Citation Nr: 21011869 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 08-39 006 DATE: March 2, 2021 ORDER Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is denied. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is denied. REMANDED Entitlement to service connection for a bladder condition, to include as secondary to the service-connected lumbar spine disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and anxiety disorder, and to include as secondary to the service-connected disabilities, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to an increased rating in excess of 30 percent for chronic left knee chondromalacia patella is remanded. Entitlement to an increased rating in excess of 40 percent for right knee degenerative joint disease, status post arthroscopic surgeries, is remanded. FINDINGS OF FACT 1. The Veteran’s carpal tunnel syndrome of the left upper extremity was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran’s carpal tunnel syndrome of the right upper extremity was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for carpal tunnel syndrome of the left upper extremity are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for carpal tunnel syndrome of the right upper extremity are not met. 38 U.S.C. §§ 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 served in the U.S. Army on active duty from May 1975 to May 1976. These issues are on appeal from October 2016, November 2016, and July 2018 rating decisions. The acquired psychiatric disorder claim was certified to the Board of Veterans’ Appeals (Board) as depression; however, the Board has expanded this issue based on the Veteran’s current psychiatric diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Subsequent to the May 2019 Statement of the Case (SOC), the Agency of Original Jurisdiction (AOJ) added pertinent medical evidence to the claims file. This new evidence was not reviewed in the first instance by the AOJ, and the Veteran and his representative have not waived initial AOJ review of this new evidence. However, this new evidence does not contain any mention of carpal tunnel syndrome. Therefore, the Board may proceed with the adjudication of the carpal tunnel syndrome issues. 1. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity. 2. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity. The Veteran asserts that his carpal tunnel syndrome of the bilateral upper extremities is related to active service. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of carpal tunnel syndrome of the bilateral upper extremities as evidenced by his VA Medical Center (VAMC) active problem list. Carpal tunnel syndrome is an organic disease of the nervous system, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was 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. The medical evidence of record shows that the Veteran first complained of right upper extremity and hand swelling in April 1997. See VA Rheumatology Notes Dated April 14, 1997. In 2003, the Veteran was first diagnosed with carpal tunnel syndrome. Also, in December 2003, he reported experiencing pain in his hands, neck, shoulders and knees for two years after being in a motor vehicle accident. See Birmingham VAMC Treatment Record Dated December 10, 2003. The April 1997 treatment is over two decades after his separation from service and two decades outside of the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of tingling and pain in his hands since service, the Board finds the 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 symptoms until 1997 and was not diagnosed with carpal tunnel syndrome until 2003. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, while the Veteran asserts that the reported symptoms were manifestations of carpal tunnel syndrome, he is not competent to determine that these symptoms were manifestations of carpal tunnel syndrome as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Board gives more probative weight to competent medical evidence. Service connection for carpal tunnel syndrome of the bilateral upper extremities 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 carpal tunnel syndrome of the bilateral upper extremities and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In this regard, the Veteran’s service treatment records (STRs) are silent for any complaint, treatment for or diagnosis of any carpal tunnel syndrome, as well as for any hand/wrist pain complaints. His May 1976 separation examination shows normal upper extremities and a neurologic system. Additionally, the Veteran has not provided a statement regarding an in-service occurrence. Further, the evidence of record does not contain a link between the Veteran’s current diagnosis and his active military service. A VA examination and medical opinion has not been provided, and the Board finds that one is warranted. A medical examination is necessary when there is (1) “competent evidence of a current disability or persistent or recurrent symptoms of a disability,” (2) evidence establishing an in-service “event, injury, or disease,” and (3) an “indication” that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2). Here, although the Veteran has a current disability, there is no evidence of an in-service event, injury or disease. Accordingly, the low threshold for a VA examination has not been met due to lack of an in-service occurrence. While the Veteran believes his carpal tunnel syndrome of the bilateral upper extremities is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377. The Veteran has not demonstrated that he has this medical expertise. Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. The Veteran’s claim for entitlement to service connection for carpal tunnel syndrome of the bilateral upper extremities is denied. REASONS FOR REMAND 1. Entitlement to service connection for a bladder condition, to include as secondary to the service-connected lumbar spine disability, is remanded. The Veteran’s VAMC active problem lists benign hypertrophy of the prostate without urinary obstruction as a current diagnosis. However, at the March 2009 VA spine examination, the Veteran reported urinary incontinence, urgency, and frequency. The Veteran’s STRs show a note in December 1975, where he complained of frequent urination. At the time he was assessed as having non-specific urethritis. The evidence of record also suggests that the Veteran’s current bladder condition may be related to his service-connected lumbar spine disability. At the March 2009 VA spine examination, the VA examiner responded “no” when asked if the etiology of these urinary symptoms was unrelated to the claimed spine disability. To date, the Veteran has not been provided a VA examination for this claim. The Board finds that upon remand, the Veteran must be afforded a VA examination and medical opinion. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and anxiety disorder, and to include as secondary to the service-connected disabilities, is remanded. In a VA Form 21-4138 submitted in February 2017, the Veteran argued that his service-connected bilateral knee and lumbar disabilities cause him to suffer from depression. In June 2020, a private psychologist diagnosed the Veteran with depressive disorder and anxiety disorder. The psychologist found that, “It is likely that the depression and anxiety are, at least in part, due to the effects from his back and knee problems.” The psychologist stated that he reviewed “received reports,” but it is unclear what these reports included. To date, the Veteran has not been afforded a VA medical opinion for this claim. The Board finds that a VA medical opinion must be obtained before this claim can be decided on its merits.   3. Entitlement to service connection for hypertension is remanded. 4. Entitlement to service connection for a left shoulder disability is remanded. 5. Entitlement to service connection for a right shoulder disability is remanded. 6. Entitlement to an increased rating in excess of 30 percent for chronic left knee chondromalacia patella is remanded. 7. Entitlement to an increased rating in excess of 40 percent for right knee degenerative joint disease, status post arthroscopic surgeries, is remanded. Subsequent to the April 2019 SOC and February 2019 Supplemental SOC (SSOC), the AOJ added pertinent medical evidence to the claims file. The AOJ did not review this new evidence in the first instance. The Veteran was sent a letter in November 2019, asking if he waived initial AOJ review of this new evidence. The Veteran did not respond, and thus, in accordance with the terms of the letter, the issues are being remanded for the AOJ to review this new evidence in the first instance. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for his bladder condition, to include urinary incontinence, urgency, and frequency. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the bladder condition at least as likely as not related to service, including the December 1975 STR complaint of frequent urination? Is the bladder condition at least as likely as not proximately due to the service-connected lumbar spine disability? Is the bladder condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected lumbar spine disability? Provide a rationale to support the opinions. 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s acquired psychiatric disorder, currently diagnosed as depressive disorder and anxiety disorder. The examiner must review the claims file, to include the June 2020 private psychological opinion. The examiner is asked to provide a response to the following: Is the acquired psychiatric disorder at least as likely as not related to service? Is it at least as likely as not that the acquired psychiatric disorder (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? Is the acquired psychiatric disorder at least as likely as not proximately due to a service-connected disability(ies)? Is the acquired psychiatric disorder at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability(ies)? Provide a rationale to support the opinions. 3. Readjudicate the issues on appeal, to include a review of all of the new evidence added to the record since the February 2019 SSOC and April 2019 SOC. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a SSOC and allow an appropriate period of time for response before the case is returned to the Board. SHAUNA M. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. N. Shannon, Associate 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.