Citation Nr: 21067337 Decision Date: 11/04/21 Archive Date: 11/03/21 DOCKET NO. 15-24 396 DATE: November 4, 2021 ORDER Entitlement to service connection for a back disorder is denied. REMANDED Entitlement to service connection for a left upper extremity disorder, claimed as carpal tunnel syndrome, is remanded. Entitlement to service connection for a right upper extremity disorder, claimed as right carpal tunnel syndrome, is remanded. Entitlement to service connection for major depressive disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The Veteran does not have a diagnosis of a current back disorder. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to July 1982 and from December 1984 to April 1985. In August 2018, the Veteran testified before the undersigned Veterans Law Judge of the Board at a hearing at the San Juan Regional Office. A copy of the transcript has been associated with the claims file. The Board remanded this claim to the RO in February 2019. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. In order to establish entitlement to service connection for a disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. 1. Low back disorder The Veteran is seeking service connection for a low back disorder that he believes is due to his military service. Specifically, the Veteran stated that he fell in service and injured his back. See August 2018 Board Hearing Transcript. The question for the Board is whether the Veteran has a current back disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. For the reasons discussed below, the Board concludes that the Veteran does not have a currently diagnosed back disorder, and has not had a diagnosis at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). Following service, the available VA treatment records do not include any treatment for back pain or any diagnosed back disorder. In December 2020, the Veteran underwent a VA examination for the claimed disorder. Following a complete review of the claims file, an in-person interview and a physical examination of the Veteran, was accomplished by the examiner, who concluded that the Veteran does not have a diagnosed back condition. On examination, the Veteran denied experiencing flare-ups of the back, pain on motion, limitation of motion, or any functional impairment. See also December 2020 VA Medical Opinion. The Board notes that the Veteran has not submitted any other evidence in support of his claims, to include etiological opinions from other physicians. As such, the only evidence in the claims file is against a finding that the Veteran currently suffers from a diagnosed low back disorder. With respect to this disorder, the Board is cognizant of the holding in Saunders v. Wilkie which states that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, the Veteran does not claim nor do his medical records show that he experiences any functional impairment due to his claimed low back disorder, either due to limitation of motion or pain. As such, the Veteran's claimed low back disorder does not amount to a functional impairment of earning capacity, and Saunders is not applicable in this case. Additionally, to the extent the Veteran believes he currently suffers from the claimed disorder he is not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized medical education pertaining to the musculoskeletal system, as well as the ability to interpret complicated diagnostic medical testing are required in order to render a diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board finds that the Veteran's claim cannot be granted as he has not met the first element of service connection, the requirement of a current diagnosis, for the claimed disorder. As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for this disorder, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b). The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter Accordingly, the claim is denied. REASONS FOR REMAND 1. Right and left upper extremity disorders The Veteran is seeking service connection for disorders pertaining to the right and left upper extremities, claimed as carpal tunnel syndrome, that he believes are due to his military service. The Veteran alternatively argues that his disorders are secondary to his service connected disabilities of residuals of a right wrist fracture and/or right shoulder disability. The December 2020 VA examiner concluded there was no evidence of carpal tunnel syndrome or any other neurological impairments for either the right or left upper extremities. However, the VA examiner did not conduct EMG testing to conclusively determine the presence or absence of any possible neurological disorders. The Board notes that the Veteran testified he only underwent carpal tunnel surgery on the right wrist in 2007, but has continued to suffer from chronic pain and weakness since. See August 2018 Board Hearing Transcript. In fact, VA treatment records show reports of chronic pain and post-surgical treatment, as well as continuing to list carpal tunnel syndrome as a current disorder. See August 2020 VA Treatment Records. As these findings were not addressed by the VA examiner, the Board finds the December 2020 VA examination and opinion are inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Therefore, the Board finds a remand is warranted to schedule the Veteran for a VA examination to conduct the requisite testing to determine the absence or presence of a neurological disorder, and a new etiological opinion. 