Citation Nr: 21002061 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-56 628 DATE: January 12, 2021 ORDER New and material evidence having been received, the claim for service connection for carpal tunnel syndrome is reopened. Entitlement to service connection for bilateral carpal tunnel syndrome is granted. Entitlement to service connection for Raynaud's syndrome is granted. Entitlement to service connection for status post right knee meniscectomy is granted. Entitlement to service connection for status post left knee replacement is granted. Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a cervical spine disorder is denied. Entitlement to service connection for thoracolumbar spondylolisthesis and degenerative disc disease is granted. Entitlement to service connection for sleep apnea is dismissed. REMANDED Entitlement to service connection for restless leg syndrome is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for rhinitis is remanded. FINDINGS OF FACT 1. In a July 1984 rating decision, service connection for carpal tunnel syndrome was denied on the basis that there was no evidence showing a relationship to service. 2. Evidence received after the July 1984 denial relates to unestablished facts necessary to substantiate that claim of service connection. 3. Resolving reasonable doubt in the Veteran’s favor, his bilateral carpal tunnel syndrome is at least as likely as not related to an insert in-service injury, event, or disease. 4. Resolving reasonable doubt in the Veteran’s favor, his Raynaud’s syndrome is at least as likely as not related to an insert in-service injury, event, or disease. 5. Resolving reasonable doubt in the Veteran’s favor, his status post right knee meniscectomy is at least as likely as not related to an insert in-service injury, event, or disease. 6. Resolving reasonable doubt in the Veteran’s favor, his status post left knee replacement is at least as likely as not related to an insert in-service injury, event, or disease. 7. The preponderance of the evidence is against finding that a left shoulder disorder began during active service, or is otherwise related to an in-service injury or disease. 8. The Veteran’s cervical spine disorder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established or is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury or disease. 9. Resolving reasonable doubt in the Veteran’s favor, his thoracolumbar spondylolisthesis and degenerative disc disease is at least as likely as not related to an in-service injury, event, or disease. 10. At the July 2020 hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the claim for service connection for sleep apnea is requested. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for carpal tunnel syndrome. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for bilateral carpal tunnel syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for Raynaud’s syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for status post right knee meniscectomy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for status post left knee replacement are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a cervical spine disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for service connection for thoracolumbar spondylolisthesis and degenerative disc disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for withdrawal of the claim for service connection for sleep apnea by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1974 to December 1980. He testified before the undersigned Veterans Law Judge during a July 2020 hearing. This matter is on appeal from a January 2015 rating decision. Since the September 2017 Statement of the Case, additional evidence has been submitted by the Veteran. As his substantive appeal was filed after February 2013, a waiver of Regional Office (RO) review is not required. See 38 U.S.C. § 7105(e)(1). Additionally, new evidence has been added to the claims file by the RO. As it pertains to the issues decided herein, since it is either not relevant or is cumulative or duplicative of information previously considered, a remand is not necessary. New and Material Evidence 1. Petition to reopen claim for service connection for carpal tunnel syndrome In this case, the Veteran did not submit a Notice of Disagreement (NOD) in response to a July 1984 rating decision denying service connection for carpal tunnel syndrome on the basis that there was no evidence showing a relationship to service. 38 U.S.C. § 7105. Evidence received since that decision includes a private September 2018 medical opinion relating carpal tunnel syndrome to service. This evidence is new to the record, as it suggests a relationship to service; relates to unestablished facts necessary to substantiate that claim for service connection; and raises a reasonable possibility of substantiating the claim. The claim is thus reopened. 38 C.F.R. § 3.156(a). As the Board of Veterans’ Appeals (Board) is granting service connection for bilateral carpal tunnel syndrome, the Veteran is not prejudiced by the adjudication below. Service Connection 2. Entitlement to service connection for bilateral carpal tunnel syndrome The Veteran contends that he has bilateral carpal tunnel syndrome due to using a jackhammer during service. July 2020 Hearing Transcript at 8. 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, 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). The Board concludes that the Veteran has a current disability that is related to his service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A June 2017 VA examination shows the Veteran has a current diagnosis of status post carpal tunnel release bilaterally. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes the June 2017 VA examiner’s opinion. The rationale was that the first notes of carpal tunnel syndrome were in 1983/1984, four years after separation, and no clinical notes of nerve issues during active service. The evidence in favor of the claim includes the private September 2018 opinion relating bilateral carpal tunnel syndrome due to the Veteran's work with a jackhammer during service. The opinion was based on review of the records, consultation with the Veteran regarding his years in service, and physically examining the Veteran. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bilateral carpal tunnel syndrome is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral carpal tunnel syndrome is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for Raynaud's syndrome The Veteran contends that he has Raynaud’s syndrome due to using a jackhammer during service. July 2020 Hearing Transcript at 8. The Board concludes that the Veteran has a current disability that is related to his service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). The private September 2018 medical opinion shows the Veteran has a current diagnosis of Raynaud’s syndrome. Thus, the question becomes whether the current disability is related to service. On this question there is only a probative opinion in favor of the claim. The evidence in favor of the claim includes the private September 2018 opinion relating Raynaud’s syndrome due to his work with a jackhammer during service. The opinion was based on review of the records, consultation with the Veteran regarding his years in service, and physically examining the Veteran. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s Raynaud’s syndrome is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for Raynaud’s syndrome is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for a right knee disorder 5. Entitlement to service connection for a left knee disorder The Veteran contends that he has a bilateral knee disorder due to a 800 pound barrel rolling over his legs during service. July 2020 Hearing Transcript at 5. The Board concludes that the Veteran has a current disability that is related to his service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). A June 2017 VA examination shows the Veteran has current diagnoses of status post right knee meniscectomy and status post left knee replacement. During service, the Veteran was treated for a left leg injury in August 1975 after an 800 pound barrel rolled over his leg. Thus, the question becomes whether the current disabilities are related to service. On this question there are probative opinions in favor of and against the claims. The evidence against the claim includes the December 2014 and June 2017 VA examiners’ opinions. The 2014 examiner’s rationale was that the initial knee problems were attributed to acute injuries in 2002 before his initial surgeries. The 2017 examiner’s rationale was that clinical notes showed a right knee injury in October 2002 and a left knee injury also in 2002; and, the Veteran reported that at discharge, he was able to walk three miles, lift/carry 80 pounds, and climb ten flights of stairs, which suggested his left knee condition was completely independent of service. The evidence in favor of the claim includes the private September 2018 opinion relating the Veteran's knee disabilities to the barrel injury during service. The opinion was based on review of the records, consultation with the Veteran regarding his in-service injury, and physically examining the Veteran. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current status post right knee meniscectomy and status post left knee replacement are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for status post right knee meniscectomy and status post left knee replacement is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to service connection for a left shoulder disorder The Veteran contends that he has a left shoulder disorder due to overuse while lifting heavy equipment and running a jackhammer during service. June 2017 VA examination. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of status post bicep/labrum tear, and evidence shows that he used heavy equipment and ran a jackhammer during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of status post bicep/labrum tear began during service or is otherwise related to an in-service injury, event, or disease. Private treatment records show the Veteran was not diagnosed with a left shoulder tear until 2010, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of left shoulder pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of bicep/labrum tear because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the June 2017 VA examiner opined that the Veteran’s left shoulder disorder is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that medical records contained a clinical note in February 2010 reporting of an injury to left shoulder since 2009 from lifting with recommendation for surgery. There was no clinical note of shoulder issues during active service that suggested current left shoulder condition is due to service. The examiner’s 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 left shoulder disorder is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the June 2017 VA examiner’s opinion. 7. Entitlement to service connection for a cervical spine disorder The Veteran contends that he has a cervical spine disorder due to a 800 pound barrel rolling up his back during service. July 2020 Hearing Transcript at 5. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). During the appeal, the Veteran was diagnosed with degenerative disease as evidenced by a December 2014 VA examination. Degenerative disease (arthritis) is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. X-rays in March 1984 showed no abnormalities of the cervical spine. Private treatment records show the Veteran was not diagnosed with disc degeneration until 2008, decades after his separation from service, and decades outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of neck pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative disease, as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Indeed, arthritis is a disability established by X-ray findings. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Service connection for degenerative changes may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s cervical spine disorder and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303. The December 2014 VA examiner opined that the Veteran’s degenerative disease is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that the Veteran was recorded to have neck strain after a football injury in September 1980, but had no time lost, and did regular duty until discharge in December 1980. The Veteran did not recall injury, event or evaluation of neck until around 2008. There was no record of neck problems until MRI in 2008 showed degenerative changes. Further, the June 2017 VA examiner also opined that the Veteran's cervical spine disorder is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that medical records contained a clinical note in 2008 of neck pain without trauma, leading to cervical spine surgery. There were negative X-rays of cervical spine in 1980, which suggested that his current neck condition is not due to service, but from his work as a contractor post service. The collective opinions are probative, because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. While the Veteran believes his cervical spine disorder is related to an in-service injury, event, or disease, including having a barrel roll over him, he is not competent to provide a nexus opinion in this case, as he does not have the training or credentials to provide such an opinion. Jandreau, 492 F.3d at 1377 n.4. This issue is also medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Id. Consequently, the Board gives more probative weight to the competent medical evidence. 8. Entitlement to service connection for a lumbar spine disorder The Veteran contends that he has a lumbar spine disorder due to a 800 pound barrel rolling up his back during service. July 2020 Hearing Transcript at 5. The Board concludes that the Veteran has a current disability that is related to his service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). A June 2017 VA examination shows the Veteran has current a diagnosis of thoracolumbar spondylolisthesis and degenerative disc disease. During service, the Veteran was treated for a left leg injury in August 1975 after an 800 pound barrel rolled over his leg. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes the December 2014 and June 2017 VA examiners’ opinions. The 2014 examiner’s rationale was that the Veteran had a history of back pain before service, and there were no service treatment records of significant lumbosacral injury or new lumbosacral condition. They noted that the Veteran was diagnosed with degenerative changes 28 years after service. The 2017 examiner’s rationale was the Veteran reported that at discharge in December 1980, he could walk three miles, lift and carry 80 pounds, and climb 10 flights of stairs. X-rays were negative in 1974 and 1984. In 2008, the Veteran had surgery, which suggested his current back condition was not related to some isolated incident in 1976 with no recurrence of back pain or limitations since injury, but occurred from his work as a contractor after service. The evidence in favor of the claim includes the private September 2018 opinion relating the Veteran’s lumbar spine disability to the barrel injury during service. The opinion was based on review of the records, consultation with the Veteran regarding his in-service injury, and physically examining the Veteran. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current thoracolumbar spondylolisthesis and degenerative disc disease is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for thoracolumbar spondylolisthesis and degenerative disc disease is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 9. Entitlement to service connection for sleep apnea The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. Id. In the present case, the Veteran has withdrawn the claim of service connection for sleep apnea and, hence, there remain no allegations of errors of fact or law for appellate consideration of this issue. The withdrawal was made at the July 2020 hearing, and was (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the appeal of the claim for service connection for sleep apnea, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for restless leg syndrome is remanded. The Board cannot make a fully-informed decision on the issue of service connection for restless leg syndrome because no VA examiner has opined whether it is secondary to the now service-connected bilateral carpal tunnel syndrome. The private September 2018 opinion shows that secondary causes of restless leg syndrome include peripheral neuropathy such as carpal tunnel syndrome. No rationale was provided; remand for a VA opinion addressing secondary service connection is necessary. 2. Entitlement to service connection for sinusitis is remanded. 3. Entitlement to service connection for rhinitis is remanded. The Board cannot make a fully-informed decision on the issues of service connection for sinusitis and rhinitis because no VA examiner has provided an opinion addressing the Veteran's hearing testimony of ongoing symptoms since service. A June 2017 VA examiner provided a negative nexus opinion; the rationale included no recurrence of rhinitis since a singular instance in March 1977. Remand for a VA opinion addressing the Veteran's testimony of ongoing symptoms since service is necessary. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the June 2017 VA central nervous system and neuromuscular diseases examiner (or, if unavailable, from a medical professional with appropriate expertise) to determine the etiology of the diagnosed restless leg syndrome. The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that the diagnosed restless leg syndrome is caused or aggravated by the now service-connected bilateral carpal tunnel syndrome. (If restless leg syndrome is found to have been aggravated by the service-connected bilateral carpal tunnel syndrome, the examiner should quantify the approximate degree of aggravation.) The examiner should consider the private September 2018 medical opinion that secondary causes of restless leg syndrome include peripheral neuropathy such as carpal tunnel syndrome. A complete rationale should be given for all opinions and conclusions expressed. 2. Obtain an addendum medical opinion from the June 2017 VA sinusitis/rhinitis and other conditions of the nose, throat, larynx and pharynx examiner (or, if unavailable, from a medical professional with appropriate expertise) to determine the etiology of the diagnosed chronic sinusitis and allergic rhinitis. The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that the diagnosed chronic sinusitis and allergic rhinitis had their onset in or as due to service. The examiner should consider the Veteran’s July 2020 testimony regarding ongoing sinusitis and rhinitis symptoms since service. A complete rationale should be given for all opinions and conclusions expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Barstow, 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.