Citation Nr: 21071908 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-47 488 DATE: December 1, 2021 ORDER Whether new and material evidence has been received to reopen the claim of entitlement service connection for bilateral hearing loss disability is granted. Entitlement to service connection for right carpal tunnel syndrome is granted. Entitlement to an increased rating in excess of 10 percent for mild degenerative joint disease of the right hand is denied. REMANDED Entitlement to service connection for erectile dysfunction secondary to posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for gastroesophageal reflex disease (GERD) secondary to PTSD is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The claim for service connection for migraine headache was previously denied in an April 2013 rating decision, the Veteran did not appeal the decision; additional evidence has been submitted that relates to an unestablished fact necessary to substantiate the claim. 2. The preponderance of the evidence reflects that the Veteran's right carpal tunnel syndrome has been aggravated by his service-connected mild degenerative joint disease of the right hand. 3. The Veteran's degenerative arthritis of the right hand has been manifested by painful motion of the right 3rd and 4th fingers in flexion and extension. CONCLUSIONS OF LAW 1. The unappealed April 2013 rating decision which denied service connection for bilateral hearing loss disability is final; as new and material evidence has been submitted, the Veteran's claim of entitlement to service connection for bilateral hearing loss disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 3.104(a), 20.302, 20.1103. 2. The criteria for service connection for right carpal tunnel, have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. § 3.303, 3.304, 3.307, 3.310. 3. The criteria for an increased rating in excess of 10 percent for degenerative arthritis of the right hand have not been met. 38 U.S.C. 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5229-5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1969 to September 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from the February 2015 and November 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Whether new and material evidence has been received to reopen the claim of entitlement service connection for bilateral hearing loss disability In general, RO decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999) but see 38 U.S.C. § 5103A (eliminating the concept of a well-grounded claim). In this case, the Veteran's claim for entitlement to service connection was denied by the RO in an April 2013 rating decision. The Veteran did not appeal the decision and it became final. The Veteran requested that the claim for entitlement to service connection be reopened and was subsequently denied in the November 2016 rating decision currently on appeal. At the time of the April 2013 rating decision, the evidence of record consisted of the Veteran's lay statements, and medical records and correspondence. The evidence received since the last final denial includes additional medical records and lay statements in regard to the claim of entitlement to service connection, to include annotations of current symptoms and disabilities. The Board finds that some of the additional evidence raises a possibility of substantiating the claims for entitlement to service connection. In this regard, the Board is mindful of the low threshold for reopening a previously denied claims. Shade, 24 Vet. App. at 110. The additional medical records and the Veteran's supplemental statements were not within the claims folder at the time of the April 2013 denial. The new records and lay statements go to the basis of the Veteran's claim for entitlement to service connection. Thus, the Board finds the additional statements new and material. Accordingly, the Board concludes that evidence has been received which is new and material, and the claim for service connection is reopened. 2. Entitlement to service connection for right carpal tunnel syndrome The Veteran contends that he has experienced numbness in the right hand related to his service-connected degenerative joint disease of the right hand. A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a), (b). The question for the Board is whether the Veteran has right carpal tunnel syndrome that is caused or aggravated by a service-connected disability. The Board finds that the preponderance of the competent, credible, and probative evidence establishes that the Veteran's right carpal tunnel syndrome is proximately due to or aggravated by his service-connected degenerative joint disease of the right hand. In a May 2018 VA medical opinion, the examiner explained that the Veteran's carpal tunnel syndrome is most likely secondary to his repetitive work as a mechanic that was aggravated by the service-connected right-hand disability. In light of the Veteran's diagnosis, the objective clinical medical evidence, and his credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for right carpal tunnel syndrome and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are met and the Veteran's claims for service connection for right carpal tunnel syndrome is granted. 3. Entitlement to an increased rating in excess of 10 percent for mild degenerative joint disease of the right hand The Veteran's service-connected bilateral hand has been rated as 10 percent disabling for each hand under Diagnostic Code 5229-5010. 38 C.F.R. 4.71a. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. The first four numbers reflect the diagnosed disability. The second four numbers after the hyphen identifies the criteria used to evaluate that disability Diagnostic Code (DC) 5229 contemplates limitation of motion of the affected digits. Additionally, the Veteran is right hand dominant; thus, it is considered his major extremity for rating purposes. According to the rating criteria for Diagnostic Code 5229, a noncompensable rating is warranted for a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and with extension limited by no more than 30 degrees. A 10 percent disability rating is warranted for a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. Ten percent is the maximum schedular rating permitted under Diagnostic Code 5229. See 38 C.F.R. 4.71a, DC 5229. The Veteran was provided a VA medical examination in February 2015 which reflects no decrease in strength or dexterity bilaterally. The examination report noted no gap between the Veteran's right thumb pad and right index fingertip. Further, the report revealed no gap between the proximal crease of the palm to the left or right index fingertip. Also, the medical evidence revealed no gap between the proximal crease of the palm to the left or right long fingertip or extension limited by more than 30 degrees. Additionally, the examination report revealed no ankylosis in the right hand. An August 2016 VA examination reflects the Veteran's right hand with degenerative arthritis. The examination report further notes normal range of motion, no gap between the thumbs and the fingers, and no gap between the fingers (index or long) and the proximal transverse crease of the hand on maximal flexion. However, the examination