Citation Nr: 21005916 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 07-17 032A DATE: February 2, 2021 ORDER Service connection for a bilateral eye disability is denied. Service connection for a left hand disability is denied. Service connection for a left wrist facture is denied. Service connection for bilateral carpal tunnel syndrome is denied. REMANDED Entitlement to service connection for a left shoulder torn rotator cuff is remanded. Entitlement to a rating in excess of 10 percent for capsulitis, right tars-metatarsal articulation, stress reaction, right third metatarsal, previously claimed as stress fracture of the right foot (right foot disability) is remanded. FINDINGS OF FACT 1. The Veteran’s current bilateral eye symptoms have been attributed to refractive errors and there is no evidence of aggravation or an additional disability of the eyes superimposed on such refractive errors that is related to military service. 2. The preponderance of the evidence is against finding that the Veteran’s left hand disability manifested in service or within one year thereafter, or that it is otherwise causally or etiologically related to his military service. 3. The preponderance of the evidence is against finding that the Veteran’s left wrist fracture manifested in service or within one year thereafter, or that it is otherwise causally or etiologically related to his military service. 4. The preponderance of the evidence is against finding that the Veteran’s bilateral carpal tunnel syndrome manifested in service or within one year thereafter, or that it is otherwise causally or etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left hand disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for left wrist fracture are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for bilateral carpal tunnel syndrome are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Marine Corps from February 1979 to April 1982. The issues are on appeal from December 2005 and September 2008 rating decisions. In January 2010, the Veteran testified before the undersigned at a Board of Veterans’ Appeals (Board) hearing. A transcript of the hearing has been associated with the record. The issues were previously before the Board in December 2010, October 2013, November 2017, and June 2019. Service Connection Service connection may be granted for a disability resulting from an injury, event, or disease 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). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a disease which constitutes a “chronic” disease listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker, 708 F.3d at 1331. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). Additionally, where certain chronic diseases, such as degenerative arthritis of cervical spine and organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Service connection for a bilateral eye disability There is no evidence of record, VA or private, showing that the Veteran has been diagnosed with a bilateral eye disability. Rather, medical evidence shows the Veteran suffers from worsening of vision and refractive error. In specific regard to service connection for eye disabilities, the Board observes that service connection is not generally established for refractive error of the eye as it is not a disease or injury within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303 (c), 4.9. Refractive error of the eyes includes myopia, presbyopia, and astigmatism. Id. Further, absent aggravation or superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Thus, in the absence of some event or trauma, a refractive error is a constitutional or development abnormality for which compensation benefits may not be authorized. 38 C.F.R. §§ 3.303 (c), 4.9 (congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation); see also VAOPGCPREC 82-90. VA’s General Counsel issued an opinion interpreting 38 C.F.R. § 3.303 (c) to mean that that service connection may be granted for diseases of congenital, developmental, or familial origin if the evidence as a whole shows that manifestations of the disease in service constituted “aggravation” of the disease within the meaning of applicable VA regulations. VAOPGCPREC 67-90. The VA General Counsel also has issued an opinion that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, based on the evidence of record, the Board finds that service connection for bilateral eye disorder is not warranted as the Veteran's eye disorders are considered refractive errors. The Veteran was afforded a VA examination in December 2019. The examiner found the Veteran suffered from no eye condition other than congenital or developmental errors of refraction. The Veteran reported that he used over the counter spectacles for vision correction (near and distance), and that he experienced problems with seeing well and eye twitching. Historically, although the Veteran had used Visine, he had not used any other ocular medications or eyedrops. The Veteran did not complain of any other eye conditions during the examination. Moreover, there is no evidence of an event or trauma to the eyes in service, and thus, the Veteran’s refractive errors were not aggravated or subject to a superimposed disease or injury during her military service that resulted in additional disability. In sum, as the Veteran’s current bilateral eye disorder are considered congenital or developmental defects of the eyes and not a disease or injury within the meaning of applicable legislation relating to service connection, service connection may not be allowed. Additionally, with respect to the Veteran’s contentions that he has a current bilateral eye disorder related to her military service, as a lay person, she is not competent to render such a complex medical opinion. In this regard, she is competent to describe her current eye symptoms; however, as the cause of a disability of the eyes involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, she is not competent to render such a complex medical opinion. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, service connection for bilateral eye disability is not warranted. As the preponderance of the evidence is against the Veteran’s claims, the doctrine of reasonable doubt is not applicable. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Service connection for a left hand disability 3. Service connection for a left wrist fracture 4. Service connection for bilateral carpal tunnel syndrome The Veteran seeks service connection for a left hand disability, left wrist fracture, and bilateral carpal tunnel syndrome. Specifically, the Veteran reports that during active duty, he injured his left hand and wrist when he jumped and landed over his left hand, and was subsequently diagnosed with a strain. Additionally, he first began to feel bilateral carpal tunnel syndrome symptoms when shooting rifles at the shooting range. Initially, the Board notes that the Veteran is diagnosed with interphalangeal joint degenerative changes of the left hand, degenerative changes of the left wrist, and bilateral carpal tunnel syndrome. Therefore, the Veteran has current disabilities. Moreover, arthritis and organic diseases of the nervous system are enumerated conditions under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. However, the disabilities were not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Turning to the evidence, service treatment records are silent regarding a wrist or neuropathy disability. However, the service treatment records reveal an April 1979 complaint of bilateral hand pain and an August 1980 note indicating a possible left hand fracture, and he was ultimately diagnosed with stretched ligaments. Importantly, the Veteran’s March 1982 separation examination is silent for complaints of or diagnosis for a left hand disability, left wrist disability, or bilateral carpal tunnel. Post-separation, VA treatment records demonstrate continuous complaints of his left hand experiencing paresthesias, numbness, tingling, giving way, and falling asleep. Notably, in March 2005 and May 2005, the Veteran reported experiencing these symptoms for 10 years, which would been approximately 1995, which would have been 13 years after his discharge from active service, and 12 years outside the presumptive period. Moreover, the Board finds any reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he did not report any symptoms associated with these disabilities upon discharge. Moreover, in August 2006, the Veteran reported injuring his wrist several years ago, but never seeking x-rays or treatment for the injury, and in September 2006, the Veteran reported his left wrist hurt after working for many years. In February 2012, the Veteran underwent a private evaluation for the Texas Workforce Commission. Here, he complained of joint pain in his hands and wrists and attributed the joint pains to his prior work with manual labor and lawn maintenance. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Service connection may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s left hand disability, left wrist fracture, and bilateral carpal tunnel syndrome and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board notes the Veteran was afforded numerous VA examinations for his left wrist and hand disabilities. However, per the February 2011 examiner’s opinion, a rheumatology examination was ordered by the Board but never followed through with, and therefore, the Board finds these examinations as less than probative. In December 2019, the Veteran was afforded VA examinations for his left hand, left wrist, and bilateral carpal tunnel syndrome. Importantly, the examiner explained that a rheumatology examination was not needed, and that the VA examinations conducted by him were sufficient for medical history, in-person examination, and etiology opinion for these three disabilities. The examiner confirmed diagnoses of degenerative arthritis of the left hand and left wrist. The examiner opined that neither disability was due to active duty nor manifested within a year of separation. As rationale, the examiner explained that the Veteran’s service treatment records were silent, and initial diagnosis of a left wrist disability was not provided until 2004 and initial diagnosis of a left hand disability was not provided until 2011. Furthermore, after providing lengthy medical text on degenerative arthritis, the examiner opined that each disability was more likely than not due to senescence or aging. The examiner noted that the record reflected the Veteran had worked on and off in landscaping and construction for about 30 years, which included heavy use of a sledgehammer. As the Veteran’s diagnosis for wrist and hand degenerative arthritis affected both right and left wrists and hands, this was indicative of the left wrist disability and left hand fracture being more likely than not due to senescence or aging. Finally, regarding bilateral carpal tunnel syndrome, the examiner confirmed a diagnosis of bilateral carpal tunnel syndrome, status post left carpal tunnel surgical release. The examiner opined that bilateral carpal tunnel syndrome was less likely than not due to active duty as his service treatment records were silent and the Veteran was not first diagnosed with bilateral carpal tunnel syndrome until 2002. Additionally, after providing medical literature on bilateral carpal tunnel syndrome, the examiner noted that the Veteran had multiple risk factors for the development of bilateral carpal tunnel syndrome such as workplace factors, including repetitive hand and wrist use, forceful hand and wrist use, work with vibrating tools, sustained wrist or palm pressure, and prolonged wrist extension and flexion. As noted above, the Veteran had worked in construction and landscaping for about 30 years, and this included heavy use of a sledgehammer for years. 