Citation Nr: 21071501 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-28 339 DATE: November 30, 2021 ORDER 1. Entitlement to service connection for residuals of a left elbow fracture, to include as secondary to a service-connected heart disability, is denied. 2. Entitlement to service connection for residuals of a left leg fracture, to include as secondary to a service-connected heart disability, is denied. REMANDED 3. Entitlement to service connection for left arm nerve damage disability, to include as secondary to a service-connected heart disability, is remanded. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to April 19, 2016, is remanded. FINDINGS OF FACT 1. The Veteran's claimed residuals of a left elbow fracture disability was not manifested during her service; and the preponderance of the evidence is against a finding any such disability is etiologically related to her service or was caused or aggravated by her service-connected heart disability. 2. The Veteran's claimed residuals of a left leg fracture disability was not manifested during her service; and the preponderance of the evidence is against a finding that any such disability is etiologically related to her service or was caused or aggravated by her service-connected heart disability. CONCLUSIONS OF LAW 1. Service connection for residuals of a left elbow fracture is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. Service connection for residuals of a left leg fracture is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1988 to July 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision, which assigned a for the Veteran's heart disability temporary total (schedular post-reimplantation of pacemaker) rating from February 18, 2013 to May 1, 2013, and resumed a 0 percent rating from May 1, 2013. [A May 2016 rating decision increased the rating for the heart disability to 30 percent from May 1, 2013.] The appeal is also from a June 2016 rating decision, which denied a TDIU rating, and from an August 2016 rating decision, which denied service connection for left elbow fracture, left leg fracture, and left arm nerve damage disabilities. In December 2018, a videoconference hearing was held before the undersigned; a transcript is in the Veteran's record. Additional argument and evidence including a copy of a requested September 2012 police report were received during a post-hearing abeyance period. An April 2019 Board decision granted staged increased (60 percent prior to April 19, 2016 and 100 percent from that date) ratings for the heart disability, and remanded the issues of entitlement to service connection for residuals of a left leg fracture, residuals of left elbow fracture, and left arm nerve damage, and entitlement to a TDIU for further development. [The April 2019 decision also referred the issue of whether there was clear and unmistakable error (CUE) in the February 2000 rating decision assignment of the initial rating for the Veteran's heart disability for consideration by the Agency of Original Jurisdiction (AOJ). An October 2021 rating decision found clear and unmistakable error in the assignment of a 0 percent rating for the service-connected sick sinus syndrome and hyperanergic syndrome post-pacemaker implant disability and assigned a 10 percent rating from October 5, 1999.] In February 2018, the Veteran's representative filed a motion to advance this case on the Board's docket (AOD) citing the Veteran's cancer illness. March 2018 correspondence mailed to the Veteran and her representative informed them that their motion for AOD was denied based on insufficient medical evidence. [The Veteran and her representative did not reiterate this motion and it is assumed that the alleged good cause underlying the motion for AOD on the Board's docket has been resolved.] At the outset, the Board finds there has been substantial compliance with the prior Board remand directives in this matter regarding the issues of service connection for left elbow and leg fracture residual disabilities. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated in line of duty during active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, and any increase in severity due to the natural progress, from the current level. 38 C.F.R. § 3.310(b). Factual Background The Veteran's active-duty service treatment records (STRs) are silent for complaints, findings, treatment, or diagnosis of a left elbow or left leg disability. Her STRs note a December 1990 fall from a ladder resulting in a dislocated first metacarpal on her left-hand, a June 1991 report of left shoulder pain diagnosed as a strained trapezius muscle, and a December 1991 report of left wrist pain attributed to syncopal episodes. Diagnostic testing on her left wrist in service, to include a January 1991 arthrogram, a January 1991 x-ray, and an August 1991 x-ray, were interpreted as normal. The Veteran underwent a series of testing, to include a CT scan, MRI, and EEG, to ascertain the etiology of her syncope in service. The treating physician noted the presence of prodromal symptoms prior to the syncopal episodes described as headache and dysphoric feeling followed by sudden loss of consciousness. A December 1991 medical evaluation board (MEB) examined the Veteran to assess her fitness for service due to several syncopal episodes. The MEB examiner noted