Citation Nr: 21025732 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-37 274 DATE: April 28, 2021 ORDER Entitlement to service connection for depressive disorder secondary to service-connected disabilities is granted. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity, including secondary to residuals of surgery for De Quervain’s Syndrome of the right upper extremity, is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 20, 2019 is granted. REMANDED The claim of entitlement to service connection for HIV is remanded. The claim of entitlement to service connection for hepatitis C is remanded. The claim of entitlement to a rating in excess of 20 percent for degenerative disc disease is remanded. The claim of entitlement to a rating in excess of 10 percent for residuals of surgery (other than scars) for De Quervain’s Syndrome of the right upper extremity is denied. The claim of entitlement to a rating in excess of 10 percent for a right ankle injury, right heel and tendonitis, is remanded. The claim of entitlement to an effective date prior to January 30, 2014 for a grant of service connection for migraine headaches, including migraine variants, is remanded. The claim of entitlement to an initial rating greater than 50 percent for migraine headaches, including migraine variants, is remanded. FINDINGS OF FACT 1. Depressive disorder is related to the Veteran’s service-connected disabilities. 2. Carpal tunnel syndrome of the left wrist did not initially manifest in service and is not otherwise related to service or a service-connected right upper extremity disability. 3. Radiculopathy of the right lower extremity causes moderate incomplete paralysis of the sciatic nerve. 4. Radiculopathy of the left lower extremity causes moderate incomplete paralysis of the sciatic nerve. 5. Service-connected disabilities prevented the Veteran from securing or maintaining gainful employment prior to September 20, 2019. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for depressive disorder secondary to service-connected disabilities have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to service connection for carpal tunnel syndrome of the left upper extremity, including secondary to residuals of surgery for De Quervain’s Syndrome of the right upper extremity, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.10, 4.124A, Diagnostic Code (DC) 8520. 4. The criteria for entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.10, 4.124A, DC 8520. 5. The criteria for entitlement to a TDIU prior to September 20, 2019 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1980 to September 1983. Her claims come before the Board of Veterans’ Appeals (Board) on appeal of February 2013, January 2015 and October 2020 Department of Veterans Affairs (VA) rating decisions. The Board remanded these claims to the Agency of Original Jurisdiction (AOJ) in October 2018. Service Connection 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). Service connection may also be granted for disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Entitlement to service connection for depression, including as secondary to service-connected disabilities The Veteran seeks service connection for depression on a secondary basis as related to the restrictive pain caused by her service-connected disabilities. The evidence supports this claim. Post-service treatment records establish that the Veteran has a current mental health disability diagnosed during the course of this appeal (since 2011) as depression, not otherwise specified, and depressive disorder. During treatment visits, providers occasionally discussed the Veteran’s depression in conjunction with the pain she was experiencing secondary to her service-connected physical disabilities. In October 2016, RW, Psy.D., reviewed the Veteran’s records and conducted a mental evaluation. Based on his findings and rationale set forth in his comprehensive report, he concluded that the Veteran’s depressive disorder is more likely than not caused by her service-connected medical conditions. This evidence satisfies the criteria for entitlement to service connection for depressive disorder on a secondary basis. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity, including secondary to residuals of surgery for De Quervain’s Syndrome of the right upper extremity The Veteran seeks service connection for left carpal tunnel syndrome on a secondary basis as related to her service-connected right upper extremity disability. She claims that, due to the disability in her right wrist, she has had to compensate by overusing her left wrist, causing additional disability to develop. The Board concludes that, while the Veteran is service connected for a right upper extremity disability affecting the wrist and currently has carpal tunnel syndrome on the left, the preponderance of the evidence weighs against finding that the left carpal tunnel syndrome is related to the service-connected right upper extremity disability or her active service. During a January 2013 VA hand and wrist examination, the Veteran specifically reported that symptoms of her left carpal tunnel syndrome initially manifested as pain in her shoulder and neck in 2010, decades after service, and other medical records in the file substantiate this timeline. The Veteran did not report or receive treatment for left hand or wrist complaints during service or prior to 2010. In January 2013, a VA examiner evaluated the Veteran’s left and right hands and wrists and concluded that the left carpal tunnel syndrome is less likely than not proximately due to or the result of the Veteran’s right upper extremity disability. The examiner explained that if, as asserted, the Veteran was going to have compensation problems from using her left wrist too much, she would have developed left wrist problems in the 1980s, 1990s or 2000s; instead, she developed such problems over the past year, more likely due to her current daily activities. The Veteran’s assertion linking her left carpal tunnel syndrome to her right upper extremity disability is therefore the only nexus evidence of record in this case. However, while the Veteran is competent to report when any lay-observable left wrist/hand symptoms initially manifested, not being trained in medicine, she is not competent to provide an opinion on the etiology of the carpal tunnel syndrome. The issue is medically complex, requiring knowledge of the interaction between repetitive use and the musculoskeletal system. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In the absence of competent evidence related the Veteran’s left carpal tunnel syndrome to her active service or service-connected right upper extremity disability, the criteria for entitlement to service connection for that disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. Increased Ratings Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity The AOJ has rated the radiculopathy in each of the Veteran’s lower extremities 20 percent disabling pursuant to 38 C.F.R. § 4.124A, DC 8520. The Veteran seeks increased/higher initial ratings for the radiculopathy on the basis that it is worsening. She claims that she has a burning sensation and swelling in her legs, the latter when standing or walking. She further claims that her legs give out and she falls; she uses a walking stick for balance, and when she bathes, due to instability, she has to sit on the side of the bathtub. In addition, she is unable to go up and down stairs. The preponderance of the evidence is against each of these claims. Under DC 8520, a 20 percent rating is assignable for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assignable for moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124A, DC 8520. The term "incomplete paralysis" in the context of peripheral nerve injuries 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 partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124A. Here, during the course of this appeal, the Veteran occasionally sought treatment for her leg complaints, primarily burning pain and numbness, but during treatment visits, no medical professional specifically characterized any nerve damage in the legs as mild, moderate or more than moderate. During VA examinations conducted in January 2013 and November 2019, however, examiners addressed this matter. During the January 2013 VA back examination, an examiner noted moderate radiculopathy affecting the sciatic nerves bilaterally, manifesting as severe constant pain, severe paresthesias and/or dysesthesias and severe numbness. During the November 2019 VA peripheral nerves and back examinations, examiners noted mild intermittent pain in the lower extremities but indicated that the sciatic nerves were normal bilaterally with no paralysis, incomplete or complete. There is no evidence of record, including any VA examination report or treatment record, indicating that, during the course of this appeal, the radiculopathy in the Veteran’s lower extremities was causing more than moderate incomplete paralysis of the sciatic nerves. As such, the criteria for entitlement to increased/higher initial ratings for radiculopathy in the right and left lower extremities are not met. Entitlement to a TDIU prior to September 20, 2019 In an October 2020 rating decision, the AOJ granted the Veteran a TDIU, effective September 20, 2019, based on the date she filed a formal claim for this benefit. As the Veteran’s representative has asserted, however, the Veteran raised this claim years prior to the filing of the formal claim as a component of her increased rating claims, see Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the AOJ’s action is not a full grant of the benefit sought on appeal. The question remains whether the Veteran is entitled to a TDIU prior to September 20, 2019. During the early part of this appeal, the Veteran reported that her back, right wrist, right ankle and neurological disabilities interfered with her ability to work. According to her September 2019 formal TDIU application, due to all of her service-connected disabilities, she became too disabled to work beginning in February 2011. These disabilities reportedly began affecting her full-time employment in September 2007, and she last worked in September 2009 as a picker, earning $6,000 that year. The evidence supports this claim. TDIU may be granted when a claimant's service-connected disabilities are rated less than total but prevent him or her from obtaining or maintaining all gainful employment. If a claimant has only one disability, that disability must be rated 60 percent or more disabling. If the claimant has two or more disabilities, one disability must be rated 40 percent or more disabling and he or she must have sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, if applicable, are considered one disability. 38 C.F.R. § 4.16(a)(1). The Veteran satisfied these percentage requirements prior to September 20, 2019. From February 11, 2011, she was service connected for degenerative disc disease of the thoracolumbar spine with intervertebral disc syndrome, rated 20 percent disabling, radiculopathy, right lower extremity, rated 20 percent disabling, radiculopathy, left lower extremity, rated 20 percent disabling, a right wrist and thumb disability, rated 10 percent disabling, a right ankle disability, rated 10 percent disabling, scar residuals (painful), right wrist and thumb, rated 10 percent disabling, and scar residuals (linear), right wrist and thumb, rated 10 percent disabling. Combining the radiculopathy in each lower extremity under 38 C.F.R. § 4.16(a)(1), this translates to a combined disability rating, with a bilateral factor, of 70 percent. 