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). The Board has considered the Veteran’s lay statements regarding etiology including shooting rifles at the shooting range during training, landing on his left hand after falling, and carrying heavy ammunition. However, although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the disorder, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds the medical evidence, cumulatively, is more probative than the Veteran’s lay statements. His service treatment records reveal an April 1979 complaint of hand pain and an August 1980 note indicating a possible left hand fracture where he ultimately diagnosed with stretched ligaments. However, the Veteran’s March 1982 separation examination is silent for complaints of or diagnosis for a left hand disability, left wrist disability, or bilateral carpal tunnel syndrome. Post-separation, the Veteran’s VA medical records show self-reports identifying left hand disability symptoms starting in 1995, or 13 years after separation. The Veteran also reported to a private evaluator for the Texas Workforce Commission that his left hand and wrist pain was due to his prior jobs as a laborer. Finally, as noted by the December 2019 VA examiner, the Veteran was not diagnosed with bilateral carpal tunnel syndrome until 2002, a left wrist disability until 2004, and a left hand disability until 2011. Respectively, these diagnoses dates are each more than a decade after separation from active duty. Based on the evidence of record, to include the Veteran’s statements, the Board finds that a left wrist disability, a left hand disability, and bilateral carpal tunnel syndrome was not present during active duty, was not continuously present from discharge to the present, and began years after discharge. The Board further finds that there is no competent evidence of record linking the current left wrist disability, left hand disability, and bilateral carpal tunnel syndrome to active duty. Accordingly, service connection for a left wrist disability, left hand disability, and bilateral carpal tunnel syndrome is not warranted. As the preponderance of the evidence is against the Veteran’s claims, the doctrine of reasonable doubt is not applicable. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 56. REASONS FOR REMAND 1. Service connection for a left shoulder torn rotator cuff (left shoulder disability) is remanded. The Veteran was afforded a VA examination for his left shoulder disability in December 2019. He was diagnosed with left rotator cuff tear and left degenerative arthritis of the acromioclavicular joint. The examiner opined that the left shoulder disability was less likely than not due to service and had not manifested within a year of separation. As rationale, the examiner simply stated that the Veteran’s service treatment records were silent for a left shoulder disability and that a left shoulder disability was not diagnosed until 2006. The Board finds the rationale provided for the examiner’s negative etiology opinion is inadequate. The examiner did not address the Veteran’s statement that he may have hurt his left shoulder after falling on his left hand/wrist and after carrying heavy ammunition during active duty and his current left shoulder disability. Additionally, the absence of evidence in service treatment records is an insufficient basis, by itself, for a negative opinion. On remand, an addendum medical opinion should be obtained from the same examiner who conducted the December 2019 VA examination. The examiner is cautioned that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. 2. Entitlement to a disability rating in excess of 10 percent for right foot disability is remanded. The Veteran was afforded a VA examination for his right foot disability in December 2019. The examiner noted that the Veteran denied any functional loss or impairment of the right foot, to include due to flare-ups or repetitive use. However, this does not preclude the examiner from completing the examination in full. When asked to discuss pain, the examiner noted that pain was observed but did not contribute to functional loss. The examiner was instructed by the VA examination to explain why pain did not contribute to functional loss. No response was provided. The Board notes that pain of the right foot was also observed on passive range of motion testing. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). On remand, an addendum medical opinion discussing why pain did not contribute to functional loss, as dictated by the VA examination. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the same VA examiner who conducted the December 2019 VA examination for the Veteran’s left shoulder disability, or from another examiner with similar expertise. The examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent or greater) that the left shoulder disability (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. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles must be provided. If an examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would. 2. Obtain an addendum opinion from the same VA examiner who conducted the December 2019 VA examination for the Veteran’s service-connected right foot disability, or from another examiner with similar expertise. The examiner is asked to explain why pain caused by the right foot disability does not cause functional loss. A complete rationale must be provided for any opinions provided. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles must be provided. If an examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would. (Continued on next page) 3. Readjudicate the appeals. J. N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.