Citation Nr: 21027003 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-33 851 DATE: May 4, 2021 ORDER Entitlement to service connection for lumbar degenerative disc disease and lumbar spondylosis as due to service-connected arthritis of the left elbow and service-connected arthritis of the right elbow is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for arthritis of left elbow (minor) is remanded. Entitlement to a disability rating in excess of 20 percent for arthritis of right elbow (major) is remanded. Entitlement to service connection for a right arm condition, to include as due to service-connected arthritis of the right elbow is remanded. Entitlement to service connection for a left arm condition, to include as due to service-connected arthritis of the left elbow is remanded. Entitlement to service connection for a right knee condition to include as due to service-connected arthritis of the left elbow and service-connected arthritis of the right elbow is remanded. Entitlement to service connection for a left knee condition to include as due to service-connected arthritis of the left elbow and service-connected arthritis of the right elbow is remanded. Entitlement to service connection for a right shoulder condition to include as due to service-connected arthritis of the right elbow is remanded. Entitlement to service connection for a left shoulder condition to include as due to service-connected arthritis of the left elbow is remanded. Entitlement to service connection for a right hand condition to include as due to service-connected arthritis of the right elbow is remanded. Entitlement to service connection for a left hand condition to include as due to service-connected arthritis of the left elbow is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, the diagnosed lumbar degenerative disc disease and lumbar spondylosis are secondary to his service-connected arthritis of the left elbow and service-connected arthritis of the right elbow. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbar degenerative disc disease and lumbar spondylosis as secondary to service-connected arthritis of the left elbow and service-connected arthritis of the right elbow have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty during the Vietnam Era from June 1967 to December 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in November 2020. A transcript of the hearing has been associated with the Veteran's electronic claims file. The Board notes that in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a TDIU may be considered part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). At the November 2020 Board hearing, the Veteran testified that he is unable to work due to his service-connected elbow arthritis. Further, in June 2017 the Veteran filed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, asserting that he is unable to work due to his bilateral elbow disability. As such, the Veteran's unemployability has been raised during the appeal period. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim. Service Connection The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. See, e.g., Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established on a secondary basis for a disability which is shown to be 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 showing that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Entitlement to service connection for a back condition to include as due to service-connected arthritis of the left elbow and service-connected arthritis of the right elbow The Veteran contends that service connection is warranted for a back condition incurred as the result of a service-connected disability. Specifically, he asserts that he worked in heating and air conditioning and construction for more than 30 years. The Veteran asserts that his lumbar spine condition is due to overcompensating by lifting with his back and legs due to his service-connected bilateral elbow disability. After resolving all reasonable doubt in favor of the Veteran, the Board concludes that he has a current diagnoses of lumbar degenerative disc disease and lumbar spondylosis that are secondary to his service-connected elbow disability. 38 C.F.R. §§ 3.102, 3.310. A March 2019 private medical opinion from the Veteran's pain management doctor, Dr. H.L, was associated with the record in November 2020. Dr. H.L. stated that he has treated the Veteran since 2013 for complaints of elbow, neck, shoulder, and low back pain. Dr. H.L. noted diagnoses of lumbar degenerative disc disease and lumbar spondylosis. Dr. H.L. stated that the Veteran's condition has progressively worsened. Regarding the Veteran's low back condition, Dr. H.L. noted the Veteran's long occupational history of construction work which required a large amount of lifting. Dr. H.L. further noted the Veteran's limited arm use due to his elbow conditions, and that therefore lifting put stress on the Veteran's back. Based on a review of the lifting guideline of Ohio Bureau of Workers' Compensation, Dr. H.L. determined that the Veteran has a high risk of developing a low back disorder. Dr. H.L. further referenced medical literature which indicates that poor lifting techniques can result in back injury. Given the poor lifting habits which placed additional stress on the Veteran's back due to the limited function of his elbows, Dr. H.L. opined that the Veteran's back condition is more likely than not aggravated by his elbow injuries. After careful consideration of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's diagnosed lumbar degenerative disc disease and lumbar spondylosis are related to his service-connected bilateral elbow disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a back condition on a secondary basis is warranted. 