2. Major depressive disorder The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, that he believes is due to his military service. Alternatively, he argues that his major depressive disorder is secondary to his service connected disabilities of residuals of a right wrist fracture and/or right shoulder disability. The Veteran was examined by VA in December 2020, with an accompanying etiological opinion. The VA examiner confirmed a diagnosis of major depressive disorder but concluded that it was less likely than not due to or the result of his military service. The VA examiner also concluded the major depressive disorder is less likely than not proximately due to or the result of the Veteran's service connected conditions as there is no evidence of aggravation in a prior February 2014 VA examination. Therefore, a link between the diagnosed psychiatric disorder and the service-connected disabilities has not been established. The Board finds the December 2020 VA medical opinion to be inadequate for rating purposes on several bases. First, the VA examiner did not provide a rationale for the unfavorable findings and, instead, stated only a conclusory opinion. See Horn v. Shinseki, 25 Vet. App. 231, 240 (2012) ("an unexplained conclusory opinion is entitled to no weight in a service-connection context."). Second, the VA examiner did not clearly articulate the correct legal standard regarding secondary service connection. Here, the medical opinion touched only briefly on proximate causation and noted aggravation was not a factor. However, there was, again, no explanation provided. Finally, the December 2020 VA opinion is inadequate in light of the holding in light of the recent case of Ward v. Wilkie. In June 2019, the United States Court of Appeals for Veterans Claims (the Court) issued a decision in Ward v. Wilkie, holding that secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence." 31 Vet. App. 233 (2019). The Board finds that the etiology opinion does not comport with the holding of Ward and is inadequate. Thus, a remand is required for an addendum opinion. 3. TDIU The Board notes that any decisions regarding the remanded claims could impact the outcome of the TDIU decision. As such, the TDIU claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination regarding his claimed right and left upper extremity disorders, claimed as carpal tunnel syndrome. The examiner is asked to provide an opinion on the following, with a full rationale: (a.) The examiner is asked to first determine whether the Veteran currently suffers from right and/ or left wrist disorders, claimed as carpal tunnel syndrome. The examiner must consider the Veteran's VA treatment records that note carpal tunnel syndrome as a current disorder. See August 2020 VA Treatment Records. Appropriate clinical testing, to include an EMG, MUST BE CONDUCTED to confirm or exclude a diagnosis of carpal tunnel syndrome, or any other neurological impairment that may be present. (b.) For any diagnosed disorder, the examiner is asked to determine whether it is at least as likely as not due to or the result of the Veteran's military service. (c.) For the right wrist, specifically, the examiner is asked also to provide an opinion as to whether it is at least as likely as not a right wrist disorder (other than residuals of a fracture/ limitation of motion) is due to the service-connected disabilities of the right shoulder and residuals of a right wrist fracture. (d.) the examiner is asked also to provide an opinion as to whether it is at least as likely as not a right wrist disorder (other than residuals of a fracture/ limitation of motion) underwent an incremental increase (aggravated) regardless of permanence by his service-connected disabilities of the right shoulder and residuals of a right wrist fracture. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. 2. Obtain an addendum opinion so as to determine the nature and etiology of the diagnosed major depressive disorder. The Board is not requiring a new examination be scheduled; however, should the AOJ determine an examination is required, appropriate action must be taken. The examiner is asked to provide an opinion on the following, with a FULL RATIONALE: (a.) Whether the Veteran's major depressive disorder is at least as likely as not (a 50 percent or greater probability) related to his active service. (b.) Whether it is at least as likely as not that the major depressive disorder was caused by the service-connected right wrist and/ or right shoulder disabilities, yes or no? (c.) Is it at least as likely as not that the Veteran's major depressive disorder underwent any aggravation (incremental increase in disability, regardless of its permanence), due to the right wrist and/ or right shoulder disabilities, yes or no? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. (Continued on the next page) IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.