Citation Nr: 21077082 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 09-35 105 DATE: December 28, 2021 ORDER Entitlement to a separate rating for a neurological impairment due to left shoulder strain, residual of left clavicular fracture, is denied. FINDING OF FACT The probative evidence of record indicates that the Veteran's diagnosed neurological disabilities are not symptoms or manifestations of his service-connected left shoulder disability. CONCLUSION OF LAW The criteria for entitlement to a separate rating for a neurological impairment due to left shoulder strain, residual of left clavicular fracture, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.6, 4.14. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1984 to August 1990. This appeal stems from the Veteran's January 2009 claim for an increased rating for his service-connected left shoulder disability, which was originally decided in a May 2009 rating decision. In October 2015, the Board denied an increased rating for the service-connected left shoulder disability. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In June 2016, the Court granted a May 2016 joint motion for partial remand (JMPR) of the Veteran and the Secretary of Veterans Affairs. In the JMPR, the parties agreed that the Board properly determined that a higher rating was not warranted for the service-connected left shoulder disability on a schedular basis, but that the Board did not properly consider whether a higher rating was warranted on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). In September 2016, the Board issued a decision denying entitlement to a rating in excess of 10 percent for the service-connected left shoulder disability on an extraschedular basis. The Veteran appealed that decision to the Court. In January 2018, the Court issued a Memorandum Decision that found that the Board again did not properly consider whether a higher rating was warranted on an extraschedular basis. The January 2018 Memorandum Decision vacated the September 2016 Board decision and remanded the appeal for further proceedings. In an August 2018 decision, the Board denied the Veteran's appeal for entitlement to a rating in excess of 10 percent for the service-connected left shoulder disability on an extraschedular basis, and remanded the issue of entitlement to a separate rating for neurological impairment due to the service-connected left shoulder disability. As such, the only issue remaining on appeal is entitlement to a separate rating for a neurological impairment due to the service-connected left shoulder disability, which is now characterized as left shoulder strain, residual of left clavicular fracture. In September 2020, the Board found that an August 2019 VA opinion as to whether the Veteran's diagnosed neurological impairments are related to his service-connected left shoulder disability was inadequate for decision-making purposes. The Board also noted that December 2018 nerve conduction testing cited in an April 2019 supplemental statement of the case was not of record. The Board therefore again remanded the case to the Agency of Original Jurisdiction (AOJ) with directions to obtain the Veteran's VA treatment records from December 2018 that specifically show nerve conduction testing results and to schedule the Veteran for a new examination to determine the severity of neurological impairment resulting from his service-connected left shoulder disability. Pursuant to the September 2020 remand, the AOJ obtained the December 2018 electromyography report showing nerve conduction testing results. The AOJ also afforded the Veteran VA examinations in June 2021 and August 2021, and obtained an addendum opinion in October 2021. The examinations and opinions, when considered together in the aggregate, are responsive to the September 2020 Board remand directives and provide the information required to render a decision on the appeal. Accordingly, the Board finds that VA at least substantially complied with the September 2020 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As the Board noted in the September 2020 remand, the Veteran's representative argued in an August 2020 brief that an August 2019 VA examiner was not qualified to provide the requested opinion because the examiner "was identified merely as a Nurse Practitioner (NP), without any identified competence or expertise in the relevant specialty of Neurology." He further asserted, "Absence of competence renders her conclusions no more probative than the appellant's lay assertions that there is a nexus between neurological impairment and the service-connected left shoulder disability." Once the competency of a VA examiner has been challenged by the appellant, VA must satisfy its burden of persuasion as to the examiner's qualifications. Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019). The crux of the Veteran's challenge to the August 2019 VA examiner's competency is that the examiner is not a specialist in neurology. However, it is not necessary that VA examinations be conducted by a specialist in the particular field of the Veteran's claimed disability. Rather, VA satisfies its duty to assist the Veteran when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician's assistant. Cox v. Nicholson, 20 Vet. App. 563 (2007). In this case, the August 2019 VA examiner indicated that she is a certified nurse practitioner. She was asked to provide opinions as to possible neurological symptoms or manifestations from the Veteran's service-connected left shoulder disability. There is no indication that a specialist is needed for such an opinion. Moreover, there is no indication that a certified nurse practitioner could not provide an opinion on a general medical question such as the possible neurological effects of a musculoskeletal disability. The Board therefore concludes that the fact that the examiner is not a specialist in neurology does not, alone, make her unqualified to provide the opinion requested. It certainly does not render her opinion no more probative than the Veteran's lay witness opinions. As such, the Board finds the August 2019 opinion, as well as any other opinion of record rendered by a nurse practitioner, was rendered by a competent medical source. Neither the Veteran nor his representative has raised any other issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to