her history of syncope related falls resulting in a sprained wrist and assessed her musculoskeletal condition as normal. A postservice March 1994 military treatment record notes that the Veteran continued to followup with a pacemaker clinic. She reported no syncopal episodes since implantation of a pacemaker in service. September 2012 private treatment records note the Veteran's appearance at an emergency department after losing control of her scooter and crashing. The attending physician noted possible loss of consciousness and no recent syncopal/presyncopal episodes. X-rays were interpreted as showing a left leg comminuted fracture at the proximal tibia with extension into the lateral tibial plateau. Upon transfer to another private facility, the Veteran told the treating physician that she got into an accident driving her scooter, and immediately noticed pain in her left arm and left leg. She reported that she still feels left elbow and left knee pain; she denied loss of consciousness, nausea, or vomiting. A September 2012 ambulance record notes the Veteran's reports of knee and chin pain after a scooter accident. She denied having had loss of consciousness but could not remember the crash. A December 2012 Social Security Administration (SSA) disability benefits application by the Veteran attributes her limitations to her left leg and left arm fractures. She also reported implantation of a pacemaker in 1993. February 2013 private treatment records note that the Veteran's report of fainting in a store and falling on her face and left knee. X-rays following the Veteran fall were interpreted as showing a comminuted intra-articular fracture of the proximal left tibia with internal fixation. The treating provider noted slightly less fragment displacement when compared to a presurgical study in September 2012, and opined that the redness in her knee is consistent with a healing fracture and noted that her left knee range of motion is limited due to financial limitations that inhibit her ability to receive proper care, and cause her to miss therapy and lack home exercises. A March 2013 SSA appeal by the Veteran states that since her original filing for SSA benefits, she broke her jaw due to a fainting episode, her left leg condition worsened, and she received a pacemaker replacement. An August 2013 VA treatment record notes the Veteran's report of suffering from syncope twenty years ago that resolved with implantation of a pacemaker. She stated that she did not have the device checked until she suffered a syncopal episode in February 2013. On February 2014 VA (heart examination), the provider conducted an interview based METs test and noted the Veteran's reports of dyspnea, fatigue, dizziness, and syncope. The examiner noted that the Veteran reported losing consciousness riding a motorcycle in September 2011 and sustaining a left leg fracture with ORIF. Upon returning home for convalescence, she reported continuing to experience episodes of dizziness and lightheadedness with shortness of breath. She reported that in February 2012, she lost consciousness and fell. fracturing her left jaw and losing front teeth, and that since the February accident, she has had occasional dizziness, low energy, and some shortness of breath with prolonged walks and on riding her exercise bike. A February 2014 VA treatment record notes the Veteran's denials of chest pain, dyspnea, or syncope after her pacemaker implantation. She related that on occasions her heart "will beat hard" or "skip" for less than five minutes. A May 2014 VA treatment record notes the Veteran's reported history of left knee pain she attributed to a September 2012 motorized scooter accident that occurred when her pacemaker failed, and she suffered a syncopal episode. She also reported a second syncopal episode that resulted in her fracturing her mandible, landing again on her left knee, and undergoing a procedure to replace her pacemaker in March 2013. An August 2015 VA treatment record notes the Veteran's report that her left leg and left arm fractures were sustained when she lost consciousness after a pacemaker malfunctioned while she was riding on a motor scooter. An October 2015 VA orthopedic record notes that the Veteran is currently three years status post ORIF of a left tibial plateau fracture which has gone on to non-union. The provider noted her visit approximately two months prior to obtain nutritional labs demonstrating continued vitamin D deficiency, and encouraged her to practice smoking cessation, and maintain her current regimen of calcium and vitamin D. On August 2016 VA (knee and lower leg) and (elbow and forearm) examinations, the Veteran reported that her left lower leg and left arm fractures occurred when she blacked out in a moped accident. The examiner noted the Veteran's left leg fracture and status post 2012 open reduction internal fixation (ORIF) procedure that she underwent to correct her left elbow fracture. The consulting provider interpreted a July 2015 x-ray of the Veteran's left elbow as showing left upper extremity traumatic arthritis, and indicated that the status post ORIF left olecranon fracture affected her right side. The examiner opined that her left leg and left arm disabilities are less likely than not proximately due to or the result of the Veteran's service connection heart condition as there