence has been received, the previously denied claim of entitlement to service connection for left carpal tunnel syndrome is reopened. Unfortunately, the Board finds the underlying claim of entitlement to service connection for left carpal tunnel syndrome must be remanded for further development as discussed below. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 10 percent for a chronic left knee strain is remanded. 2. Entitlement to an effective date prior to February 10, 2017 for the grant of an increased rating of 30 percent for irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD) is remanded. 3. Entitlement to an increased rating in excess of 30 percent for IBS with GERD is remanded. 4. Entitlement to an increased rating in excess of 10 percent for a left ankle strain is remanded. 5. Entitlement to an increased rating in excess of 10 percent for a right ankle strain is remanded. 6. Entitlement to an increased rating in excess of 20 percent for a left shoulder strain is remanded. 7. Entitlement to an increased rating in excess of 20 percent for a right shoulder strain (dominant) is remanded. 8. Entitlement to an increased rating in excess of 10 percent prior to May 1, 2019 and in excess of 20 percent thereafter for a chronic lumbosacral strain is remanded. 9. Entitlement to an increased rating in excess of 10 percent for asthma (claimed as bronchitis) is remanded. 10. Entitlement to an increased rating in excess of 10 percent for tinnitus is remanded. 11. Entitlement to a compensable rating for hemorrhoids is remanded. 12. Entitlement to a compensable rating for migraine headaches is remanded. 13. Entitlement to an increased rating in excess of 50 percent for an acquired psychiatric disorder diagnosed as Bipolar II Disorder (also claimed as adjustment disorder) is remanded. 14. Entitlement to service connection for a traumatic brain injury (TBI), to include whether new and material evidence has been received, is remanded. 15. Entitlement to service connection for fibromyalgia is remanded. 16. Entitlement to service connection for bilateral hearing loss is remanded. Upon review of the evidence, there appears to be outstanding medical records with respect to the Veteran’s increased rating and service connection claims. During an August 2017 VA examination, the VA examiner noted the Veteran was involved in a motor vehicle accident (MVA) in 2015 but noted that inpatient treatment records following the 2015 MVA along with outside treatment records from Peak Vista Health were not available for review during the examination. The Veteran’s August 2020 private medical treatment record further indicates that she was granted social security disability income (SSDI) in September 2017 and an August 2020 private psychiatrist referenced review of the Veteran’s social security records. However, upon review of the Veteran’s claims file, it does not appear that the inpatient treatment records following the 2015 MVA, treatment records at Peak Vista Health, or social security records have been associated with her claims file for the Board’s review. Further, it does not appear that VA has made any efforts to obtain these medical records which may be relevant to adjudication of her claims on appeal. As these records may be pertinent to the Veteran’s increased rating claims, earlier effective date claim, and service connection claims, these records should be sought on remand. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also 38 U.S.C. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Pertaining to the Veteran’s service connection claim for fibromyalgia, the Board notes she was diagnosed with fibromyalgia in March 2012. A review of her service treatment records further shows fibromyalgia noted as a chronic problem in September 2011. However, it does not appear that she has been provided with a VA examination to determine the nature and etiology of her fibromyalgia. As the Veteran has a current diagnosis of fibromyalgia and there is an in-service diagnosis of fibromyalgia, the low threshold for purposes of triggering VA’s duty to provide an examination has been met for this specific claimed disability. Thus, upon remand, a VA examination is warranted to determine the nature and etiology of the Veteran’s fibromyalgia. 17. Entitlement to service connection for left carpal tunnel syndrome is remanded. While the Board found that new and material evidence has been received and the Veteran’s claim is reopened, the matter must be remanded to obtain an adequate VA examination. In a September 2010 VA examination, the Veteran reported having intermittent bilateral wrist pain which worsened with keyboarding for six to eight hours per day at her job. Upon a physical examination of her wrists and review of a July 2010 X-ray of the wrists, the VA examiner stated that she had a normal left wrist x-ray and that there was insufficient evidence to diagnose the Veteran with an acute or chronic left median sensory or motor neuropathy (carpal tunnel syndrome) of the wrist. However, no medical opinion was provided. She was provided with another VA examination in June 2019, which indicated that she had a diagnosis of bilateral carpal tunnel syndrome. However, the VA examiner opined that it was less likely than not that her left carpal tunnel syndrome is related to service. The VA examiner stated it was less likely than not that her left carpal tunnel syndrome is due to military service given the lack of any prior objective evidence and that it was more likely her left carpal tunnel syndrome occurred after service. Here, the Board finds that the VA medical opinion is merely conclusory because it is based solely on the absence of in-service treatment and contemporaneous treatment of the condition. Moreover, while the June 2019 VA examiner noted the Veteran’s January 2010 VA examination did not show positive Tinel’s sign for her left wrist, the June 2019 VA examiner did not consider the Veteran’s lay statements of intermittent wrist pain when typing or writing for six to eight hours a day. Based on the foregoing reason, the Board finds that a remand is warranted to provide the Veteran with another VA examination to determine the etiology of her left carpal tunnel syndrome. 18. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. 19. Entitlement to special monthly compensation based on a need for aid and attendance under the provisions of 38 U.S.C. § 1114(l) or at the housebound rate under the provisions of 38 U.S.C. § 1114(s) is remanded. Concerning entitlement to TDIU and SMC, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning TDIU and SMC. As such, they are inextricably intertwined with the increased rating claims and service connection claims being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). These issues should be readjudicated by the RO along with the increased rating and service connection claims once the development requested has been completed. These matters are REMANDED for the following action: 1. Provide the Veteran with the appropriate release form(s) necessary to request treatment records pertaining to treatment she received following her motor vehicle accident in 2015, to include treatment records from Peak Vista Health, as well as any other private facility where she received treatment following the motor vehicle accident. All attempts to procure the records should be documented in the file. If any records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran and her attorney should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. 2. Contact the SSA and request a copy of the Veteran’s complete SSA disability benefits file, including all associated medical records, and associate all records received with the claims file. All attempts to procure the records should be documented in the file. If the records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran and her attorney should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. 3. Afford the Veteran the opportunity to attend a VA examination with an appropriate specialist to address the nature and etiology of her fibromyalgia. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran’s fibromyalgia was incurred during or caused by active service? The examiner should specifically address the notation of fibromyalgia in September 2011 in providing his/her opinion. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Afford the Veteran the opportunity to attend a VA examination with an appropriate specialist to address the nature and etiology of her left carpal tunnel syndrome. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran’s left carpal tunnel syndrome was incurred during or caused by active service? The examiner should specifically address the Veteran’s report of intermittent bilateral wrist pain which worsened with keyboarding for six to eight hours per day at the September 2010 VA examination in providing his/her opinion. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. [CONTINUED ON NEXT PAGE] All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. T. SHERRARD Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.