a separate rating for a neurological impairment due to left shoulder strain, residual of left clavicular fracture The Veteran seeks entitlement to a separate rating for neurological impairment that he believes is due to his service-connected left shoulder disability. Specifically, the Veteran has argued that the pins and needles sensations he has in his upper extremities are manifestations of the service-connected left shoulder disability and that he is therefore entitled to a separate rating for the neurological impairment as part of the left shoulder disability. The record confirms that the Veteran the December 2018 nerve conduction testing revealed bilateral carpal tunnel syndrome. VA has a duty to maximize benefits in increased ratings claims by examining all possible rating methods in search of the highest level of established schedular compensation. Those rating methods include, but are not limited to, secondary service connection, analogous ratings, the requirement to assign a higher schedular rating if a veteran's disability more nearly approximates the higher rating, and the ability to rate a single disability under multiple diagnostic codes without pyramiding. Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). Therefore, the question for the Board is whether the diagnosed neurological impairment is a symptom or manifestation of the service-connected left shoulder disability such that it may be rated as part of that disability. The August 2021 VA examiner opined that the Veteran's neurological impairment is less likely than not proximately due to, the result of, or aggravated by his service-connected left shoulder disability. As a rationale for that opinion, the examiner explained that the Veteran's neurological impairment and the service-connected left shoulder disability are not medically related, that that neurological impairment is a separate entity entirely from the service-connected left shoulder disability and unrelated to it, and that a thorough review of the medical literature failed to demonstrate a causal relationship. The examiner also explained that there is no objective evidence or medical literature to support that the Veteran's neurological impairment was aggravated beyond its natural progression by the service-connected left shoulder disability. The Board finds that the August 2021 VA examiner's opinion, when considered on its own, is entitled to limited probative value because the examiner did not provide citation to the literature considered, as directed in the September 2020 Board remand. However, the examiner did provide some appropriate rationale for the opinions provided. Specifically, she provided insight into the medical aspects of the Veteran's claimed neurological impairment and his service-connected left shoulder disability by explaining that the two disabilities are separate entities and that there is no evidence that the service-connected left shoulder disability has aggravated the neurological impairment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). The October 2021 VA examiner stated that a nexus between the Veteran's service-connected left shoulder disability and his neurological impairment is not established because the carpal tunnel syndrome shown on the December 2018 testing is caused by pressure on the median nerve in the wrist. Known risk factors in developing carpal tunnel syndrome include prolonged repetitive movements of the fingers and wrists, hand movements, vibration, and mechanical stress on the palm. On the other hand, a clavicle fracture is a break in the bone connecting the breastbone and the shoulder. There is no medical literature that clearly establishes a causal relationship between clavicle fracture and carpal tunnel syndrome. Thus, the neurological impairment of carpal tunnel syndrome is a separate entity entirely from status-post left clavicular fracture and is unrelated to it. The Board finds that the October 2021 VA examiner's opinion, when considered in concert with the August 2021 VA examiner's opinion, is entitled to moderate probative weight. The October 2021 VA examiner expounded upon the August 2021 VA examiner's finding that the claimed neurological impairment and the Veteran's service-connected left shoulder disability are separate entities by further explaining the nature of those two disabilities. Specifically, she explained that the service-connected left shoulder disability arises from a break in the bone connecting the breastbone and the shoulder whereas the diagnosed carpal tunnel syndrome is caused by pressure on the median nerve. She also provided a list of known risk factors for developing carpal tunnel syndrome, and that list does not include a fracture in the clavicle or strain in the shoulder. Together, the August 2021 and October 2021 opinions provide insight into the medical aspects of the service-connected left shoulder disability and the claimed neurological impairment, and explain why the Veteran's diagnosed carpal tunnel syndrome is less likely than not a symptom or manifestation of the service-connected left shoulder disability. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). The Board acknowledges the Veteran's belief that his neurological impairment is a symptom or manifestation of his service-connected left shoulder disability. However, the Veteran in this case is not considered competent to provide a nexus opinion regarding the issue, as the issue is medically complex. It requires knowledge of complicated diagnostic medical testing and the interaction between different bodily systems. It is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, his statements are not probative and do not weigh against the August 2021 and October 2021 VA examiners' opinions. Accordingly, the probative evidence of record indicates that the Veteran's diagnosed neurological disabilities are not symptoms or manifestations of his service-connected left shoulder disability. Therefore, the Board concludes that the evidence for and against the claim for entitlement to a separate rating for a neurological impairment due to left shoulder strain, residual of left clavicular fracture, is not in approximate balance, but rather weighs against the claim. Because there is not an approximate balance in the weight of the evidence, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.