Citation Nr: 21021276 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-36 173 DATE: April 12, 2021 ORDER Service connection for right knee osteoarthritis is denied. Service connection for left knee osteoarthritis is denied. New and material evidence was received within one year of a September 2011 rating decision, and a claim of service connection for bilateral hand numbness and tingling is therefore reconsidered. Service connection for cervical radiculopathy is denied. Service connection for carpal tunnel syndrome, claimed as bilateral hand numbness and tingling, is granted. FINDINGS OF FACT 1. The Veteran’s right knee osteoarthritis is not related to service and did not manifest within one year of separation from active duty. 2. The Veteran’s left knee osteoarthritis is not related to service and did not manifest within one year of separation from active duty. 3. Evidence received within one year of the September 2011 rating decision relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for bilateral hand numbness and tingling. 4. The Veteran does not have a current disability of cervical radiculopathy. 5. Carpal tunnel syndrome arose during a period of active duty for training. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee osteoarthritis are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for left knee osteoarthritis are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). 3. Evidence received within one year of a September 2011 rating decision is new and material; therefore, the Veteran’s original claim of entitlement to service connection for bilateral hand numbness and tingling is reconsidered. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2020). 4. The criteria for service connection for cervical radiculopathy are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 5. The criteria for service connection for carpal tunnel syndrome, claimed as bilateral hand numbness and tingling, are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1981 to December 1984, from September 2001 to September 2002, and from February 2003 to June 2003. He had periods of active duty for training (ACDUTRA) from April 2, 2009 to April 3, 2009; April 6, 2009 to April 10, 2009; April 13, 2009 to April 17, 2009; February 22, 2010 to March 5, 2010; and June 10, 2010 to June 26, 2010. This appeal is before the Board of Veterans’ Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. The issues currently on appeal were originally remanded by the Board in a January 2019 decision. The decision referred for adjudication a claim to revise a September 2011 rating decision on the basis of clear and unmistakable error (CUE), specifically the original denial of service connection for bilateral hand numbness. The decision remanded the bilateral hand numbness and cervical radiculopathy issues as inextricably intertwined with this referred claim. The decision also remanded the Veteran’s knee claims with instruction to provide him with a VA examination. He underwent a VA examination in July 2019. In October 2020, the Board again remanded the remaining issues on appeal with instruction to adjudicate the CUE claim and to obtain an addendum medical opinion regarding his knees. He underwent an additional VA examination in December 2020, and the January 2021 supplemental statement of the case denied the CUE claim. A supplemental statement of the case may not be used to adjudicate a claim in the first instance, and this adjudication is therefore improper. See 38 C.F.R. § 19.31. Because the Board herein finds that the September 2011 rating decision never became final, the Veteran’s CUE claim is rendered moot. The Board is therefore satisfied that the instructions in its remands of January 2019 and October 2020 have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of service connection, the abovementioned disease or injury must be incurred or aggravated in the active military, naval or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The term “active military, naval or air service” is further defined as (1) active duty or a period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (2) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C. § 101(24). Service connection for disability arising from INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in the line of duty, (with the exceptions for acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, not pertinent here). See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). When determining service connection, a presumption of soundness ordinarily applies. 38 C.F.R. § 3.304(b). Pursuant to such presumption, a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). When a claimant has achieved veteran status through a prior period of active duty, the presumption of soundness applies to periods of ACDUTRA where an entrance examination is conducted and no defects found. Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for right knee osteoarthritis 2. Entitlement to service connection for left knee osteoarthritis The Veteran claims service connection for osteoarthritis of the bilateral knees. Active duty service treatment records reflect that a November 2001 examination noted an abnormality in the knees, specifically status post left knee medial meniscectomy in 1992 by history. The abnormality was noted again in a May 2003 examination report, and in the accompanying report of medical history the Veteran reported left lower extremity extreme knee pain and a history of left knee surgery. Reserve service treatment records reflect that no knee abnormality was noted at a May 2006 examination report, but in the accompanying report of medical history he again reported a history of left knee surgery. In July 2006 he reported constant left knee pain, especially when running. He was placed on a temporary physical profile. In August 2009 he reported right knee pain. He was placed on a temporary physical profile. VA treatment records reflect that in December 2011 the Veteran reported right knee buckling to his physical therapist. In May 2013 he reported right knee pain and was diagnosed with suspected degenerative joint