is no mention of a syncopal episode in any of the contemporaneous records regarding the September 2012 scooter accident. The provider noted that that the Veteran denied loss of consciousness at the time of the accident, and reported to her cardiologist in August 2013 onset of syncope as occurring in February 2013 as opposed to in September 2012. The provider referred to the Veteran's STRs and noted they indicated that onset of syncope accompanied by prodromal symptoms. The physician cited the presence of prodromal symptoms in February 2013 medical records and the absence of any such symptom complex in September 2012 accident notes. At the December 2018 Board hearing, the Veteran testified that her syncopal episodes started in service and decreased to around three time a year after service. In September 2012, she reported driving down a hill and next remembers laying on the road with the scooter on top of her leg. She recalled going in and out of consciousness on the ambulance ride to the hospital and not knowing why the medical records reflect she did not lose consciousness. She reported that five months later in February of 2013 she started to feel bad. She described her head hurting, a feeling of nausea, and her ears buzzing. She stated that she attempted to find a place to sit in the store when she collapsed and awoke to a broken jaw. On February 2020 VA examination, the consulting provider opined that the Veteran's left elbow and left leg fractures are less likely than not caused or aggravated by her service-connected heart disability. The provider noted review of the Veteran's medical records, to interview and examination of the Veteran, and review of recent medical sources. The provider observed that the Veteran sustained a left upper extremity comminuted olecranon fracture and left lower extremity comminuted fracture in a September 2012 scooter accident, and underwent ORIF for the left olecranon fracture in September 2012 and ORIF of the left proximal tibia fracture in October 2012. The examiner noted that the ambulance report is silent for any loss of consciousness or altered mentation, and that the Veteran's medical records show that she denied syncope-type symptoms until February 2013. The examiner noted that the February 2013 fall was evaluated promptly as a syncope episode with surgery to replace the pacemaker generator resolving the syncope episodes. The provider opined her left elbow fracture is less likely than not caused or aggravated by the February 2013 fall as there is no evidence in the record to suggest that the Veteran sustained the left elbow fracture during the February 2013 syncope episode. Regarding the left leg fracture, the examiner noted evidence of left knee pain associated with the February 2013 syncope related fall. The consulting provider referenced a medical evaluation by the hospital orthopedic staff and their diagnosis that the redness viewed on the Veteran's left knee is related to a healing September 2012 fracture with no evidence of a new fracture or [superimposed] injury. The examiner also cited an orthopedic note that the Veteran's poor left knee range of motion is attributable to her missing therapy, lack of home exercises, and also cited the Veteran's own report that her condition was the same as before she entered the hospital. The provider noted a May 2014 evaluation by a VA orthopedic doctor who linked the Veteran's left tibial plateau fracture nonunion per CT scan to a vitamin D deficiency. The examiner cited to medical literature in explaining that nonunion of a fracture is when a broken bone fails to heal, which is more likely to occur when the fracture is from a high energy injury which impairs the blood supply. The provider cited several risk factors for nonunion of a fracture, to include smoking, older age, severe anemia, low vitamin D level, hypothyroidism, and poor nutrition. Nonunion of tibial plateau fracture is an uncommon clinical entity with risk factors of complex fracture associated with soft tissue damage and devascularization. The examiner listed the Veteran's risk factors as a high energy injury/scooter accident, smoking, vitamin D deficiency, and poor nutrition/low BMI. The examiner contrasted her February 2013 x-rays after her fall with the pre-surgical x-rays from September 2012, and opined that the February 2013 x-rays do not show any new injury, but rather slightly less fragment displacement when compared with the September 2012 which is consistent with no aggravation of a left leg fracture due to a service-connected heart condition. 