Citation Nr: 21068096 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-28 341 DATE: November 9, 2021 ORDER Entitlement to service connection for a bilateral bicep condition to include tendonitis, and to include as secondary to service-connected right shoulder disorder, is denied. REMANDED Entitlement to service connection for anemia is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected cholecystectomy residuals, is remanded. FINDING OF FACT The Veteran's bilateral bicep strain did not manifest in service, and is not etiologically related to service or to her service-connected disorders. CONCLUSION OF LAW The criteria for service connection for a bilateral bicep condition to include tendonitis, and to include as secondary to service-connected right shoulder disorder, have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1981 to August 1992, and from January 2003 to May 2004. The Board notes that the Veteran's representative filed an August 2021 brief that characterized the Veteran's claim of entitlement to service connection for a bilateral bicep disorder as including a claim for carpal tunnel syndrome. The Board further notes that the Agency of Original Jurisdiction (AOJ) has previously declined to grant entitlement to service connection for numbness of the right and left fingers, a right elbow condition, a left elbow condition, and a right wrist condition, and declined to reopen these claims on the basis of no new and material evidence has been submitted. See April 2007 and March 2017 Rating Decisions. Claims that are based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims for new and material evidence purposes. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (noting that a newly diagnosed psychiatric disorder (e.g., PTSD, even if medically related to a previously diagnosed disorder (such as depressive neurosis), is not the same for jurisdictional purposes when it has not previously been considered). Therefore, the Board disagrees with the Veteran's representative's characterization and determines that the claim for a bilateral bicep disorder constitutes a new and distinct claim from carpal tunnel syndrome and related symptoms. In April 2020, the Board remanded the claims at issue and the claim of service connection for a bilateral foot disorder for further adjudication. In an October 2020 rating decision, the AOJ granted entitlement to service connection for a bilateral foot disorder. Therefore, that issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for a bilateral bicep condition to include tendonitis, and to include as secondary to service-connected right shoulder disorder Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an 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, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service-connected disorder that is aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). Compensation may be provided for the degree of disability over and above the degree of disability existing prior to aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). The Veteran has raised the issue of whether any diagnosed bilateral bicep disorder is etiologically related to her service-connected right shoulder disorder. See October 2019 Hearing Testimony. During the course of the appeal, VA treatment records indicate "possible" bicep tendonitis. See, e.g., January 2020 and July 2015 VA Treatment Records. In June 2020, a VA examiner reviewed the Veteran's claims file and determined the Veteran's bilateral bicep disorder is less likely than not related to service. The examiner noted that VA treatment records reflected possible tendonitis, but determined that the Veteran did not have a bicep disorder based on an October 2007 MRI reflecting a normal bicep. During a December 2020 VA examination, the examiner diagnosed the Veteran with left and right bicep strain only after physical examination and review of the claims folder. The examiner explained as follows: (a) At any time during the course of the appeal, does the Veteran have any diagnosed bilateral bicep disorder, to include tendonitis? ANSWER: YES, THE VETERAN'S CURRENT RIGHT AND LEFT BICEP STRAIN (DIAGNOSED TODAY) IS ACUTE, SELF-LIMITING. AND PORTENDS TO NO CHRONIC SEQUELAE. REVIEW OF THE MEDICAL RECORD REVEALS NO OTHER CHRONIC BICEPS CONDITIONS/DIAGNOSES. AFTER REVIEWING VBMS AND THE STRs AND AFTER REVIEWING CPRS AND JLV MEDICAL RECORD AND AFTER CONDUCTING TODAY'S C&P EXAM, THE VETERAN DOES NOT HAVE A CURRENT DIAGNOSIS OF BICEPS TENDONITIS DURING THE APPEAL PERIOD. FOR EXAMPLE, THE 3 PREVIOUS ORTHOPEDIC CONSULT EVALUATIONS ARE SILENT FOR RIGHT OR LEFT BICEPS TENDONITIS (2018, 2012, AND 2011). ALSO, WHILE VA PROGRESS NOTES INDICATE "POSSIBLE BICEPS TENDONITIS," THE VETERAN HAD AN MRI PERFORMED ON 10-15-2007 WHICH REVEALED "The biceps long head tendon is appropriately located within the