38 C.F.R. §§ 3.102, 3.310; Gilbert, 1 Vet. App. at 53. In so finding, the Board notes that although 38 C.F.R. § 3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO's determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for arthritis of left elbow (minor) 2. Entitlement to a disability rating in excess of 20 percent for arthritis of right elbow (major) At the November 2020 Board hearing, the Veteran testified that his bilateral elbow disability has worsened. Specifically, the Veteran asserted that over the past few years he has been unable to straighten his arms out, that he currently cannot lift over 5 to 10 pounds, and that he experiences throbbing and severe pain. The Veteran also testified to experiencing flare-ups with pain of nine or ten on a ten point scale and sleeping only two or three hours a night because of pain. The Veteran was last afforded a VA examination in December 2015. As the Veteran asserts that his condition has worsened since then, a new VA examination is warranted to determine the current severity of his bilateral elbow disability. 3. Entitlement to service connection for a right arm condition, to include as due to service-connected arthritis of the right elbow 4. Entitlement to service connection for a left arm condition, to include as due to service-connected arthritis of the left elbow 5. Entitlement to service connection for a right knee condition to include as due to service-connected arthritis of the left elbow and service-connected arthritis of the right elbow 6. Entitlement to service connection for a left knee condition to include as due to service-connected arthritis of the left elbow and service-connected arthritis of the right elbow 7. Entitlement to service connection for a right shoulder condition to include as due to service-connected arthritis of the right elbow 8. Entitlement to service connection for a left shoulder condition to include as due to service-connected arthritis of the left elbow 9. Entitlement to service connection for a right hand condition to include as due to service-connected arthritis of the right elbow 10. Entitlement to service connection for a left hand condition to include as due to service-connected arthritis of the left elbow The Veteran asserts that his bilateral arm, shoulder, hand, and knee conditions are related to his service-connected bilateral elbow disability. Specifically, he asserts that these conditions are due to overcompensating while lifting due to functional limitations imposed by his service-connected bilateral elbow disability. Regarding the claimed hand and shoulder conditions, an August 2012 VA examiner opined that the Veteran's hand and shoulder conditions are not caused by or permanently aggravated by the Veteran's service-connected elbow condition. In March 2014, answers to interrogatories from the Veteran's private doctor, Dr. H.L., were associated with the record. Dr. H.L. noted that the Veteran was diagnosed with cervical disc disease with cervicalgia, lumbar facet syndrome, and myofascial pain syndrome. Dr. H.L. indicated that the Veteran's elbow condition caused him to place more pressure on his hands and shoulders. Dr. H.L. stated that the Veteran's hand condition is aggravated by elbow arthritis and that his shoulder condition is related to elbow arthritis due to overcompensation. The Board finds that Dr. H.L.'s answers to the interrogatories are inadequate for the purpose of establishing that the Veteran has shoulder and hands conditions which are caused by or aggravated by his bilateral elbow disability, as the answers do not include a rationale which provides a nexus between a specific diagnosed condition of the hands or shoulders and the Veteran's service-connected disability. June 2013 VA shoulder x-rays show mild bilateral acromioclavicular osteoarthritis. August 2014 VA bilateral hand x-rays show trauma of the left little finger and degenerative arthritis of multiple joints. As these diagnoses were not considered by the August 2012 VA examiner, a new VA examination is warranted to determine the etiology of the Veteran's diagnosed conditions. Regarding the Veteran's knee condition, in the March 2014 answers to interrogatories Dr. H.L. indicated that the Veteran's elbow condition causes him to place more pressure on his knees. The Veteran has been diagnosed with bilateral medial compartment degenerative joint disease (DJD). See March 25, 2011 Private Radiology Report. A VA examination is warranted to determine the etiology of the Veteran's bilateral knee DJD. Regarding the Veteran's claimed arm condition, in the March 2014 answers to interrogatories Dr. H.L. indicated that the Veteran's elbow disability causes him to place more pressure on his arms. VA treatment records show complaints of bilateral arm pain in conjunction with his complaints of neck, elbow, shoulder, and hand pain. As such, a VA examination is warranted to determine the etiology of the Veteran's claimed arm condition. 11. Entitlement to a total disability rating due to individual unemployability (TDIU) The issue of entitlement to a TDIU is inextricably intertwined with the Board's award of service connection for a back condition and the remanded increased rating and service connection claims. Therefore, the Board must defer adjudication of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes that the most recent VA treatment records associated with the Veteran's file are from April 2015. On remand, VA treatment records from April 2015 to the present should be associated with the record. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from April 2015 to the Present. 2. Once the development above is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected arthritis of the elbows. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repetitive use over time based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for a VA examination(s) for his claimed right arm, left arm, right knee, left knee, right shoulder, left shoulder, right hand, and left hand conditions. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. For each diagnosed condition or condition that is undiagnosed but which manifests in symptoms that cause functional loss, the examiner is asked to provide a response to the following: (a.) Is the claimed condition at least as likely as not proximately due to the Veteran's service connected arthritis of the left and/or right elbow? (b.) Is the claimed condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service connected arthritis of the left and/or right elbow? (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.