1., 2. Entitlement to service connection for residuals of left elbow and left leg fractures, to include as secondary to a service-connected heart disability, is denied. As an initial matter, the Board notes that Veteran has established service-connection for a post-reimplantation of a pacemaker cardiac disability. The Veteran's representative contends that the Veteran's pacemaker malfunctioned while she was riding a motor scooter resulting in a loss of consciousness and an accident in which she sustained fractures to her left proximal tibia and her left elbow. See e.g., March 2015 and June 2016 correspondence. Alternatively, the representative contends that a February 2013 fall attributed to syncope caused by her service-connected heart disability could have aggravated the left leg fracture. See January 2019 Correspondence. It is not in dispute the Veteran has residuals of a left elbow fracture and residuals of a left leg fracture (status post ORIF left olecranon fracture, status post ORIF left proximal tibia fracture with nonunion of the proximal tibia fracture plateau, and left upper extremity traumatic arthritis.) The Veteran's STRs are silent for complaints, treatment, findings, or diagnoses related to a left elbow, or left leg fracture. She testified at the April 2019 Board hearing that she first fractured her left elbow and leg in a September 2012 motorized scooter accident. She has not provided any evidence (or specifically alleged) that her residuals of a left elbow fracture may somehow be related directly to her service. There is no indication in her postservice medical records that her left elbow fracture diagnosed over twenty years after service may be related to service. Consequently, service connection for a left upper extremity arthritis on the basis that such disability manifested in service and persisted, or on a chronic disease presumptive basis (for upper extremity arthritis under 38 U.S.C. §§ 1112, 1137) is not warranted. The analysis turns to her primary theory of entitlement, whether service connection for residuals of a left elbow or leg fracture is warranted based on an affirmative showing that the disability is secondary to the Veteran's service-connected heart disability, considering all the evidence, including that pertinent under 38 C.F.R. § 3.310(a). Consulting August 2016 and February 2020 medical providers have opined that it is less likely than not that her residuals of a left elbow and leg fracture are caused by her service-connected heart disability. The August 2016 consulting provider addressed the Veteran's representative's contention that she suffered a syncopal episode resulting in a September 2012 motorized scooter (going downhill) accident by citing to the silence of regarding loss of consciousness in medical records contemporaneous to the accident as well as the Veteran's own more contemporaneous reports (reporting onset of syncope in February 2013 to her VA cardiologist (i.e., in a clinical, treatment, context).) The August 2016 consulting provider noted that her syncope in service was accompanied by prodromal symptoms noted in the STRs, and prodromal symptoms in the February 2013 fall injury records, with no such symptom complex noted in the September 2012 scooter accident reports. The August 2016 consulting provider noted a diagnosis of status post ORIF left olecranon fracture after September 2012 motor scooter accident (also noting apparently improperly that the right side was affected). As the diagnosis identifies the proper side, "left," this error does not detract from the probative value of the opinion. The February 2020 consulting provider reiterated the same points as to the silence in contemporaneous September 2012 medical records regarding syncope symptoms, and that the February 2013 syncope episode resulted in prompt assessment and replacement of the Veteran's pacemaker, and opined that the added diagnosis of left tibial plateau fracture nonunion is more likely due to the Veteran's nonservice-connected risk factors (high energy injury/scooter accident, smoking, vitamin D deficiency, and poor nutrition/low BMI) than to a superimposed injury in February 2013.) Regarding aggravation, the February 2020 consulting provider addressed the Veteran's representative's theory that the Veteran's left leg fracture was aggravated by the February 2013 syncope-related fall by contrasting the x-rays in September 2012 and February 2013 to show no new injury, but rather slightly less (improved rather than increased pathology) fragment displacement consistent with no aggravation of a left leg fracture due to a service-connected heart condition. The February 2020 consulting provider did not specifically address the Veteran's diagnosis of traumatic arthritis of the elbow. However, the February 2020 consulting provider's rationale addressed aggravation of the left arm fracture, to include the traumatic arthritis, by noting the silence of contemporaneous February 2013 medical records regarding complaints, treatment, or diagnoses of left arm conditions (notably, the Veteran and her attorney have not alleged aggravation of her left arm fracture by the February 2013 fall.) The VA medical opinions of record, against the claim, cite to supporting factual data (such as the x-rays, medical literature, lay statements of the Veteran, the symptomology associated with the onset of her syncope, and postservice syncope complaints noted in medical records) and include rationale that cites to underlying medical principles). They are by medical providers competent to offer the opinions, and are probative evidence in this matter. As noted above, the Veteran is a layperson, and does not profess to have medical expertise; therefore, her own opinion regarding the etiology of her residuals of a left elbow or left leg fracture are not probative evidence in the matter. See Jandreau, 492 F.3d at 1372. She has not submitted a medical opinion in the matter of a nexus between her residuals of a left elbow or left leg fracture and her service service-connected heart disability (to include her syncope symptoms.) She has asserted that her 2012 motorized