bicipital groove. The intra-articular portion of the biceps long head tendon is normal. The biceps anchor is not disrupted." THIS INDICATES NO DIAGNOSIS OR EVIDENCE OF BICEPS TENDONITIS. ALSO, AS MENTIONED, THE 3 PREVIOUS ORTHOPEDIC CONSULTATIONS ARE SILENT FOR RIGHT OR LEFT BICEPS TENDONITIS (2018, 2012, AND 2011). AGAIN, THE STRs AND POST SERVICE MEDICAL RECORDS ARE SILENT FOR A DIAGNOSIS OF CHRONIC BICEPS TENDONITIS. The examiner opined that the Veteran's bilateral bicep strain is less likely than not related to her service-connected right shoulder disorder, but was an acute, self-limiting likely due to overuse in the Veteran's case. The examiner determined that the Veteran does not currently have, and did not have, a diagnosis of bilateral bicep tendonitis during the course of the appeal. The Board acknowledges the Veteran's testimony that her bilateral bicep condition is caused or aggravated by her service-connected right shoulder disorder. See October 2019 Hearing Testimony; February 2013 Veteran Statement. As a lay person, however, the Veteran is not competent to provide a diagnosis and/or a medical opinion as to the relationship between any bilateral bicep condition and her service-connected right shoulder disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board has also considered the assessment of "possible" tendonitis in the VA clinic records. This assessment holds some probative value, but the assessment of "possible" reflects an equivocal diagnosis which is substantially outweighed by the VA examiner opinion based upon this record, physical examination, prior orthopedic consultations and MRI examination. The Board has also considered the argument set forth by the Veteran's representative in the August 2021 Written Brief Presentation. The representative cited the internet website for OrthoInfo which defines biceps tendinitis as an inflammation or irritation of the upper biceps tendon (also called the long head of the biceps tendon) which connects the biceps muscle to the bone of the shoulder socket. This website states that, in the early stages, the tendon becomes inflamed and swollen and, as tendinitis develops, the tendon sheath can thicken and the tendon itself often thickens or grows larger. The Veteran's representative has argued that the VA examiner failed to consider "signs and symptoms" of tendonitis in service and that the record demonstrated that "the duration of the tendonitis being beyond transitory." The Board first notes that the representative has requested the Board to grant service connection for "tendonitis, radiculopathy and carpal tunnel." As explained in the INTRODUCTION section, this appeal is limited to the bilateral bicep symptoms as there are prior final denials on claims involving numbness of the right and left fingers, a right elbow condition, a left elbow condition, and a right wrist condition. Otherwise, the Veteran's representative's argument that the record establishes a long-standing tendonitis is not supported by any information from the medical website or any medical source and, thus, holds little probative value. Rather, the information from OrthoInfo discusses that longstanding tendinitis might be manifested by tendon sheath thickening as well as a thickening or largening of the tendon itself. The VA examiner specifically discussed MRI results in 2007 which were normal and did not support a diagnosis of tendonitis. The Board affords significantly greater probative weight to the VA examiner opinion to any information contained on the medical website as it is based on the specific facts of this case. Overall, the December 2020 VA examiner offered an adequate opinion that the Veteran's bilateral bicep strain did not manifest inservice and is not caused or aggravated by her service-connected right shoulder disorder. The examiner also opined as to the nature of the bicep strain, noting it is acute, self-limiting, and likely due to overuse. Based on this description of the specific nature and etiology Veteran's bilateral bicep strain, the Board finds that it is less likely than not directly related to service, or caused or aggravated by her service-connected right shoulder disorder. Entitlement to service connection for a bilateral bicep disorder is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for anemia is remanded. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected cholecystectomy residuals, is remanded. In the April 2020 remand, the Board instructed the AOJ to obtain VA medical opinions concerning the nature and etiology of the Veteran's anemia and hypertension. Specifically, the examiner was instructed to opine as to whether it is at least as likely as not that the Veteran's diagnosed anemia and/or hypertension "is etiologically related to service; is caused or aggravated by the Veteran's service-connected cholecystectomy residuals; or is caused or aggravated by her in-service environmental exposures[.]" After reviewing the claims file, a June 2020 VA examiner opined that the Veteran did not have a current diagnosis of anemia, but the examiner did not address the May 2012 VA examination diagnosing anemia as instructed by the Board's remand. In an October 2020 addendum, the examiner opined that the Veteran's diagnosed anemia is less likely than not related to service, environmental exposures, or service-connected cholecystectomy residuals, noting that the Veteran was diagnosed with iron deficiency anemia in 2007, and active duty service was "15 years prior." However, the Veteran was discharged from her second period of service in May 2004, and the examiner did not address service treatment records or the May 2012 VA examination indicating treatment for anemia during service. As the opinions are contradictory and inadequate for rating purposes, a remand is needed to obtain an additional VA medical opinion. A June 2020 VA examiner determined that the Veteran's hypertension is less likely than not related to service, and also opined that it pre-existed service and was not aggravated by service. However, the examiner did not address the Veteran's two separate periods of active service, as instructed by the Board's remand. In an October 2020 addendum opinion, the examiner determined the Veteran's diagnosis of hypertension in 2010 was "over 15 years" after active duty service. However, as noted above, the Veteran was discharged from her second period of service in May 2004. Additionally, the examiner indicated there were no signs of hypertension during service; however, as noted in the Board's remand, April 1992 service treatment records indicate a blood pressure issue, and August 2004 VA treatment records indicate high blood pressure within three months of discharge. As the opinions are inadequate for rating purposes, a remand is needed to obtain an additional VA medical opinion. Finally, none of the opinions adequately addressed the instructions and specific records indicated in the Board's April 2020 remand. As there has not been substantial compliance with the Board's previous remand directives, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain VA treatment records since August 2021 and associate them with the claims file. 2. Forward the Veteran's claims file to an appropriate examiner for an opinion addressing the nature and etiology of the Veteran's diagnosed anemia and hypertension. The examiner should note that the Veteran had two separate periods of active duty service, from March 1981 to August 1992, and from January 2003 to May 2004, and the examiner must answer the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's diagnosed anemia is etiologically related to service; is caused or aggravated by the Veteran's service-connected cholecystectomy residuals; or is caused or aggravated by her in-service environmental exposures? (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's diagnosed hypertension is etiologically related to service; is caused or aggravated by the Veteran's service-connected cholecystectomy residuals; or is caused or aggravated by her in-service environmental exposures? In answering these questions, the examiner should address the following: the Veteran's contention that her in-service cholelithiasis, and cervical dysplasia, caused or aggravated her anemia and/or hypertension (see, e.g., October 2019 Hearing Testimony; February 2013 Notice of Disagreement; May 1986 Service Treatment Records); undated service environmental health workplace exposure data sheet that lists the Veteran as the patient and notes various environmental exposures and risks at Tallil Air Base in Iraq; May 2011 Veteran statement regarding environmental exposure, including exposure to burn pits, during service; July 1987 service treatment records that appear to indicate the Veteran was instructed to continue using iron supplements; April 1992 separation examination for first period of service indicating no relevant issues, and conflicting April 1992 separation report indicating "high or low blood pressure; August 2004 VA treatment records indicating high blood pressure by history within three months of discharge; May 2012 VA examination diagnosing anemia, noting that the veteran reported it began in the 1980's, and determining it was related to menstrual blood loss; but failing to provide an opinion regarding whether it was related to service; and May 2012 VA examination diagnosing hypertension but failing to provide an opinion regarding whether it was related to service. If an examination is needed, one should be scheduled. A complete medical rationale for all opinions expressed must be provided opinions. 2. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and her representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.