Citation Nr: 21005263 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-16 108 DATE: February 1, 2021 ORDER Entitlement to an increased disability rating for right carpal tunnel syndrome of 30 percent, but no higher, for the entire period on appeal is granted. Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for residuals of transient ischemic attack is denied. REMANDED Entitlement to service connection for left wrist carpal tunnel syndrome is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a skin condition, to include rosacea, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his right carpal tunnel syndrome is manifested by moderate incomplete paralysis. 2. Resolving reasonable doubt in the Veteran’s favor, his obstructive sleep apnea began during active service. 3. The preponderance of the evidence is against finding that the Veteran has current residuals of a transient ischemic attack and that any transient ischemic attack began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating for right carpal tunnel syndrome of 30 percent, but no higher, for the entire period on appeal are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. 2. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for residuals of a transient ischemic attack are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating The Veteran contends that he is entitled to a higher rating for his right carpal tunnel syndrome. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8515. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8616 and 8716. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent disabling for the major extremity and 20 percent disabling for the minor extremity. Severe incomplete paralysis is rated as 50 percent disabling for the major extremity and 40 percent disabling for the minor extremity. Complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances is rated as 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). a. Period from March 12, 2010 to January 26, 2020 Having reviewed the record, the Board finds that after resolving doubt in the Veteran’s favor, an increased rating of 30 percent, but no higher, is warranted for right carpal tunnel syndrome. The record establishes that the Veteran’s right carpal tunnel syndrome is more nearly approximated by moderate incomplete paralysis of the median nerve that is manifested by sensory disturbances, pain, and minor impairment in motor functions. There is evidence of sensory disturbances. A December 2010 VA examination revealed paresthesias manifested by tingling. However, clinical testing revealed sensory intact to light touch and monofilament. A February 2010 treatment record noted complaints of intermittent numbness and tingling. August and September 2012 treatment records note numbness. There is evidence of minor impairment of motor functions. The evidence reveals that objective testing of motor functioning is normal. December 2010 VA examination revealed normal motor function upon testing with evidence of active movement against full resistance with wrist flexion, wrist extension, finger flexion, finger abduction, and thumb opposition. A February 2010 treatment record noted full active range of motion of the wrist and hand. However, the December 2010 VA examination noted that the Veteran would experience decreased manual dexterity. As such, the Board will resolve doubt in the Veteran’s favor and ind that there is minor impairment in motor function. There is evidence of pain. A December 2010 VA examination did not indicate any findings or complaints of pain. However, a February 2010 treatment record notes the Veteran’s complaint of pain at night causing him to wake and shake out hands. There is no evidence of trophic changes. A December 2010 VA examination did not reveal tropic changes. Treatment records do not note any trophic changes. There is no evidence of loss of reflexes. A December 2010 VA examination revealed normal deep tendon reflexes upon examination. Treatment records do not note any loss of reflexes. There is no evidence of muscle atrophy. A December 2010 VA examination did not reveal any muscle atrophy. Treatment records do not note any muscle atrophy. There is no evidence of complete paralysis. A December 2010 VA examination did not indicate any findings of complete paralysis. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance, pain, and minor impairment of motor functions. The probative evidence of record is against a finding that the disability is manifest by trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that a rating of 30 percent, but no higher, is warranted for right carpal tunnel syndrome for the period from March 12, 2010 to January 26, 2020. b. Period from January 27, 2020 Having reviewed the record, the Board finds that an increased rating in excess of 30 percent is not warranted for right carpal tunnel syndrome for the period from January 27, 2020. The evidence establishes that the Veteran’s right carpal tunnel syndrome is more nearly approximated by moderate incomplete paralysis of the median nerve and is manifested by sensory disturbance and minor impairment in motor function. There is evidence of sensory disturbance. A January 2020 VA examination revealed moderate paresthesias and/or dysesthesias and moderate numbness. However, sensory examination for light touch was normal. There is evidence of minor impairment in motor function. A January 2020 VA examination revealed active movement against some resistance with respect to grip and pinch, but strength was normal for wrist flexion and extension. There is no evidence of pain. A January 2020 VA examination did not reveal any pain. There is no evidence of trophic changes. A January 2020 VA examination did not reveal any trophic changes. There is no evidence of loss of reflexes. A January 2020 VA examination revealed normal deep tendon reflexes upon examination. There is no evidence of muscle atrophy. A January 2020 VA examination did not reveal any muscle atrophy. There is no evidence of complete paralysis. A January 2020 VA examination revealed moderate incomplete paralysis of the right median nerve. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance and minor impairment of motor functions. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, loss of reflexes, pain, muscle atrophy, and complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for right carpal tunnel syndrome. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection Sleep Apnea The Veteran asserts his sleep apnea is etiologically related to service. Resolving doubt in the Veteran’s favor, the Board concludes that the Veteran has a current disability that is related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records and a January 2020 VA examination show the Veteran has a current diagnosis of obstructive sleep apnea. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a January 2020 VA examination. The January 2020 VA examiner opined that the Veteran’s obstructive sleep apnea was not caused by an in-service event based on review of service medical records and medical literature. The examiner noted that the Veteran’s sleep apnea was not diagnosed until decades after service. Additionally, he discussed potential risk factors of sleep apnea. The evidence in favor of the claim includes a December 2018 opinion from Dr. J.H. and a September 2020 opinion from Dr. A.P. Collectively, the December 2018 and September 2020 opinions indicate that the Veteran’s obstructive sleep apnea was at least as likely as not present while the Veteran was serving on active duty. Dr. J.H. noted that the condition manifests as early as the late 20s/early 30s with symptoms including daytime fatigue, sleepiness, and observers informing the patient that loud snoring or apneic/hypopneic events are witnessed during sleep. He also noted that often, many years pass between the disorder’s onset and clinical diagnosis. He concluded that based on the above, and as the Veteran had these symptoms while serving, it highly unlikely that the condition developed abruptly after discharge. Dr. A.P. noted that service treatment records were reviewed. She stated the Veteran had significant snoring and daytime fatigue while on active duty and while he was not tested for sleep apnea, it was highly likely that he suffered from severe sleep apnea while on active duty. Of note, in November 2018 and September 2020, the Veteran and his spouse reported chronic snoring, restless sleeping, daytime tiredness, and dozing off during the day during and since service. Additionally, a July 1982 service treatment record documented the Veteran’s complaint of no energy and tiredness for two weeks. Upon review of the record, the Board finds the evidence to be in equipoise as to whether the Veteran’s current obstructive sleep apnea is related to service or manifested during service. The January 2020 VA examination is probative as it is based on a review of service treatment records and medical literature. However, it is unclear whether lay statements were considered. In contrast, the December 2018 opinion is probative as it is based on lay statements and medical knowledge. However, it is unclear whether all service treatment records were reviewed. Additionally, the September 2020 opinion is probative as it is based on review of service treatment records, lay statements, and medical knowledge. However, it contains minimal rationale. Despite these deficiencies, the Board finds that the opinions are probative and further remand would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As such, the Board finds that the evidence is in equipoise as to whether the Veteran’s in-service symptoms of snoring and daytime fatigue were early manifestations of his current obstructive sleep apnea. The claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Residuals of Transient Ischemic Attack The Veteran contends that his residuals of a transient ischemic attack are etiologically related to service. 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. The Board concludes that, while the Veteran had a transient ischemic attack, the preponderance of the evidence is against finding that he has any current residuals and that any transient ischemic attack began during active service, or is otherwise related to an in-service injury, event, or disease. A January 2020 VA examination shows no clinical residuals of a transient ischemic attack. Neurological testing was normal. The examiner noted the Veteran’s report that his transient visual loss of the left visual field lasted a couple of days, but eventually went back to normal. Additionally, federal treatment records show the Veteran’s transient ischemic attack did not occur until December 2002, decades after his separation from service. Further, the January 2020 VA examiner opined that there are no clinical residuals of a transient ischemic attack, and the 2002 findings of a small stroke are not caused by or a result of active duty. The examiner stated, based on review of the medical records, medical literature and clinical experience as a board-certified neurologist, there is no evidence of cerebrovascular disease or symptoms of such during active duty. The examiner determined that the Veteran’s complaints of fatigue, sleepiness and lack of energy have nothing to do with transient ischemic attacks and nothing in his records suggest this issue during active duty. The examiner noted that, transient ischemic attacks are “transient” and have no residual clinical findings. Thus, he concluded there is no evidence of transient ischemic attacks or stroke-like symptoms during service, and any transient ischemic attack following separation has no relationship to active duty. Additionally, he indicated that the transient ischemic attack was attributed to an intercurrent cause. Specifically, he stated that the December 2002 stroke findings are most likely a result of atrial fibrillation with resultant emboli that do not appear to have resulted in permanent neurological deficits. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran is competent to report having experienced symptoms of fatigue, sleepiness, and lack of energy since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his transient ischemic attack. Additionally, he is not competent to provide a nexus opinion. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials 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, the Board gives more probative weight to the January 2020 VA examination. For these reasons, the Board finds that the weight of the evidence is against finding that the Veteran has current residuals of a transient ischemic attack and that the December 2002 transient ischemic attack is related to active service. The claim for service connection for residuals of a transient ischemic attack is denied. REASONS FOR REMAND Having reviewed the record, the Board finds remand is warranted for the issues of service connection for left wrist carpal tunnel syndrome, a right foot disability, and a skin condition. With respect to left wrist carpal tunnel, remand is warranted for an addendum opinion. The Veteran was afforded a VA examination in January 2020. The January 2020 VA examiner opined that the Veteran’s left carpal tunnel syndrome was not caused by an inservice event or aggravated by service-connected right carpal tunnel syndrome, based on review of service treatment records and medical literature. Remand is warranted for an addendum opinion for several reasons. First, the examiner did not provide an opinion on whether left carpal tunnel syndrome was at least as likely as not proximately due to right carpal tunnel syndrome, pursuant to remand directives. Additionally, in stating that his opinion was based on service medical records and medical literature, the examiner did not indicate whether lay statements were considered. Further, recitation of medical literature, without more, is not sufficient. Accordingly, on remand, the examiner, or an appropriate substitute, should provide an opinion on whether left carpal tunnel syndrome was at least as likely as not proximately due to right carpal tunnel syndrome. The examiner should consider lay statements and explain the underlying reasons for his conclusions. With respect to a right foot disability, remand is warranted for an addendum opinion. Though the Veteran was afforded an examination in January 2020, the VA examiner did not provide an opinion on whether it at least as likely as not began during active service, manifested within 1 year after discharge from service, or was noted during service with continuity of the same symptomatology since service. Accordingly, remand is warranted for compliance with remand directives. On remand, the examiner, or an appropriate substitute, should provide an opinion on whether any right foot disability (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. With respect to a skin condition, to include rosacea, remand is warranted for an addendum opinion. A January 2020 VA examiner determined that the Veteran’s current condition, rosacea was not caused by an in-service event. However, the Board finds that clarification is warranted as the examiner did not address whether the June 1972, January 1978, January 1985, December 1986, and January 1988 in-service notations of seborrheic dermatitis, sebaceous cysts, dry skin, and eczema were early manifestations of his current skin disorder. Of note, the Veteran testified in November 2018 that he had similar symptoms that would come and go since service. Accordingly, additional clarification is warranted. On remand, the examiner, or an appropriate substitute, should address whether the June 1972, January 1978, January 1985, December 1986, and January 1988 in-service notations of seborrheic dermatitis, sebaceous cysts, dry skin, and eczema were early manifestations of his current skin condition. Any outstanding VA treatment records from July 2020 to present and any outstanding treatment records from NAS Jacksonville should be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to present. 2. Obtain the Veteran’s federal treatment records (not service treatment records) from NAS Jacksonville. Document all requests for information as well as all responses in the claims file. 3. Obtain an addendum opinion from the January 2020 examiner, or an appropriate substitute, regarding whether the Veteran’s left carpal tunnel syndrome is at least as likely as not (a) related to service, including a February 1971 jeep accident that resulted in an abrasion of the left arm, (b) proximately due to service-connected right carpal tunnel syndrome, and (c) aggravated beyond its natural progression by service-connected right carpal tunnel syndrome. The examiner must consider lay statements and offer the underlying reasons for the conclusions. The examiner is advised that recitation of medical literature, without more, is not sufficient rationale. 4. Obtain an addendum opinion from the January 2020 examiner, or an appropriate substitute, regarding whether the Veteran’s right foot disability at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 5. Obtain an addendum opinion from the January 2020 examiner, or an appropriate substitute, regarding whether the Veteran’s skin condition at least as likely as not is related to service, including the June 1972, January 1978, January 1985, December 1986, and January 1988 in-service notations of seborrheic dermatitis, sebaceous cysts, dry skin, and eczema. (Continued on the next page)   The examiner should address whether the June 1972, January 1978, January 1985, December 1986, and January 1988 in-service notations of seborrheic dermatitis, sebaceous cysts, dry skin, and eczema were early manifestations of his current skin condition. Attention is invited to the Veteran’s November 2018 testimony that he had similar symptoms that would come and go since service. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vang, Stephanie 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.