Citation Nr: 21026484 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-15 871A DATE: May 3, 2021 ORDER Service connection for a left hand disorder, to include as secondary to service-connected back disability, is denied. Service connection for a right hand disorder, to include as secondary to service-connected back disability, is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to August 21, 2013 is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of left cubital tunnel syndrome, but such disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, or caused or aggravated by a service-connected disability. 2. The Veteran has a current diagnosis of right cubital tunnel syndrome, but such disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, or caused or aggravated by a service-connected disability. 3. Prior to August 21, 2013, the evidence of record did not show that the Veteran's service-connected disabilities precluded him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for left cubital tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for right cubital tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. Prior to August 21, 2013, the criteria for a TDIU rating, to include on an extra-schedular basis, were not met. 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Air Force from August 1977 to September 1994. These matters are before the Board of Veterans' Appeal (Board) on appeal of May 2013 and August 2019 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Specifically, the May 2013 rating decision, in part, denied service connection for bilateral hand disorders. TDIU was addressed in the August 2019 decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in May 2019, at which time additional issues were before the Board, including increased rating claims. A transcript of this proceeding has been associated with the claims file. Significantly, the Veteran's representative requested a TDIU during the May 2019 Board hearing pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) as part and parcel to the then-pending increased rating claims. Subsequently, by rating decision dated in August 2019, the RO granted a TDIU effective June 25, 2015. More recently, by rating decision dated in February 2021, the RO assigned an earlier effective date for the award of a TDIU to August 21, 2013. Notably, the above claims were previously before the Board in October 2019 and January 2021. Significantly, at those times, the Board found that, as claims for increased ratings had been pending since May 2011, the issue of entitlement to a TDIU prior to June 25, 2015 (now August 21, 2013) remained on appeal. 1. Service connection for bilateral hand disorders, to include as secondary to service-connected back disability, is denied. The Veteran contends that he experiences a bilateral hand disorder secondary to his service-connected lumbar spine disability. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury, event, or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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). Service treatment records are negative for complaints or treatment regarding the hands. However, they do show that the Veteran injured his back after lifting a desk in March 1994 and, shortly thereafter, received a medical discharge due to this injury. Service treatment records also show that the Veteran underwent surgery on his left wrist in June 1981, specifically transplantation of the palmaris muscle tendon into the dorsum of the left wrist to hold the other tendon in place. Notably, the Veteran is currently service-connected for both lumbar spine and left wrist disabilities. Post-service private treatment records show treatment for right cubital syndrome as early as September 2006 and left cubital syndrome as early as January 2007. A September 2006 treatment record shows a four-month history of progressive numbness and tingling in the right hand with no particular inciting event. However, it was noted that the Veteran had had spine surgery, particularly of the thoracolumbar region with plate and screws, described as a fusion, which suggests that the Veteran's cubital syndrome may be related to the Veteran's service-connected lumbar spine disability. The Veteran submitted an initial claim for service connection for bilateral hand disorders in May 2011. In connection with this claim, he was afforded a VA hand examination in October 2020. Significantly, this examiner diagnosed bilateral status post cubital tunnel release, noting an onset in 2012, and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's military service. As rationale for this opinion, the examiner noted that the Veteran fractured his left wrist in 1975, prior to his military service, and underwent tendon repair of the left wrist in 1981, during his military service. According to the examiner, rupture of the wrist tendon typically occurs after a fracture of the distal radius but that this could not be related to the Veteran's service as the fracture occurred prior to the Veteran's military service and the subsequent surgery was the result of the fracture with no in-service injury reported or found in the medical records. The October 2020 VA examiner also noted that the Veteran's cubital tunnel syndrome is caused by pressure on the ulnar nerve at the elbow and that the ulnar nerve is formed from the cervical region of the spine, not the lumbar region of the spine. As such, the symptoms related to the ulnar nerve are not related to the Veteran's