Citation Nr: 21070389 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 12-04 121 DATE: November 23, 2021 ORDER Entitlement to service connection for right upper extremity peripheral neuropathy is dismissed. Entitlement to service connection for a sleep disability is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a disability rating in excess of 20 percent for a right median nerve disability is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. Entitlement to service connection for left carpal tunnel syndrome is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 16, 2009 is remanded. FINDINGS OF FACT 1. A March 2021 Board of Veterans' Appeals (Board) Veteran's decision denied the Veteran's claim for entitlement to service connection for right carpal tunnel syndrome and did not remand a claim for entitlement to service connection for right upper extremity peripheral neuropathy. 2. The Veteran does not have a diagnosis for a sleep disability. CONCLUSIONS OF LAW 1. The claim for service connection for right upper extremity peripheral neuropathy has been granted and an appeal of that issue is dismissed. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for entitlement to service connection for a sleep disability are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to May 1971 and from September 1990 to April 1991. These matters come before the Board on appeal from rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). These matters were last remanded by the Board in March 2021 and are back before the Board for consideration. 1. Entitlement to service connection for right upper extremity peripheral neuropathy is dismissed. The Board concludes that the Veteran has already been granted service connection for right upper extremity peripheral neuropathy, and that the appeal of this issue should be dismissed. The Veteran submitted a claim for entitlement to service connection for right peripheral neuropathy in April 2009 and was granted service connection for a right median nerve disability in a June 2009 rating decision. The Veteran has appealed his rating for that disability, and that claim is currently before the Board. In March 2021, the Board issued a decision denying entitlement to service connection for right carpal tunnel syndrome and remanding the issues of entitlement to service connection for left upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy. The March 2021 Board decision did not address a claim for entitlement to service connection for right upper extremity peripheral neuropathy but denied a claim for entitlement to service connection for right carpal tunnel syndrome. The Veteran did not appeal the March 2021 Board decision denying the claim of entitlement to service connection for right carpal tunnel syndrome. The Veteran did not file a motion for reconsideration or appeal of the March 2021 Board decision, so that decision is final. 38 C.F.R. § 20.1100. In July 2021, the RO issued a Supplemental Statement of the Case (SSOC) erroneously indicating that the Board remanded the issue of entitlement to service connection for right upper extremity peripheral neuropathy in its March 2021 decision. The RO returned the issue to the Board with the remaining issues on appeal. The Board finds that the claim for entitlement to service connection for right upper extremity peripheral neuropathy should be dismissed as moot as the Veteran already filed a claim for service connection for right upper extremity peripheral neuropathy which was granted in the June 2009 rating decision. Therefore, there is no case or controversy for the Board to adjudicate with respect to the original claim of entitlement to service connection for right upper extremity peripheral neuropathy. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); see also 38 U.S.C. § 7104 (2018); 38 C.F.R. § 20.101. Furthermore, to the extent that the RO considered the Veteran's claim for entitlement to service connection for right carpal tunnel syndrome to be a claim for right upper extremity peripheral neuropathy as well, that issue was denied in the March 2021 decision which is now final. In reaching this decision, the Board has considered the implicit denial doctrine. If VA fails to adjudicate a claim, whether formal or informal, and fails to notify the claimant of the denial, that claim remains pending until it is finally adjudicated. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009). For a claim to be deemed denied, there must be a recognition of the substance of the claim in a decision from which the claimant could reasonably deduce that the claim had been adjudicated, or an explicit subsequent adjudication of a claim for the same disability. Ingram v. Nicholson, 21 Vet. App. 232, 255 (2007). Here, while the SSOC identifies a claim for entitlement to service connection for right upper extremity peripheral neuropathy, the SSOC indicated that the claim was remanded by the Board in the March 2021 decision, which is not correct. The Board finds that the implicit denial doctrine is not applicable because the Veteran could not reasonably deduce that the claim had been adjudicated by the RO. The Veteran has already been awarded service connection for a right median nerve disability and is actively pursuing an appeal of his disability rating for that issue, and the claim was not addressed in the Board's September 2014, September 2015, or March 2021 Board decisions. The Board therefore concludes that dismissal is the appropriate remedy as the Veteran has already been award service connection for a right median nerve disability, and the claim for entitlement to service connection for right carpal tunnel syndrome was denied in a March 2021 Board decision which is final. 38 U.S.C. § 7105. 2. Entitlement to service connection for a sleep disability is denied. The Veteran claims to have a sleep disability which is related to active duty. In a November 2010 statement, the Veteran also contended that this disability is related to his service-connected diabetes mellitus. 