disease. In October 2013 he presented to the emergency room reporting left knee medial aspect tenderness over the prior several days after sleeping in the sitting position while caring for a hospitalized family member. He was diagnosed with signs of a medial collateral ligament strain. X-rays showed degenerative changes to the medial compartment of the knee and vascular calcifications. In February 2014 he reported left knee pain. He reported continued knee pain in May 2014. The Veteran underwent a VA examination in May 2014. He reported constant bilateral knee pain. He was diagnosed with bilateral knee osteoarthritis. The examiner opined that the disability was less likely than not related to service. This opinion was based on the rationale that there was no evidence that he continued with medical care for his knee conditions within 1-2 years after being released from active service in May 2003. The examiner noted a history of left knee arthroscopy in 1995 while he was a civilian. The examiner further stated that the disability was considered part of the normal aging process in a patient the Veteran’s age. VA treatment records reflect that in October 2014 the Veteran reported left knee pain and giving way. X-rays showed bilateral degenerative changes and small joint effusions. An MRI showed history of partial meniscectomy, rule out anterior cruciate ligament tear, degenerative joint disease, popliteal cyst, joint effusion, and lateral collateral ligament sprain. At a November 2014 orthopedic consultation, he reported constant left knee pain with instability. He was diagnosed with bilateral degenerative changes and was prescribed a corticosteroid injection. In March 2015 he reported knee pain. In April 2015 he reported left knee pain after slipping. X-rays showed progressive knee osteoarthritis and suspected soft tissue swelling and joint effusion. In his June 2015 notice of disagreement, the Veteran stated that medical records reflected that he received treatment for both knees while on ACDUTRA. VA treatment records reflect that in March 2017 the Veteran reported left knee pain. In August 2018 he reported use of a knee brace and cane. He was issued replacement knee braces in January 2019. The Veteran underwent another VA examination in July 2019. He reported that he had knee surgery in 1995 for a meniscal tear. He reported bilateral knee pain. He was diagnosed with osteoarthritis of the bilateral knees and left knee medial meniscectomy with residual anterior horn tear of the lateral meniscus. The examiner opined that the knee disabilities were less likely than not related to service. This opinion was based on the rationale that at an August 2009 periodic health assessment, the Veteran reported bilateral knee pain beginning one year prior, which would mean 2008 and not during a period of duty. The examiner explained that the bilateral knee degenerative changes are related to the normal aging process, while the left knee meniscal tear is a condition usually associated with an acute trauma. There is no evidence of a traumatic injury during active duty that would explain his meniscal tear. The Veteran underwent another VA examination in December 2020. He was diagnosed with degenerative arthritis of the bilateral knees and a history of a left knee meniscal tear. He reported that his bilateral degenerative joint disease was related to service, but his left knee meniscectomy was civilian. The examiner opined that the disabilities were less likely than not related to service. This opinion was based on the rationale that there was no degenerative joint disease affecting both knees seen during service or within one year of separation. His left knee meniscectomy was in 1995 and there was no indication that it was related to service. He reported knee pain in May 2003, but there was no medical evidence of treatment during that year or in the year thereafter. The examiner explained that a brief comment rendered by the patient is not sufficient to support that he had a knee condition related to service in absence of any medical treatment, radiologic studies, or a diagnosis. The examiner stated that his bilateral knee degenerative condition is due to aging and obesity. The Board finds that the evidence weighs against a finding that the Veteran’s knee disabilities are related to service or manifested within one year of separation from active duty. There is no evidence in the record that the Veteran’s left knee meniscal condition is related to service. He underwent surgery more than a decade after his first period of active duty, and the resulting abnormality was noted at his November 2001 examination in his second period of active duty and thereafter. In May 2003 he reported a history of extreme knee pain, but there is no evidence that this report reflects any symptoms experienced during active duty, let alone an aggravation of the pre-existing injury. There is no evidence of right knee pain during active duty. He reported instances of left and right knee pain during periods of INACDUTRA in July 2006 and August 2009 respectively. There is no indication of any specific injury during these periods of INACDUTRA, and service connection is therefore not available for these reports of pain. Furthermore, multiple VA examiners have stated that the Veteran’s bilateral knee arthritis is related to aging and/obesity as opposed to any incident in service. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s knee disabilities are related to service or manifested within one year of separation from active duty. Service connection is therefore denied. 3. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hand numbness and tingling The Veteran seeks to reopen his claim of service connection for bilateral hand numbness and tingling. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted to agency decision makers and “material” evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Service connection for bilateral hand numbness and tingling was originally denied in a September 2011 rating decision based on a finding that the Veteran did not have a current disability. VA treatment records received since the September 2011 rating decision reflect that in February 2012 the Veteran’s physician noted signs and symptoms suggestive of carpal tunnel syndrome. At a July 2012 consultation he was diagnosed with bilateral hand numbness and paresthesias which can be secondary to diabetic polyneuropathy, carpal tunnel syndrome, and least likely cervical radiculopathy. This evidence relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for bilateral hand numbness and tingling. The Board therefore finds that new and material evidence was in VA’s constructive possession during the one-year appeal period following the September 2011 rating decision, abrogating its finality. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). The September 2011 rating decision will therefore be reconsidered on the merits below. 4. Entitlement to service connection for cervical radiculopathy 5. Entitlement to service connection for bilateral hand numbness and tingling The Veteran claims service connection for cervical radiculopathy and for bilateral hand numbness and tingling. Active duty service treatment records do not reflect any symptoms of or treatment for any neurological disabilities of the upper extremities. Reserve service treatment records reflect that the Veteran injured his back and neck in April 2009. This injury was found to be in the line of duty. On the day after his injury he denied any numbness or tingling. One week later he reported numbness and tingling in the fourth and fifth fingers of both hands, worse on the right. He was diagnosed with radiculopathy. In his prior October 2010 claim, the Veteran reported bilateral hand numbness and tingling beginning in April 2009. The Veteran underwent a VA examination in June 2011. He reported numbness of both arms with associated finger cramps. Reflexes and sensory examinations were normal. Muscle strength was full without atrophy. The examiner opined that his reported tingling and numbness was less likely than not due to the neck injury. This opinion was based on the rationale that physical examination showed normal reflexes, sensation, and strength. Cervical radiculopathy was therefore not suspected. VA treatment records reflect that in February 2012 the Veteran presented to the emergency room reporting evidence of progressive numbness in his hands accentuated at night. He denied neck pain or radiation. His physician noted signs and symptoms suggestive of carpal tunnel syndrome. At a July 2012 consultation he reported bilateral hand numbness for 6-7 years. He also reported neck discomfort. He was diagnosed with bilateral hand numbness and paresthesias which can be secondary to diabetic polyneuropathy, carpal tunnel syndrome, and least likely cervical radiculopathy. In December 2012 he underwent a nerve conduction study and electromyography (EMG). Based on the results he was diagnosed with bilateral carpal tunnel syndrome, severe in the right and moderate in the left. There was no evidence of polyneuropathy. He underwent occupational therapy in January 2013 and February 2013. The Veteran underwent a VA examination for his cervical spine disability in May 2014. He was diagnosed with a cervical strain with cervical disc protrusion and intervertebral disc syndrome (IVDS). Muscle strength was full without atrophy and reflexes were hypoactive. Sensory examination was normal. The examiner found no radicular pain or any other signs or symptoms due to radiculopathy. VA treatment records reflect that in March 2015 the Veteran reported worsening carpal tunnel syndrome pain. In June 2015 he was diagnosed with carpal tunnel syndrome and Dupuytren contractures. A nerve conduction study and EMG showed severe bilateral carpal tunnel syndrome, worse on the right, asymptomatic right ulnar neuropathy, and early diabetic polyneuropathy. In his June 2015 notice of disagreement, the Veteran stated that he was diagnosed with cervical radiculopathy during a period of ACDUTRA on April 14, 2009. He also stated that his symptoms of hand numbness, now claimed as bilateral carpal tunnel syndrome, were reported since 2001. VA treatment records reflect that in August 2015 the Veteran reported right hand numbness and pain for years. In October 2015 he underwent right carpal tunnel release surgery with physical therapy throughout his recovery. The Veteran underwent another VA examination for his cervical spine disability in July 2019. Muscle strength was full without atrophy. Reflexes and sensory examinations were normal. There was no radicular pain or any other signs or symptoms due to radiculopathy. As to cervical radiculopathy, the Board finds that the evidence weighs against a current disability. The Veteran is not competent to determine whether his upper extremity neurological symptoms constitute radiculopathy. Multiple VA examiners have concluded that he does not have symptoms of radiculopathy. Objective testing shows that his symptoms are primarily carpal tunnel syndrome with early diabetic neuropathy. There was also electrodiagnostic evidence of asymptomatic right ulnar radiculopathy, but such a diagnosis, by definition, does not impact his function and therefore does not meet the definition of a disability for VA compensation purposes. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. (Continued on the next page)   As to his bilateral hand numbness and tingling now diagnosed as carpal tunnel syndrome, the Board finds that the evidence is at least in equipoise as to whether this disability arose during active service. The earliest evidence of such a disability in the record is a report of tingling and numbness in his fingers during a period of ACDUTRA while being treated for an injury that was determined to be in the line of duty. He consistently reported such symptoms until his July 2012 diagnosis of probable carpal tunnel syndrome, confirmed by electrodiagnostic testing in December 2012. For these reasons, the Board finds the evidence is at least in equipoise as to whether carpal tunnel syndrome arose during a period of ACDUTRA, and service connection is therefore granted. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.