Citation Nr: 21013386 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 12-04 121 DATE: March 9, 2021 ORDER Entitlement to service connection for right carpal tunnel syndrome, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for a psychiatric disorder for the purposes of establishing eligibility for medical treatment under 38 U.S.C. § 1702 is dismissed as moot. Entitlement to total convalescent evaluations due to lower extremity amputations and ischemic heart disease and coronary artery disease is denied. REMANDED Entitlement to an evaluation in excess of 20 percent for a right medial nerve disability is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for left carpal tunnel syndrome, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 16, 2009, is remanded. FINDINGS OF FACT 1. The Veteran’s right carpal tunnel syndrome did not have its onset in service, is not otherwise the result of a disease or injury incurred in service, and was not caused or aggravated by a service-connected disability. 2. The issue of entitlement to service connection for a psychiatric disorder for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 is moot. 3. Service connection for left and right lower extremity amputations was not in effect as of August 2007 and October 2010 respectively, and a 100 percent rating for lower extremity amputations has been in effect since November 2, 2010. 4. Service connection for ischemic heart disease and coronary artery disease was not in effect in April 1997, and the Veteran did not have heart surgery requiring convalescence between when service connection went into effect in August 2002 and when the rating was increased to 100 percent in April 2011. CONCLUSIONS OF LAW 1. The criteria for service connection for right carpal tunnel syndrome, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The appeal on the issue of a psychiatric disorder for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 is dismissed as moot. 38 U.S.C. §§ 1702, 1710; 38 C.F.R. §§ 3.384, 17.36. 3. The criteria for total convalescent ratings for lower extremity amputations and ischemic heart disease and coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1969 to May 1971 and from September 1990 to April 1991. This claim was previously before the Board in February 2017, at which time the Board remanded the remaining issues for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Service Connection To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for right carpal tunnel syndrome, to include as secondary to service-connected disabilities The service treatment records (STRs) do not show any complaints, treatment, or diagnoses related to carpal tunnel syndrome. The Veteran had a VA examination in February 2008. An electrodiagnostics study showed mild left carpal tunnel syndrome. A January 2011 VA examiner opined that carpal tunnel syndrome was not a complication of diabetes because the diagnosis of carpal tunnel syndrome was prior to the diagnosis of diabetes mellitus. Furthermore, carpal tunnel syndrome was not worsened or increased by the Veteran’s diabetes. The Veteran had a VA examination in December 2017 at which he was diagnosed with right carpal tunnel syndrome. In July 2020 a VA examiner opined that the right carpal tunnel syndrome was not caused or aggravated by any service-connected disabilities, including bilateral lower extremity amputations, ischemic heart disease and coronary artery disease, recurrent dislocation of the left shoulder, a right medial nerve injury, type II diabetes mellitus, and a left arm scar. It was noted that carpal tunnel syndrome is caused by pressure on the medial nerve at the wrist. This nerve travels through a small tunnel, formed by small bones in the wrist called the carpal tunnel. While the Veteran has made statements to the effect that he feels that his right carpal tunnel syndrome is related to service or to a service-connected disability, he is not considered competent to make such a determination, because this is a medical question. His statements on etiology are therefore afforded little, if any, probative value. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Probative value is given to the opinion of the July 2020 examiner because it was based on a review of the record and consideration of the disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“…[M]ost of the probative value of a medical opinion comes from its reasoning” and the Board “must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.”). There are no competent opinions of record indicating a relationship between the right carpal tunnel syndrome and the Veteran’s service or a service-connected disability. Because the evidence preponderates against the claim of service connection for th Veteran’s right carpal tunnel syndrome, to include as secondary to a service-connected disability, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. 2. Entitlement to service connection for a psychiatric disorder for the purposes of establishing eligibility for treatment The Veteran had service during the Vietnam era. See 38 C.F.R. § 3.2(f) (the wartime period for the Vietnam era is defined as beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period. The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases). Under 38 U.S.C. § 1702(a), any veteran of the Vietnam era who develops an active psychosis within two years of discharge from active service and before May 8, 1977, shall be deemed to have incurred such disability in the active service. As the Veteran has been awarded service connection for posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood, the issue of service connection for a mental illness for purposes of establishing eligibility for VA treatment under 38 U.S.C. § 1702 is moot. See 38 C.F.R. § 17.37(b). The Veteran will be afforded equal or greater access to VA treatment by virtue of his now-established award of service connection for a psychiatric disability. See 38 U.S.C. § 1710; 38 C.F.R. § 17.36. As such, the appeal as to this issue is dismissed. See Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). Temporary Total Evaluations due to Convalescence 3. Entitlement to temporary total evaluations due to convalescence for lower extremity amputations and heart surgery Under 38 C.F.R. § 4.30, a temporary total disability rating will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more. An extension of 1, 2, or 3 months beyond the initial 3 months may be granted. Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon request based on (2) and (3) above. The Court of Appeals for Veterans Claims has held that notations in the medical record as to the veteran’s incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291, 296-297 (1995); Felden v. West, 11 Vet. App. 427, 430 (1998). Furthermore, the Court has noted that the term “convalescence” does not necessarily entail in-home recovery. The Veteran is seeking temporary total evaluations due to right and left lower extremity amputations and heart surgery. The record shows that he underwent a left lower extremity amputation in August 2007 and a right lower extremity amputation in October 2010. Service connection has been granted as of June 16, 2009, for the left lower extremity amputation and November 2, 2010, for the right lower extremity amputation. A temporary total evaluation cannot be granted for the left lower extremity amputation because service connection was not in effect in August 2007. Regarding the right lower extremity, a 100 percent rating has been in effect for the amputation as of November 2, 2010, the date of the claim for service connection. Therefore, a temporary 100 percent rating cannot be granted since a total rating for the disability has been in effect since the date of the claim. The claim for temporary total evaluations due to convalescence for lower extremity amputations must therefore be denied. See 38 C.F.R. § 4.30. Service connection is in effect for ischemic heart disease and coronary artery disease, status post coronary artery bypass, with an effective date of August 9, 2002. The Veteran underwent a coronary artery bypass graft in April 1997. The record does not show that he had heart surgery requiring convalescence between when service connection went into effect and when the rating was increased to 100 percent in April 2011. Therefore, a temporary total evaluation due to convalescence for heart surgery must also be denied. See 38 C.F.R. § 4.30. REASONS FOR REMAND VA treatment records to February 2020 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from February 2020 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 1. Entitlement to an evaluation in excess of 20 percent for a right medial nerve disability is remanded. The Veteran last had a VA examination in December 2017, and based on the diagnosis of right carpal tunnel syndrome, it is not clear whether the examination included the service-connected right medial nerve disability. The prior VA examination was in January 2015. In light of the state of the record, the Board finds that the Veteran must be afforded a contemporaneous VA examination to assess the current severity of the right medial nerve disability. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran’s pertinent medical history). 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. The STRs do not show any complaints, treatment, or diagnoses related to hypertension. However, at the April 1991 discharge examination the blood pressure was 155/100. An April 1997 letter from a private treating cardiologist notes that the Veteran had a history of hypertension. Blood pressure was 178/90 at May 2002 private treatment, and the Veteran was noted to have uncontrolled high blood pressure. At July 2004 private treatment the Veteran’s blood pressure was 160/88. The Veteran wrote in April 2008 that he was diagnosed with high blood pressure in October 1994. August 2007 VA treatment records state that the Veteran had a history of hypertension. A January 2011 VA examiner opined that the Veteran’s hypertension was not a complication of diabetes because the diagnosis of hypertension pre-dated the diagnosis of diabetes mellitus. Furthermore, hypertension was not increased or worsened by diabetes. The Veteran had a VA examination in November 2017 at which it was noted that he was not diagnosed with or treated for hypertension during service. He had elevated blood pressure readings after service and was started on medication for it. The blood pressure readings at the examination were 130/74, 134/80, and 132/76. The examiner opined that it was less likely than not that the Veteran’s hypertension had its onset in service or is otherwise related to service because he did not have any evidence of elevated blood pressure readings in service and did not qualify for a diagnosis of hypertension based on the VA criteria guidelines. The examiner also opined that there was no evidence that any of the service-connected disabilities caused or aggravated hypertension. The Veteran had essential hypertension, which is common and has an idiopathic etiology. The November 2017 examiner’s opinion cannot be given probative value because the examiner does not appear to have considered the blood pressure reading from the April 1991 discharge examination when writing that there was no evidence of elevated blood pressure during service. Therefore, an addendum to the opinion must be obtained before the claim can be decided on the merits. 3. Entitlement to service connection for left carpal tunnel syndrome, to include as secondary to service-connected disabilities In September 2015 the Board remanded the claim in order for the Veteran to be scheduled for a VA examination and opinion that was to include left carpal tunnel syndrome. The Veteran had an VA examination in December 2017, and the July 2020 opinion on right carpal tunnel syndrome did not include an opinion on left carpal tunnel syndrome. Compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A medical opinion on the etiology of left carpal tunnel syndrome must be obtained before the claim can be decided on the merits. 4. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to service-connected disabilities, is remanded. 5. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to service-connected disabilities, is remanded. 6. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to service-connected disabilities, is remanded. At a May 2009 VA examination the Veteran was diagnosed with left median neuropathy. The Veteran had a VA examination in May 2013 at which he was diagnosed with peripheral vascular disease, for which he had undergone amputations of the lower extremities. The etiology was vascular damage secondary to atherosclerosis plaque formation at the artery endothelium. The Veteran had another VA examination in January 2015 at which he was diagnosed with peripheral vascular disease for which he had undergone left and right below the knee amputations. The examiner opined that it was less likely than not that diabetes mellitus, type II, or any other service-connected disability caused any peripheral vascular disease. The Veteran had peripheral vascular disease prior to the onset of diabetes, and his other service-connected conditions do not cause peripheral vascular disease. The Veteran had a history of smoking, which at least as likely caused the peripheral vascular disease. The examiner also opined that it was less likely than not that the Veteran’s peripheral vascular disease was aggravated by diabetes mellitus, type II, or any other service-connected disability. Surgical intervention was required prior to the onset of diabetes. Furthermore, diabetes was considered well-controlled without treatment. The January 2015 examiner also noted that the Veteran did not complain of left upper extremity peripheral neuropathy symptoms. Therefore, it was less likely than not that the left upper extremity peripheral neuropathy was related to or had its onset during service, or was caused or aggravated by a service-connected disability. In July 2015 the Board remanded the issues of service connection for peripheral neuropathy in order for the Veteran to be scheduled for a VA examination that was to include opinions on etiology, including for the remaining portions of the lower extremities. The November 2017 peripheral nerves condition examination did not include any discussion of or diagnoses of peripheral neuropathy. Furthermore, the July 2020 examiner’s opinion regarding right carpal tunnel syndrome did not include peripheral neuropathy. Therefore, the issues related to peripheral neuropathy must be remanded in order for the Veteran to be scheduled for a new examination. See Stegall, 11 Vet. App. at 271. 7. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected disabilities, is remanded. The issue of entitlement to service connection for a sleep disorder was remanded by the Board in September 2015 in order for the Veteran to be scheduled for a VA examination. He was not subsequently scheduled for an examination for a sleep disorder. Therefore, the claim for service connection for a sleep disorder must be remanded in order for the Veteran to be scheduled for an examination. See Stegall, 11 Vet. App. at 271. 8. Entitlement to a TDIU prior to June 16, 2009, is remanded. The assignment of a disability rating for the Veteran’s right medial nerve disability may impact whether the Veteran satisfies requirements for a TDIU prior to June 16, 2009. As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran’s TDIU claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). The matters are REMANDED for the following action: 1. Obtain VA treatment records from February 2020 to the present. 2. Thereafter, schedule the Veteran for an appropriate VA examination to ascertain the severity of the right medial nerve disability. The entire claims file must be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted, and the results reported. The VA examiner must also address the extent of functional and industrial impairment due to the Veteran’s disability being examined and furnish a full description of the effects of the service-connected disability upon the Veteran’s ordinary activity, including employment. All opinions must be supported by a complete rationale. 3. Obtain an addendum to the November 2017 examiner’s opinions regarding hypertension. The Veteran’s claims folder should be provided to the reviewer prior to completion of the opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is related to service or was incurred within a year of service. The examiner must also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was proximately due to or aggravated beyond its natural progression by the type II diabetes mellitus, bilateral lower extremity amputations, ischemic heart disease/coronary artery disease, left shoulder recurrent dislocation, right medial nerve injury, and left arm scar. The examiner should discuss the blood pressure reading from the Veteran’s April 1991 discharge examination. The examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 4. Obtain an addendum to the July 2020 examiner’s opinions regarding left carpal tunnel syndrome. The Veteran’s claims folder should be provided to the reviewer prior to completion of the opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left carpal tunnel syndrome is related to service. The examiner must also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left carpal tunnel syndrome was proximately due to or aggravated beyond its natural progression by the type II diabetes mellitus, bilateral lower extremity amputations, ischemic heart disease/coronary artery disease, left shoulder recurrent dislocation, right medial nerve injury, or left arm scar. The examiner should assume a current diagnosis of left carpal tunnel syndrome since there was a diagnosis during the claims period. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of peripheral neuropathy. The examiner must be given full access to the Veteran’s complete VA claims file and the Veteran’s electronic records for review. The examiner should determine whether there has been peripheral neuropathy in the remaining portions of the Veteran’s lower extremities since he submitted his claim on November 2, 2010. In addition, the examiner should determine whether there has been left upper extremity peripheral neuropathy separate from carpal tunnel syndrome since the Veteran submitted his claim in April 2009. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left or right lower extremity peripheral neuropathy, or left upper extremity peripheral neuropathy other than carpal tunnel syndrome, is related to an in-service injury, event, or disease. The examiner must also opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left or right lower extremity peripheral neuropathy, or left upper extremity peripheral neuropathy other than carpal tunnel syndrome, was proximately due to or aggravated beyond its natural progression by the type II diabetes mellitus, bilateral lower extremity amputations, ischemic heart disease/coronary artery disease, left shoulder recurrent dislocation, right medial nerve injury, or left arm scar. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a sleep disorder. The examiner must be given full access to the Veteran’s complete VA claims file and the Veteran’s electronic records for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that a sleep disorder, is related to an in-service injury, event, or disease. The examiner must also opine whether it is at least as likely as not (50 percent or greater probability) that a sleep disorder was proximately due to or aggravated beyond its natural progression by the type II diabetes mellitus, bilateral lower extremity amputations, ischemic heart disease/coronary artery disease, left shoulder recurrent dislocation, right medial nerve injury, or left arm scar. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.