Citation Nr: 21063634 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-47 854 DATE: October 15, 2021 ORDER As new and material evidence has been received sufficient to reopen a claim of service connection for right carpal tunnel syndrome, the petition to reopen is granted. As new and material evidence has been received sufficient to reopen a claim of service connection for left carpal tunnel syndrome, the petition to reopen is granted. As new and material evidence has been received sufficient to reopen a claim of service connection for a right foot disorder, the petition to reopen is granted. As new and material evidence has been received sufficient to reopen a claim of service connection for a left foot disorder, the petition to reopen is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for medial epicondylitis, right elbow is denied. REMANDED Entitlement to an increased rating in excess of 20 percent for degenerative changes, left shoulder is remanded. Entitlement to an increased rating in excess of 20 percent for bursitis and capsulitis, right shoulder is remanded. Entitlement to service connection for anxiety disorder is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. Entitlement to service connection for left carpal tunnel syndrome is remanded. Entitlement to service connection for right foot condition is remanded. Entitlement to service connection for left foot condition is remanded. FINDINGS OF FACT 1. Rating decisions in August 2000, March 2003, and July 2003 denied the Veteran's claim of service connection for right carpal tunnel syndrome. The Veteran did not appeal the July 2003 decision and did not submit new and material evidence within one year. Therefore, this decision is final. 2. Rating decisions in August 2000, March 2003, and July 2003 denied the Veteran's claim of service connection for left carpal tunnel syndrome. The Veteran did not appeal the July 2003 decision and did not submit new and material evidence within one year. Therefore, this decision is final. 3. Rating decisions in August 2000, March 2003, and July 2003 denied the Veteran's claim of service connection for a right foot disorder. The Veteran did not appeal the July 2003 decision and did not submit new and material evidence within one year. Therefore, this decision is final. 4. Rating decisions in August 2000, March 2003, and July 2003 denied the Veteran's claim of service connection for a left foot disorder. The Veteran did not appeal the July 2003 decision and did not submit new and material evidence within one year. Therefore, this decision is final. 5. The evidence received since the final July 2003 rating decision is new and material and relates to unestablished facts necessary to substantiate the Veteran's claim of service connection for right carpal tunnel syndrome. 6. The evidence received since the final July 2003 rating decision is new and material and relates to unestablished facts necessary to substantiate the Veteran's claim of service connection for left carpal tunnel syndrome. 7. The evidence received since the final July 2003 rating decision is new and material and relates to unestablished facts necessary to substantiate the Veteran's claim of service connection for a right foot disorder. 8. The evidence received since the final July 2003 rating decision is new and material and relates to unestablished facts necessary to substantiate the Veteran's claim of service connection for a left foot disorder. 9. The Veteran does not have a diagnosis of PTSD, nor does the record show evidence or verification of PTSD stressors. 10. The Veteran does not have a right elbow disorder that was incurred during or as a result of service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the finally denied claim of entitlement to service connection for right carpal tunnel syndrome and the petition to reopen is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the finally denied claim of entitlement to service connection for left carpal tunnel syndrome and the petition to reopen is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the finally denied claim of entitlement to service connection for a right foot disorder and the petition to reopen is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. New and material evidence has been received to reopen the finally denied claim of entitlement to service connection for a left foot disorder and the petition to reopen is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for medial epicondylitis, right elbow have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1981 to January 2000. New and Material Evidence 1. Whether new and material evidence has been received sufficient to reopen a claim of service connection for right carpal tunnel syndrome 2. Whether new and material evidence has been received sufficient to reopen a claim of service connection for left carpal tunnel syndrome 3. Whether new and material evidence has been received sufficient to reopen a claim of service connection for right foot disorder 4. Whether new and material evidence has been received sufficient to reopen a claim of service connection for left foot disorder A final rating decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, 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. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Rating decisions in August 2000, March 2003, and July 2003 denied the Veteran's claims of service connection for right and left carpal tunnel syndrome and right and left foot disorders. The last denial was due to no nexus. The Veteran did not appeal the July 2003 decision and did not submit new and material evidence within one year. No new evidence was associated with the file within one year. 38 C.F.R. § 3.156(b) and (c) are not for application. The July 2003 decision is final. In April 2012, the Veteran filed new claims of compensation for service connection for bilateral carpal tunnel syndrome and bilateral foot disorders. Since the July 2003 rating decision, the new evidence consists of the Veteran's statements regarding his current disabilities and ongoing symptoms, including notations of active problem of carpal tunnel in June 2015 and metatarsalgia, claw foot, and foot pain in 2018. After having carefully considered the matter, the Board finds that this evidence, taken as true, tends to support the Veteran's claims, the Board finds it is material to the Veteran's claims and it raises a reasonable possibility of substantiating the claims of service connection. Therefore, his petition to reopen claims of service connection for bilateral carpal tunnel syndrome and bilateral foot disorders are granted. 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, 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). 5. Entitlement to service connection for PTSD Service connection for PTSD generally requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). Pursuant to 38 C.F.R. § 4.125 (a), all applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, must establish the existence of a PTSD diagnosis made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-V). See 79 Fed. Reg. 45093 (Aug. 4, 2014). The Veteran contends that service connection for PTSD is warranted. He is in receipt of service connection for major depressive disorder due to service. Neither the service treatment records, nor the post-service treatment records show a diagnosis of PTSD. Periodic PTSD screenings were negative. In an August 2013 administrative decision, the RO noted that the Veteran was provided with forms necessary to provide evidence of in-service stressors and did not provide any evidence in support of his claim. Furthermore, the record does not show any objective or lay evidence of stressors to support his claim. As there is no evidence of an in-service stressor or a current disorder, the preponderance of the evidence is against the Veteran's claim of service connection for PTSD, and it is denied. 6. Entitlement to service connection for medial epicondylitis, right elbow Service treatment records show no complaints, diagnosis, or treatment for a right elbow disorder. Post-service treatment records from the VA Medical Center show the Veteran complained of right elbow pain for several years in June of 2012. He reported that his work as a mechanic seemed to exacerbate the pain. An examination was unremarkable, but he was diagnosed with medial epicondylitis. An X-ray from 2014 was normal. In July 2016, he stated he had golfer's elbow for 20 years. He was referred to acupuncture. Upon review of the record, the Board finds that service connection is not warranted. There is no in-service event to which his right elbow pain is related. There is not objective medical evidence or lay evidence in support of an etiology between his elbow disorder and service. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran and probative value of the evidence of record in its whole. See Washington v. Nicholson, 19 Vet. App. 362 (2005), 38 C.F.R. § 3.159(a)(2) (2021) (Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). While the Veteran is competent to report elbow problems, the Board does not find the record shows an overall inconsistency in the report of elbow problems over the years despite multiple opportunities to report it and the report of other medical problems in service. As is no evidence of an event, injury or disease in service or an indication that the current disabilities may be related to service. An examination or opinion is not necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The preponderance of the evidence is against the claim and service connection is denied. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 20 percent for degenerative changes, left shoulder 2. Entitlement to an increased rating in excess of 20 percent for bursitis and capsulitis, right shoulder Remand is necessary for an adequate VA examination. Throughout the relevant rating period, the Veteran's service-connected left and right shoulder disabilities have been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, based on limitation of motion of the arm. The Veteran filed claims of service connection for his bilateral shoulder disorders in April 2012. An August 2013 rating decision granted bilateral 10 percent ratings, based on a March 2013 x-ray showing degenerative changes and the Veteran's subjective complaints of pain. The Veteran was afforded a VA examination in October 2016. The examiner noted diagnoses of bilateral glenohumeral joint osteoarthritis and acromioclavicular joint osteoarthritis and bursitis and capsulitis of the right shoulder. The Veteran reported pain and limitation of motion. He also reported flare ups twice weekly. Functional loss due to his shoulder disorders limited his ability to do moderate to heavy lifting, pushing or pulling, and repetitive overhead work. Range of motion testing of his shoulders showed flexion to 110 degrees bilaterally; abduction to 100 degrees on the right and 90 degrees on the left; external rotation to 80 degrees on the right and 75 degrees on the left; and internal rotation to 85 degrees, bilaterally. The Veteran was able to perform repetitive-use testing with no additional limitation. Functional loss was due to pain on movement, weakened movement, excess fatiguability, incoordination, and less movement than normal. He had localized tenderness and pain on palpation. Muscle