Citation Nr: 21067814 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 13-22 118 DATE: November 5, 2021 ORDER Entitlement to service connection for a neurological disability of the right upper extremity is granted. REMANDED Entitlement to service connection for a non-neurological disability of the right foot, to include as secondary to a service-connected disability, is remanded. Entitlement to an initial rating in excess of 50 percent for a psychiatric disability is remanded. Entitlement to a total rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's right upper extremity neurological disability, diagnosed as carpal tunnel syndrome, began during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a neurological disability of the right upper extremity, diagnosed as carpal tunnel syndrome, have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION In an August 2019 decision and remand, the Board noted that the issue of entitlement to TDIU had been raised as part of the Veteran's claim for a higher initial rating for a psychiatric disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, even though the claim for entitlement to TDIU had not previously been adjudicated, the Board found that the issue was on appeal. The Board remanded the claim for entitlement to TDIU with the claim for a higher initial rating to the Agency of Original Jurisdiction (AOJ) for development. In October 2020, the AOJ issued both a rating decision and a supplemental statement of the case, denying entitlement to TDIU. Subsequently, in October 2021, the Veteran, through the representative, filed a decision review request, appealing the denial of the claim for entitlement to TDIU in the October 2020 rating decision. The Veteran specifically requested higher-level review of that decision at the AOJ. As noted in the August 2019 decision and remand, the issue of entitlement to TDIU is considered to be part of the claim for a higher initial rating for a psychiatric disability. Therefore, because the claim for a higher initial rating is in appellate status, the Board has jurisdiction over both that issue and the issue of entitlement to TDIU. Therefore, the request for higher-level review of the denial of entitlement to TDIU is of no effect and the Board will retain jurisdiction under the legacy adjudication system. Entitlement to service connection for a neurological disability of the right upper extremity, to include as secondary to a service-connected disability The Veteran essentially claims that she developed a neurological disability of the right upper extremity, diagnosed as carpal tunnel syndrome, during service. Resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 1137, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). An alternative method of establishing in-service presence and causal relationship to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488 (1997); Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); Hickson v. West, 12 Vet. App. 247 (1999). The theory of continuity of symptomatology can be used only in cases involving g those conditions explicitly recognized as chronic, such as organic diseases of the nervous system, such as carpal tunnel syndrome. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases, including carpal tunnel syndrome, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. That presumption is rebuttable by probative evidence to the contrary. The service medical records contain no notation indicating treatment or diagnosis of any right upper extremity neurological disability. However, in a December 2007 claim for VA benefits, filed approximately nine months after the Veteran's March 2007 separation from her final period of service, the Veteran claimed service connection for carpal tunnel syndrome. In a January 2008 VA medical examination report, the Veteran reported experiencing carpal tunnel syndrome symptomatology in 2002 in service. The Veteran indicated having symptoms of numbness in the first and second digits of the right hand during service. The Veteran indicated that symptoms worsened during driving. The Veteran stated that she experienced a burning sensation in the hand, but denied experiencing actual pain. After testing, the examiner noted that a Tinel's test was positive. The examiner diagnosed bilateral tunnel syndrome. The examiner did not provide any opinion as to the etiology of the disability, because the examiner did not have access to the claims file. At a September 2018 Board videoconference hearing, the Veteran reported experiencing constant cramping in the right hand during service while performing service duties as an administrative worker. The Veteran indicated that the symptoms were diagnosed as being associated with carpal tunnel syndrome. In an April 2020 VA medical examination report, a VA examiner diagnosed right extremity carpal tunnel syndrome. After reviewing the record, the examiner opined that the disability was less likely than not related to service. In explaining the opinion, the examiner noted that the Veteran worked as an administrative worker during service. The examiner indicated that work would include repeatedly typing and filing written reports. The examiner indicated that carpal tunnel syndrome could be caused by duties such as those performed by the Veteran during service. However, the examiner stated that a finding of service connection could not be made, because the service medical records did not show a complaint of right upper extremity radiculopathy either during service or during a presumptive period. A layperson is competent to report on the onset and recurrence of symptoms as the claimant has personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). Although the service medical records show no notation indicating treatment for the disability, the Veteran has provided credible lay evidence, indicating in-service onset of her diagnosed right carpal tunnel symptomatology. The record also indicates that, although the Veteran was not diagnosed with the disability during service, she was diagnosed with the disability sooner than one year following her discharge from service, within the presumptive period used to establish service connection for chronic disabilities. 