38 C.F.R. § 4.25. The question is therefore whether these service-connected disabilities, which from January 30, 2014 include migraine headaches, including migraine variants, rated 50 percent disabling, prevented the Veteran from obtaining or maintaining all gainful employment. Multiple medical professionals have addressed this matter. As early as January 2013 when the Veteran underwent VA examinations of her then service-connected disabilities, medical professionals began acknowledging that each of these disabilities was impacting the Veteran’s ability to work, but none addressed the collective impact of these disabilities. In December 2014 when the Veteran underwent a VA headache examination, the examiner indicated that the Veteran had very frequent and prolonged prostrating headache attacks (more than once monthly), during which she was not able to work at all. In November 2016, HS, M.D., reviewed the Veteran’s claims file, interviewed the Veteran and determined that, due to mobility, severe pain and physical limitations, the Veteran was unable to maintain gainful employment secondary to her service-connected back, neurological, right wrist, right ankle and scar disabilities. Also in November 2016, SB, Rh.D., a vocational expert, determined that, as far back as the date of filing, the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of her service-connected disabilities, to include the headaches service connected in 2014. In providing this opinion, SB considered the Veteran’s medical records, multiple vocational studies, January 2013 VA examination reports, and HS’s opinion. She explained that the Veteran had a combination of physical conditions that interacted in terms of severity level, and that the physical activity involved in sustaining work was extremely limiting for the Veteran. The same month, Dr. RW reviewed the Veteran’s claims file, including HS’s and SB’s opinions, interviewed and conducted a mental evaluation of the Veteran, considered relevant, evidence-based research, related the Veteran’s depressive disorder to her service-connected disabilities (characterized as chronic pain and limitations), and found that the disabilities had been severe enough since February 11, 2011, when she filed her claims, to prevent her from sustaining gainful employment. The Board acknowledges evidence of record that conflicts with these opinions and challenges the Veteran’s credibility, including information from the Social Security Administration. However, based on the multiple favorable opinions the Veteran’s representative has submitted in support of this claim, and treatment records and VA examination reports dated since 2013, which confirm severe service-connected symptoms impacting the Veteran’s ability to work, the Board concludes that, prior to September 20, 2019, service-connected disabilities prevented the Veteran from maintaining gainful employment. The criteria for a TDIU are thus met. REASONS FOR REMAND Entitlement to service connection for HIV Entitlement to service connection for hepatitis C The Veteran has not indicated why she believes she is entitled to service connection for HIV and hepatitis. According to medical evidence of record, doctors first diagnosed her with these conditions approximately 17 years after discharge from service, but in service, she had multiple infections and hematuria on blood testing, and engaged in unprotected sex (in-service pregnancies and spontaneous abortion), a risk factor for HIV and hepatitis C. The question therefore arises whether either of these conditions developed secondary to an in-service risk factor, including the unprotected sex. See ZN v. Brown, 6 Vet. App. 183 (1994) (in addressing service connection for HIV, VA must consider in-service exposure to HIV, not only HIV diagnosis). A medical opinion is therefore needed. Entitlement to a rating in excess of 20 percent for degenerative disc disease Entitlement to a rating in excess of 10 percent for residuals of surgery (other than scars) for De Quervain’s Syndrome of the right upper extremity Entitlement to a rating in excess of 10 percent for a right ankle injury, right heel and tendonitis During the course of this appeal, VA amended the criteria for rating musculoskeletal disabilities, effective from February 7, 2021. 85 Fed. Reg. 76464 (Nov. 30, 2020); 86 Fed. Reg. 8142 (Feb. 4, 2021). As the amendments are applicable to the Veteran’s low back, right upper extremity and right ankle claims, their applicability must be considered. Entitlement to an effective date prior to January 30, 2014 for a grant of service connection for migraine headaches, including migraine variants Entitlement to an initial rating greater than 50 percent for migraine headaches, including migraine variants In a November 2018 rating decision, the AOJ granted the Veteran service connection for migraine headaches, including migraine variants, and assigned that disability an initial 50 percent rating. In September 2019, the Veteran expressed disagreement with the decision. To date, the AOJ has not issue a statement of the case in response, action required under Manlincon v. West, 12 Vet. App. 238 (1999). These matters are REMANDED for the following action: 1. Obtain a medical opinion with supporting rationale addressing whether the Veteran’s HIV and/or hepatitis at least as likely as not developed secondary to an in-service risk factor, including unprotected sex. (Continued on the next page)   2. Issue a statement of the case addressing the claims of entitlement to an effective date prior to January 30, 2014 for a grant of service connection for migraine headaches, including migraine variants, and entitlement to an initial rating greater than 50 percent for migraine headaches, including migraine variants. Notify the Veteran that she must perfect her appeal if she wants appellate review of these claims. 3. Readjudicate each claim properly prepared for appellate review. In deciding the low back, right upper extremity and right ankle claims, consider the applicability of VA's recently amended criteria for rating disabilities of the musculoskeletal system. 85 Fed. Reg. 76464 (Nov. 30, 2020); 86 Fed. Reg. 8142 (Feb. 4, 2021). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N. 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.