strength testing was normal and there was no ankylosis. Regarding rotator cuff conditions, the Veteran's right and left shoulders were positive for Hawkins' impingement test and empty-can test, but negative for external rotation test and lift-off subscapularis tests. There was no instability or dislocation and no clavicle, scapula, acromioclavicular joint, or sternoclavicular joint conditions suspected. There was no loss of head, nonunion, fibrous union, or malunion of the humerus. Regarding impact on employment, the examiner opined that the Veteran should avoid moderate to heavy lifting, pushing or pulling, and repetitive overhead work. The Board finds that an updated VA examination is necessary prior to adjudication. The examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain active and passive or non-weight bearing range of motion findings. Also, although the Veteran endorsed flare ups, the examiner did not provide an adequate opinion regarding the effect of those flare ups on range of motion or function. Sharp v. Shulkin, 29 Vet. App. 26 (2017). An additional examination is warranted prior to further adjudication by the Board. 3. Entitlement to service connection for anxiety disorder is remanded. Remand is necessary to obtain an opinion regarding the Veteran's acquired psychiatric disorders. The Veteran is in receipt of service connection for major depressive disorder. The July 2016 VA examination report noted that the Veteran had symptoms of anxiety. A clarifying opinion is necessary to determine if the Veteran has a separate diagnosis of an anxiety disorder as a result of service or as secondary to his service-connected major depressive disorder. 4. Entitlement to service connection for right carpal tunnel syndrome is remanded. 5. Entitlement to service connection for left carpal tunnel syndrome is remanded. Remand is necessary for a VA examination. The Veteran's service treatment records showed that he complained of occasional numbness in his hands at separation and received a diagnosis of carpal tunnel syndrome, but no EMG studies or neurologic findings were found to support the diagnosis. Post service treatment records show a notation of carpal tunnel syndrome in the Veteran's active problem list. To date, the Veteran has not been afforded a VA examination to determine the nature and etiology of any carpal tunnel syndrome. Therefore, remand is warranted prior to adjudication. 6. Entitlement to service connection for right foot condition is remanded. 7. Entitlement to service connection for left foot condition is remanded. Remand is necessary to afford the Veteran a VA examination. Service treatment records showed a hammertoe deformity of the right second toe in December of 1996. Post service treatment records showed diagnoses of metatarsalgia, hammer toe and foot pain in the Veteran's active problem list. To date, the Veteran has not been afforded a VA examination to assess the nature and etiology of any foot disorder. Therefore, remand is warranted prior to adjudication. The matters are REMANDED for the following action: 1. Obtain all outstanding and relevant treatment records and associate them with the claims file. The Veteran's assistance in identifying and obtaining pertinent records should be requested as needed. All attempts to obtain records should be set forth in the claims folder. 2. Schedule the Veteran for an examination of the current severity of his right and left shoulder disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a.) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion; (b.) The examination must include testing results of joint pain on both active and passive motion, and in weight-bearing and non-weight bearing. The examiner should assess where pain begins on the Veteran's initial range of motion and upon repetitive testing. If such testing cannot be completed, an explanation should be provided as to why this is so, to include whether the inability to test reflects additional functional loss not otherwise documented on the examination. (c.) The examiner must also estimate any functional loss in terms of additional degrees of limited motion of the left shoulder experienced during flare-ups and repetitive use over time. If the examiner cannot provide this estimate without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 3. Schedule the Veteran for a VA examination by an appropriate clinician to assess the nature of his acquired psychiatric disorder. The examiner must review the claims file and indicate in the report that it was reviewed. All indicated tests must be performed. The examiner must provide all relevant diagnoses, including whether the Veteran has a separate diagnosis of an anxiety disorder that is related to service or secondary to his service-connected major depressive disorder. 4. Schedule the Veteran for VA examination(s) with the appropriate clinicians to determine the nature and etiology of any carpal tunnel syndrome or foot disorders. The examiner(s) must review the claims file and indicate in the report that it was reviewed. All indicated tests must be performed. (Continued on the next page) Examiners should identify the presence of the various disabilities and confirm the existence of the claimed disorders. Thereafter, opinions as to etiology should be set out to include whether it is as likely as not that any of the claimed disorders was due to service, or is related to a service connected disability. All medical rationale should be clearly set out. 5. A complete rationale based on a review of the evidence and the application of medical principles must be provided in support of all opinions. E. Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.