38 C.F.R. § 3.309(a). In an April 2020 VA medical examination report, a VA examiner opined that the diagnosed carpal tunnel syndrome was not at least as likely as not related to service, because the service medical records did not contain any notation suggesting onset of symptoms during service or within the one-year presumptive period following service. In so doing, the examiner did not discuss the Veteran's lay reports of in-service carpal tunnel syndrome symptomatology and the January 2008 VA medical examination report, in which the VA examiner diagnosed carpal tunnel syndrome approximately 10 months after the Veteran's separation from service. Because the April 2020 VA examiner did not discuss the evidence in favor of the Veteran's claim in writing the opinion regarding the etiology of the claimed disability, the Board finds that the April 2020 VA examiner's opinion has little probative value in this matter. Prejean v. West, 13 Vet. 444 (2000). The Board finds that right carpal tunnel syndrome was diagnosed within one year following separation from service, based on credible reports of symptomatology during and after service. The Veteran claimed service connection for the disability within one year following separation from service and it was diagnosed within one year following separation from service. Therefore, the Board finds that the Veteran's lay reports of onset of carpal tunnel syndrome symptomatology during service is the most probative evidence of record regarding the etiology of the disability, and the neurologic disability was diagnosed within one year following separation from service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the disability began during service and service connection for right carpal tunnel syndrome is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a non-neurological disability of the right foot, to include as secondary to a service-connected disability, is remanded. The Veteran is service connected for several disabilities, to include both bilateral lower extremity radiculopathy and residuals of a left foot fracture. In an April 2020 VA medical examination report, a VA examiner opined that the Veteran's right foot disabilities, diagnosed as metatarsalgia, onychomycosis, and plantar fasciitis, were not at least as likely as not caused by a service-connected disability. In explaining this opinion, the examiner stated that the Veteran's service-connected disabilities would not likely have caused the current right foot disability, because of a negative impression from a right foot radiology report and a lack of a chronic right foot disability since service. The Board finds that the examiner did not indicate how either the lack of a positive right foot X-ray finding or the lack of continuity of right foot symptoms since service would relate to the question of whether the service-connected disabilities had caused the Veteran's currently diagnosed right foot disabilities. An opinion is also needed as to whether service-connected disabilities have aggravated any nonservice-connected right foot disability. Remand is necessary to schedule an additional examination. 2. Entitlement to an initial rating in excess of 50 percent for a psychiatric disability is remanded. Since the Veteran's most recent VA examination, the Veteran has submitted evidence suggesting a worsening of psychiatric disability symptomatology. Remand is necessary to schedule an additional examination. 3. Entitlement to TDIU is remanded. Because a decision on the remanded issues of entitlement to service connection for a right foot disability and a highter initial rating for a psychaitric disability could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Remand of the claim for entitlement to TDIU is required. The matters of entitlement to service connection for a right foot disability, entitlement to a higher initial rating for a psychiatric disability, and entitlement to TDIU are REMANDED for the following action: 1. Schedule the Veteran for an examination by an orthopedist or podiatrist who has not previously examined the Veteran to determine the nature and etiology of any non-neurological disability of the right foot. In reviewing the record, the examiner should note the service medical records, the post-service treatment records, and the lay evidence, to include the Veteran's lay statements. A complete rationale should be provided for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After an examination, an interview with the Veteran, and a review of the claims file, the examiner is asked to also provide the following: (a.) Diagnose all right foot disabilities. (b.) Opine whether it is least as likely as not (50 percent or greater probability) that any right foot disability diagnosed during the pendency of the appeal, dating to November 2011, is related to service or any incident of service, to include in-service treatment for right foot pain and swelling. (c.) If right foot arthritis verified by X-rays is diagnosed, opine whether the disability at least as likely as not (1) began during active service, (2) manifested within one year after the Veteran's March 2007 separation from service, or (3) was noted during service with continuity of the same symptomatology since service. (d.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that any right foot disability diagnosed during the pendency of the appeal is proximately due to the service-connected disabilities (psychiatric disability, low back disability, hypertension, eczema, radiculopathy of the lower extremities, left foot disability, sinusitis, TB conversion with INH treatment, carpal tunnel syndrome, and migraines). (e.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that any right foot disability diagnosed during the pendency of the appeal has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities (psychiatric disability, low back disability, hypertension, eczema, radiculopathy of the lower extremities, left foot disability, sinusitis, TB conversion with INH treatment, carpal tunnel syndrome, and migraines). 2. Schedule the Veteran for an examination by a VA psychiatrist or psychologist who has not previously examined the Veteran to determine the current severity of a service-connected psychiatric disability. The examiner should provide a full description of the disability. The examiner should opine regarding the levels of occupational and social impairment caused by the psychiatric disability, and should describe the symptoms, to include the frequency and severity of symptoms, that results in those levels of impairment. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of all of the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 3. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.M. Gillett 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.