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 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. Here, the Board concludes that the Veteran does not have a diagnosis for sleep apnea or a sleep disability. As the Veteran does not currently have a diagnosis for a sleep disability, service connection is not available. Shedden. The Veteran's VA treatment records indicate that he was prescribed diphenhydramine for sleep in 2014 and reported that pain interfered with his seep. In January 2015 he reported occasional sleep disturbances and nightmares related to wartime experiences. Other VA treatment records show occasional reports of sleep disturbances in his mental health treatment notes, although in June 2015, October 2015, March 2017, and November 2019, the Veteran reported that his sleep was better with the use of psychotropic medications. In a December 2017 VA examination for his service-connected psychiatric disability, the Veteran reported sleep disturbances and in the June 2021 VA examination he reported that that he is alert all the time and awake till 1 or 2 in the morning. He also reported that, with his psychiatric medication, he can sleep 8 to 9 hours every day. The Veteran underwent a VA examination in July 2021 for sleep disorders. The VA examiner opined that the Veteran did not have a sleep disorder and that his reported sleep symptoms related to his psychiatric disability, which is rated as 50 percent disabling. The Veteran has not provided evidence of a diagnosis for a sleep disorder and has not reported that he has been diagnosed with a sleep disorder. The Board has considered whether the Veteran's reported symptoms could be considered the functional equivalent of a diagnosed sleep disorder. While the Veteran has repeatedly reported symptoms related to sleep disturbances in his VA treatment records as well as his VA examinations, those symptoms have been attributed to his psychiatric disability. Chronic sleep impairment is specifically enumerated in the rating criteria for psychiatric disabilities and is included in the symptoms listed for a 30 percent disability rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. As the Veteran is rated at 50 percent disabled for his psychiatric disability, and especially since the evidence of record indicates that his sleep symptoms are related to his service-connected psychiatric disability, the Board finds that he is already compensated for these symptoms, and, to assign a separate rating would be impermissible pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In light of the foregoing, the preponderance of the evidence is against the existence of a current sleep disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board concludes that the criteria for service connection have not been met. 38 C.F.R. § 3.03. Accordingly, service connection is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran claims that his hypertension is related to active duty. Certain chronic diseases, such as hypertension, 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). Here, the Veteran reported in an April 2003 VA examination that he was diagnosed with hypertension in 1992 at Melendez hospital in Puerto Rico. The Veteran's most recent period of active military service ended in April 1991 and he served for more than 90 days during that period. Thus, the presumptive service connection is available for this period of service. 38 C.F.R. §§ 3.307(a)(1). Under VA rating criteria, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. A diagnosis must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. As discussed in the March 2021 Board remand, Dr. F.M., a private clinician, wrote a letter in April 1997 stated that the Veteran had a history of hypertension, and in an April 2008 release form, the Veteran reported that he was first diagnosed with hypertension in October 1994 at Melendez Hospital. Additionally, the Veteran's blood pressure at his April 1991 separation examination was 155/100. Given the conflicting reports from the Veteran as to when he was first diagnosed with hypertension, a remand is needed to obtain an addendum opinion regarding when the Veteran's hypertension began. The examiner must address the Veteran's in-service blood pressure readings, as well as his reports that he was diagnosed with hypertension either in 1992 or 1994, and the April 1997 letter from Dr. F.M. indicating that the Veteran has a history of hypertension. 2. Entitlement to a disability rating in excess of 20 percent for a right median nerve disability is remanded. 3. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. 4. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. 5. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. 6. Entitlement to service connection for left carpal tunnel syndrome is remanded. 7. Entitlement to a TDIU prior to June 16, 2009 is remanded. The Veteran claims entitlement to a disability rating in excess of 20 percent for his right median nerve disability. The Veteran also claims entitlement to service connection for peripheral neuropathy of the left upper extremity, left lower extremity, and right lower extremity. An addendum opinion was obtained in March 2021. The March 2021 examiner concluded that there was no clinical or diagnostic evidence of left carpal tunnel syndrome. However, in a July 2021 VA examination, the examiner reported that the Veteran was diagnosed with bilateral carpal tunnel syndrome. The July 2021 examiner also concluded that the Veteran did not have a diagnosis of peripheral neuropathy of the right upper, left upper, or left lower extremities. The examiner noted mild intermittent pain and paresthesias and/or dysesthesias in the right upper extremity which he attributed to the Veteran's right carpal tunnel syndrome. The July 2021 VA examiner noted hypoactive