report did reflect painful motion of the 3rd and 4th finger in flexion and extension. A May 2018 VA examination report notes no gap between the thumbs and the fingers, and no gap between the fingers (index or long) and the proximal transverse crease of the hand on maximal flexion. Based on a review of the evidence of record, the Board finds that an increased rating in excess of 10 percent for mild degenerative joint disease of the right hand under Diagnostic Code 5229 is not warranted. The medical evidence of record does not reveal a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. The Veteran has already been assigned the maximum rating of 10 percent, under Diagnostic Code 5229, and there is no legal basis upon which to award a higher or separate schedular evaluation for mild degenerative joint disease of the right hand. The Board has considered all arguments advanced on behalf of the Veteran and recognizes his feeling that a higher rating is warranted. Even providing full credence to the Veteran's assertions, there is no legal basis upon which to assign a higher or separate schedular evaluation for mild degenerative joint disease of the right hand. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). A rating in excess of 10 percent for mild degenerative joint disease of the right hand is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction secondary to PTSD is remanded. The Veteran was provided a VA medical opinion in October 2016. The examiner stated that the Veteran's current erectile dysfunction is not related to any treatment medication for the Veteran's PTSD. The examiner further stated that PTSD does not cause erectile dysfunction. However, the examiner failed to provide a rationale in support of the medical conclusion provided. When a VA medical opinion is provided to the Board; that opinion must support its conclusion with an analysis that the Board can consider and weigh. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As such, the Board finds the October 2016 opinion to be inadequate and must remand for a supplemental opinion discussing the examiner's determination, which considers the entire claims folder, to include the Veteran's lay statements. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, the claim must be remanded to obtain adequate etiological opinion. 2. Entitlement to service connection for GERD secondary to PTSD is remanded. The Board notes that the Veteran has not been provided VA medical examinations and/or opinions in regard to the claimed conditions and the evidence does not otherwise address whether the claimed conditions are related to service. VA's duty to assist requires it to provide an adequate medical examination and/or obtain a medical opinion if the evidence is not sufficient to decide the claims. In this case, without adequate medical examinations and medical opinions regarding to the Veteran's claimed conditions, the Board finds the current evidence to be insufficient to decide the claims. As such, the Board finds VA medical examinations and medical opinions are required by VA's duty to assist the Veteran in developing evidence to substantiate their claims to service connection. 3. Entitlement to service connection for tinnitus is remanded. 4. Entitlement to service connection for bilateral hearing loss disability is remanded. The Veteran was provided VA examinations for the above claims in April 2013 (hearing loss) and October 2016 (hearing loss/tinnitus). The examiner concluded that the Veteran's complaint and/or reported symptomatology for the above issues are less likely as not related to military service. The VA examiner seemed to base the unfavorable conclusions on the mere absence of in-service diagnosis or treatment records for the claimed conditions. In so doing, the examiner failed to discuss relevant medical treatment records, medical literature (with regards to the claimed conditions), and the Veteran's credible lay statements. An opinion based on the absence of treatment records without consideration of a Veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007. When a VA medical opinion is provided to the Board; that opinion must support its conclusion with an analysis that the Board can consider and weigh. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As such, the Board finds the April 2013 and October 2016 opinions to be inadequate and must remand for a supplemental opinion discussing the examiner's determination, which considers the entire claims folder, to include the Veteran's lay statements. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, the claims must be remanded to obtain adequate etiological opinions. The matters are REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for his claimed condition, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file. 2. Schedule the Veteran for an examination (or telehealth interview, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's bilateral hearing loss disability. After reviewing the claims file, the examiner should address whether it is at least as likely as not (50 percent probability or more) the Veteran's bilateral hearing loss, that is related to their active military service, or is otherwise etiologically related to service. In providing the requested opinion, the examiner must consider and discuss the Veteran's lay statements regarding the onset and progression of the claimed disorder. A complete rationale for any opinion expressed must be provided. 3. Schedule the Veteran for an examination (or telehealth interview, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's tinnitus. After reviewing the claims file, the examiner should address whether it is at least as likely as not (50 percent probability or more) the Veteran's tinnitus, that is related to their active military service, or is otherwise etiologically related to service. In providing the requested opinion, the examiner must consider and discuss the Veteran's lay statements regarding the onset and progression of the claimed disorder. A complete rationale for any opinion expressed must be provided. 4. Schedule the Veteran for an examination (or telehealth interview, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's erectile dysfunction. After reviewing the claims file, the examiner should address whether it is at least as likely as not (50 percent probability or more) the Veteran's erectile dysfunction is related to or aggravated by their service-connected PTSD. In providing the requested opinion, the examiner must consider and discuss the Veteran's lay statements regarding the onset and progression of the claimed disorder 5. Schedule the Veteran for an examination (or telehealth interview, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's GERD. After reviewing the claims file, the examiner should address whether it is at least as likely as not (50 percent probability or more) the Veteran's GERD is related to or aggravated by their service-connected PTSD. In providing the requested opinion, the examiner must consider and discuss the Veteran's lay statements regarding the onset and progression of the claimed disorder. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brandon A. Williams, 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.