lumbar spine condition. Pursuant to the January 2021 Board remand, an addendum medical opinion was obtained in February 2021. Significantly, the February 2021 VA examiner reviewed the record, noting an onset of bilateral cubital tunnel syndrome in 2006/2007 and opined that the claimed condition was less likely than not (less than 50 percent probability) secondary to and/or aggravated aggravated beyond its natural progression by the Veteran's service-connected lumbar spine disability. As rationale for this opinion, the examiner noted that the Veteran has been through a significant number of operative procedures for his service-connected lumbar spine disability and underwent cubital tunnel release surgeries 12 to 13 years after his service discharge. The cubital tunnel involves the ulnar nerve at the elbow as it courses its way through the forearm into the hand. The ulnar nerve is the terminal branch of the brachial plexus's medial cord and contains fibers from the C8 and T1 spinal nerve roots. The nerve descends the arm into the elbow. The unusual anatomy of the cubital tunnel and the wellrecognized increase in intraneural pressure associated with elbow flexion are believed to be critical issues in the pathogenesis of cubital tunnel syndrome. It is the second most common peripheral nerve disorder, second to carpal tunnel syndrome. It is a localized entrapment of the nerve due to stretch, compression, or injury. The lumbar spine and its nerve roots are far below the cervical spine and would have no relationship to the upper extremities' peripheral nerves, e.g., the ulnar nerve. The medical literature and known anatomy and physiology do not support a nexus of cubital tunnel syndrome to the Veteran's lumbar spine condition. They are uniquely purposeful in their specialized function, are independent of one another, and do not overlap. Also of record are VA treatment records dated through February 2021 which show treatment for the Veteran's bilateral cubital tunnel syndrome but do not provide any additional insight into the etiology of the disorder. Initially, the Board notes that cubital tunnel syndrome is not included as a chronic condition under 38 C.F.R. § 3.309(a). As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claim is also denied on a direct basis. First, there is no evidence of bilateral hand problems in service or shortly after service other than the already service-connected left wrist disability. Significantly, the Veteran's original claim for service connection in September 1994 was specific to the left wrist. Had the Veteran also been experiencing problems with the bilateral hands, it stands to reason that he would have mentioned those problems at that time. The Veteran was not actually diagnosed with right cubital syndrome until September 2006 and left cubital syndrome until January 2007, approximately 12 to 13 years after his discharge from service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Finally, the October 2020 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's military service. As rationale for this opinion, the examiner noted the in-service left wrist treatment but found that there was no additional in-service injury reported/medical records regarding the hands. While the October 2020 VA examiner incorrectly noted that the Veteran was first diagnosed with bilateral cubital tunnel syndrome in 2012 rather than 2006/07, the February 2021 addendum opinion noted the correct dates of onset yet continued to provide a negative nexus opinion. There is no medical evidence in the record that links the Veteran's bilateral cubital tunnel syndrome to an incident of the Veteran's active military service. The claim is also denied on a secondary/aggravation basis. As above, the February 2021 VA examiner opined that the Veteran's bilateral cubital tunnel syndrome is not secondary to nor aggravated by his service-connected lumbar spine disability since cubital tunnel syndrome is caused by pressure on the ulnar nerve at the elbow, formed from the cervical region of the spine, not the lumbar region of the spine. As such, the symptoms related to the ulnar nerve are not related to the Veteran's lumbar spine condition. The Board finds these opinions to be highly probative, as they are based on an examination of the Veteran and review of the pertinent records, and they include the underlying reasons for the conclusions reached. While the Veteran has alleged that bilateral cubital tunnel syndrome is related to his military service, the Board finds that the question regarding the potential relationship between the Veteran's cubital tunnel syndrome and any instance of his military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of the cubital tunnel syndrome involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. 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. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral cubital tunnel syndrome. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. A TDIU prior to August 21, 2013 is denied. As above, the Veteran's representative requested a TDIU during the May 2019 Board hearing pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) as part and parcel to his increased rating claims which were, at that time, on appeal. Subsequently, by rating decision dated in August 2019, the RO granted a TDIU effective June 25, 2015. More recently, by rating decision dated in February 2021, the RO assigned an earlier effective date for the award of a TDIU to August 21, 2013. The Veteran contends that an earlier effective date is warranted, specifically May 23, 2011, the date of his claim for a higher rating for his service-connected lumbar spine disability. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Further, TDIU may be granted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). This means that in exceptional cases, where the evaluations provided by the rating schedule are found to be inadequate, a TDIU claim may be referred for extraschedular consideration. 38 C.F.R. § 3.321(b). The Board does not have jurisdiction to assign an extraschedular rating in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Rather, consideration of whether an extraschedular rating is assignable must be referred to the RO, who requests such consideration by the Under Secretary for Benefits or by the Director of Compensation Service. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). While medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity, 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013), the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). By way of history, on May 23, 2011, the Veteran submitted a claim for an increased rating for his lumbar spine disability as well as a claim for service connection for a bilateral hand disorder. Subsequently, by rating decision dated in May 2013, the RO, in part, continued a 20 percent disability rating for the Veteran's lumbar spine disability and denied service connection for a bilateral hand disorder. The Veteran perfected this appeal with regard to the disability rating assigned. Therefore, the appeal period before the Board is from May 23, 2011 forward. Prior to August 21, 2013, the Veteran was service connected for a lumbar spine disability, rated as 20 percent disabling, as well as a left wrist disability and various scars, each rated as noncompensably disabling. Effective August 21, 2013, the Veteran's service-connected lumbar spine disability was increased to 40 percent disabling and he was awarded separate ratings for radiculopathy associated with the lumbar spine, resulting in a combined 60 percent disability rating based on a common etiology. As of August 21, 2013, the Veteran met the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, prior to August 21, 2013, the Veteran did not meet the schedular criteria for a TDIU as he was not yet service-connected for radiculopathy of the lower extremity and was only rated as 20 percent disabling for his lumbar spine disability. Even so, he may be entitled to a TDIU on an extra-schedular basis prior to such date if the evidence demonstrates that such sole service-connected disability rendered him unable to secure or follow a substantially gainful occupation. Therefore, the remaining inquiry is whether it is factually ascertainable that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation in light of his educational and employment history prior to August 21, 2013. A review of the record shows that the Veteran was awarded Social Security disability benefits effective October 7, 2003 due, at least in part, to his lumbar spine disability. July 2011 VA joint and spine examinations show that the Veteran worked as an internet trainer until 2005 when he quit due to an award of Social Security disability benefits. He was able to drive long distances, shop, provide for his own self-care, and go boating. His only symptoms were a slight decreased sensation of all the toes of both feet, not involving a dermatome. Significantly, the July 2011 VA spine examiner opined that the Veteran's low back disability did not prevent him from seeking and maintaining gainful employment but would limit his physical activities by preventing him from performing heavy lifting and carrying. In August 2011 correspondence, the Veteran wrote that he had been unable to work due to his service-connected lumbar spine disability and had been on Social Security disability benefits since October 2005. During the May 2019 Board hearing, the Veteran reported that he had not worked full-time during the appeal period beginning May 2011 due to his service-connected disability. However, a review of the record shows that the Veteran worked part-time as a photographer from December 2010 to June 2012. See February 2021 VA Form 27-0820 Report of General Information. Based on the foregoing, despite the Veteran's allegations of an inability to work solely as a result of his service-connected disabilities prior to August 21, 2013, the evidence of record fails to support such contention. Initially, as above, while the Veteran has been in receipt of Social Security disability benefits since October 2003, it appears that he has worked for lengthy periods of time since October 2003. Specifically, it appears that he actually worked as an internet trainer until 2005 and worked as a part-time photographer from December 2010 to June 2012. Furthermore, the medical evidence shows that while the Veteran's lumbar spine disability made employment more difficult due to his limitations, the condition did not preclude employment prior to August 21, 2013. Therefore, the Board finds that the Veteran's service-connected disabilities, while disruptive and uncomfortable, did not render him unable to secure or follow a substantially gainful occupation in light of his educational and employment history prior to August 21, 2013. Accordingly, the Board finds that the preponderance of the evidence is against the award of a TDIU prior August 21, 2013. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.