reflexes bilaterally in the biceps, triceps, and brachioradialis and did not explain why those symptoms were not an indication of peripheral neuropathy. Additionally, while the examiner concluded that there was no diagnosis of peripheral neuropathy of the right upper, left upper, or left lower extremities, a February 2021 VA treatment record showed that the Veteran had chronic "phantom limb syndrome" following the amputation of his lower limbs, which was treated with prescription drugs. VA treatment records from September 2015 indicated that the Veteran has "diabetic neuropathies," and a June 2019 VA treatment record shows that the Veteran was treated with medication for "neuropathic pain." The July 2021 VA examiner indicated that the Veteran was treated for "phantom limb syndrome," but did not explain why that symptom is not an indication of peripheral neuropathy. Additionally, the VA examiner did not account for the VA treatment records indicating that the Veteran had "diabetic neuropathies" and was treated for "neuropathic pain," yet did not have a diagnosis for peripheral neuropathy. Therefore, a new VA examination is needed to address the Veteran's VA treatment records and findings on the VA examination of hypoactive reflexes. Additionally, with respect to the disability rating for the Veteran's right median nerve disability, the Veteran is rated at 20 percent disabling for that disability. Under Diagnostic Code 8515, a 20 percent rating corresponds to moderate incomplete paralysis. The Veteran's representative argues that his symptoms more closely approximate severe incomplete paralysis. The July 2021 VA examiner noted that the Veteran's right median nerve was "normal," although he noted mild intermittent pain and paresthesias and/or dysesthesias in the right upper extremity. It is unclear how the Veteran could be service connected for a right median nerve disability when the median nerve has been evaluated as "normal" on the VA examination, and the Veteran is already compensated for moderate incomplete paralysis of the median nerve. Therefore, a new VA examination should be conducted to assess the current severity of the Veteran's right median nerve disability. Regarding the Veteran's claim for entitlement to service connection for left carpal tunnel syndrome, the Veteran underwent a VA examination in March 2021 which indicated that the Veteran did not have a diagnosis for left carpal tunnel syndrome, which is inconsistent with the July 2021 examiner's opinion indicating a diagnosis for bilateral carpal tunnel syndrome. Neither the March 2021 nor the July 2021 examiner offered an opinion regarding the etiology of the Veteran's left carpal tunnel syndrome. Therefore, an addendum opinion should be obtained addressing the etiology of the Veteran's left carpal tunnel syndrome. Finally, the Veteran's claim for entitlement to a TDIU prior to June 16, 2009 should be remanded as it is intertwined with the other claims on appeal. The Veteran also reported during a July 2021 VA examination that he worked for the U.S. Postal Service for 33 years until he retired in 2006. The RO should obtain verification of the Veteran's employment as well as the reason for his retirement, which could be relevant to his claim for entitlement to a TDIU prior to June 16, 2009. The matters are REMANDED for the following action: 1. Obtain an addendum opinion related to the Veteran's hypertension. The examiner must review the claims file. The examiner should opine whether it is at least as likely as not that the Veteran's hypertension either (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion. The examiner must address the Veteran's in-service blood pressure readings, including the April 1991 examination. The examiner must also address the Veteran's reports that he was diagnosed with hypertension either in 1992 or 1994, and the April 1997 letter from Dr. F.M. 2. Schedule the Veteran for a VA examination for peripheral neuropathy. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Identify all extremities affected by diagnosed peripheral neuropathy other than carpal tunnel syndrome. For reach extremity identified, state whether the Veteran's peripheral neuropathy is at least as likely as not proximately due to or aggravated beyond its natural progression by the Veteran's type II diabetes mellitus, bilateral lower extremity amputations, ischemic heart disease/coronary artery disease, left shoulder recurrent dislocation, right median nerve injury, or left arm scar? The examiner must address the Veteran's VA treatment records which indicate that he has "phantom limb syndrome," "diabetic neuropathies," and "neuropathic pains" which are treated with prescription medication. 3. Schedule the Veteran for a VA examination for the Veteran's left carpal tunnel syndrome. For the purposes of providing an opinion in this case, the examiner should address whether the Veteran has had left carpal tunnel syndrome at any time even if the condition has resolved. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's left carpal tunnel syndrome, even if it has resolved, is related to service. The examiner must also opine whether it is at least as likely as not that the Veteran's left carpal tunnel syndrome was proximately due to or aggravated beyond its natural progression by the Veteran's type II diabetes mellitus, bilateral lower extremity amputations, ischemic heart disease/coronary artery disease, left shoulder recurrent dislocation, right median nerve injury, or left arm scar. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right median nerve disability. 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. 5. Take all steps needed to obtain documents from the United States Postal Service regarding the Veteran's prior employment and retirement from the USPS. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, Associate 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.