scooter accident in which she sustained the fractures was due to a syncopal episode. However, VA examiners have observed that her allegation is not consistent with contemporaneous clinically recorded data in orthopedic/trauma related and cardiac records (both regarding loss of consciousness in September 2012 and when syncope symptoms first occurred postservice requiring reimplantation of pacemaker). Considering the self-serving nature of the Veteran's more recent allegations and that her statements and the arguments of her representative were not accompanied by a medical provider's opinion supporting the claim, the Board find's the Veteran's allegation that her motor scooter accident while going downhill was due to a syncopal episode due to her service-connected heart disability not credible and lacking in probative value. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claims of service connection for residuals of left elbow or left leg fractures. Therefore, the appeals seeking service connection for residuals of left elbow and left leg fractures must be denied. REASONS FOR REMAND 1. Entitlement to service connection for left arm nerve damage, to include as due to service-connected heart disability. The April 2019 Board remand ordered development to arrange for a peripheral nerve examination of the Veteran to determine the etiology of her claimed left arm numbness. Regarding aggravation, the April 2019 Board remand directed that the examiner should address whether it is at least as likely as not that a left arm/wrist disability was caused or aggravated by the Veteran's her service-connected heart disability to include as due to injuries due to such disability. On February 2020 VA (peripheral nerves conditions) examination, the examiner noted a November 2016 diagnosis of left carpal tunnel status post release in September 2018 and a November 2017 diagnosis of left cubital tunnel status post ulnar nerve decompression in September 2018 with residual subjective left elbow decreased sensation. The examiner addressed secondary service connection and stated it is less likely than not that a left arm/wrist disability was caused or aggravated by the Veteran's service-connected heart disability. The provider noted that medical literature supports that the conditions are not anatomically, or medically related. The provider did not address whether the Veteran's February 2013 fall (which the same examiner noted was due to a syncope episode attributed to her service-connected heart disability) caused or aggravated her diagnosed left carpal tunnel and/or left cubital tunnel syndrome disabilities. Accordingly, development for a fully adequate medical opinion in this matter is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to April 19, 2016. The Veteran meets the schedular rating requirements in 38 C.F.R. § 4.16(a) for consideration of an award of a TDIU rating for her heart disability prior to April 19, 2016. The April 2019 Board remand found that the claim for a TDIU rating is inextricably intertwined with the service connection issues being remanded, and appellate consideration of the matter must be deferred pending resolution of the remanded claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As one of those issue remains pending, consideration of the entitlement to a TDIU rating prior to April 16, 2019 must remain deferred. The matters are REMANDED for the following action: 1. Arrange for the Veteran's record to be returned to the February 2020 peripheral nerves examiner for further review and an addendum opinion. [If the February 2020 examiner is unavailable, the record should be forwarded to another appropriate clinician for review and the addendum sought (and if in such circumstances a further examination of the Veteran is deemed necessary, such should be arranged.) The consulting should respond to the following. (a.) Identify (by diagnosis) each left arm/wrist peripheral nerve disability found, or shown by the record during the pendency of this claim. If left carpal tunnel status post release and left cubital tunnel status post ulnar nerve decompression with residual subjective left elbow decreased sensation are not diagnosed, reconcile such findings with the evidence in the record indicating otherwise. (b.) Identify the likely etiology for each left arm/wrist peripheral nerve entity diagnosed. Specifically, it is it at least as likely as not (a 50% or better probability) that the disability was incurred in or aggravated during the Veteran's active service? In responding, the examiner should address the complaints and treatment for a left wrist injury in service. (c.) If the answer to (b) is No, is it at least as likely as not that the left arm/wrist peripheral nerve disability was caused or aggravated by the Veteran's service-connected heart disability (to include as due to an injury sustained due to the heart disability)? [The opinion must encompass aggravation and should specifically address the February 2013 fall.] The examiner must include rationale with all opinions. 2. Then, review the record, arrange for any additional development suggested, and readjudicate entitlement to a TDIU rating considering the determination made on the remanded claim. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lederman, Michael 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.