Citation Nr: 21027576 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 13-13 373 DATE: May 6, 2021 REMANDED Entitlement to an initial compensable rating prior to November 15, 2005, and in excess of 10 percent thereafter for post-operative tendonitis with De Quervain's disease of the right wrist is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 26, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1995 to May 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2011 and September 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, January 2017, and November 2018, the Board remanded the right wrist increased rating matter for additional development. In a September 2016 rating decision, the RO granted entitlement to a TDIU, effective June 26, 2016. The November 2018 Board decision had previously determined the derivative claim of entitlement to a TDIU was not before the Board since the Veteran did not appeal the effective date as to the grant of TDIU in the September 2016 rating decision. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). However, since the last Board decision, the United States Court of Appeals for Veterans Claims (Court) has held that the issue of TDIU is part and parcel of a Veteran's appeal for a higher rating and thus the award of TDIU for a portion of the appeal period does not render the issue moot. See Harper v. Wilkie, 30 Vet. App. 356 (2018); Payne v. Wilkie, 31 Vet. App. 373 (2019). In light of the change in the legal landscape since the Court's issuance of Harper in December 2018, the Board must now consider the issue of TDIU prior to June 26, 2016. As noted in the November 2018 Board decision, the Veteran testified at a personal hearing by videoconference before a member of the Board in June 2014, and a transcript of the hearing is of record. The Veterans Law Judge that conducted the hearing is no longer employed by the Board. The law requires the Veterans Law Judge who conducts a hearing to participate in any decision made on the appeal. 38U.S.C.§7107(c); 38C.F.R.§20.707. The Veteran was notified that the Veterans Law Judge that conducted her hearing is no longer employed by the Board by way of an August 2018 letter. She was offered the opportunity to have a new hearing, and the Veteran has not elected a new hearing. Thus, the Board will proceed to consider the Veteran's claim without additional hearing testimony. Entitlement to an initial rating in excess of 10 percent for post-operative tendonitis with De Quervain's disease of the right wrist (hereinafter "right wrist disability") is remanded. In November 2018, the Board highlighted private treatment records from February 2010 that provided a diagnosis of right carpal tunnel syndrome and noted the December 2010 VA examination indicated reports of numbness and tingling sensations in the Veteran's right hand. The Board found that a remand was warranted to obtain an opinion as to whether the Veteran's carpal tunnel syndrome is related to the right wrist condition. See November 2018 BVA Decision. Pursuant to the November 2018 Board remand directives, the requested VA opinion was obtained in January 2021. The January 2021 VA opinion provided negative etiological opinion solely based on a finding that the Veteran did not have a diagnosis of right carpal tunnel syndrome today or in previous medical records. See January 2021 C&P Exam. However, this is in direct conflict with the February 2010 private treatment record noting right hand pain and numbness and a diagnosis of right carpal tunnel syndrome during the considered period on appeal. See September 2011 Medical Treatment Record Non-Government Facility. The Board finds that the opinion was based on an inaccurate factual premise, which renders the opinion inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). The outcome of this determination would impact whether the reported symptoms of pain and numbness are distinguishable from the Veteran's service-connected right wrist disability and would impact the overall disability picture of the right wrist disability. Thus, a remand is warranted to obtain an adequate opinion that considers the evidence of record, to include addressing the February 2010 private treatment record. Entitlement to a TDIU prior to June 26, 2016 is remanded. As the increased rating claim for the service-connected right wrist disability remains in appellate status and resolution of that claim may affect the Veteran's entitlement to TDIU, the TDIU claim is inextricably intertwined with the increased rating claim and is remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination with an appropriate examiner who has reviewed the claims file in conjunction with the examination. The most current Disability Benefits Questionnaire must be employed, and all relevant findings indicated in that questionnaire must be addressed. The examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Specifically, the examiner must provide an opinion as to whether: (a) The Veteran has a current diagnosis of right carpal tunnel syndrome at any point during the period on appeal (i.e. since May 1999); and (b) If she has a current diagnosis of right carpal tunnel syndrome, is it at least as likely as not (a 50 percent or greater probability) related to service, or caused or aggravated by the service-connected right wrist disability; and (c) If she has a current diagnosis of right carpal tunnel syndrome that is NOT at least as likely as not (a 50 percent or greater probability) related to service, or caused, or aggravated by the service-connected right wrist disability, the examiner is asked to distinguish which symptoms are the result of the service-connected right wrist disability and which symptoms are the result of the right carpal tunnel syndrome, with specific discussion of the Veteran's numbness, tingling, and pain. If the examiner is unable to distinguish which symptoms are the results of which disability, he or she must so state, and explain why, and identify all symptoms that overlap. The Board notes that, if it is not medically possible to distinguish the symptoms and effects of service-connected and nonservice-connected conditions, the reasonable doubt doctrine mandates that all signs and symptoms be attributed to the Veteran's service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). All opinions must be supported by a detailed rationale. All contrary medical opinions and diagnosis must be addressed, to include the February 2010 diagnosis of right carpal tunnel syndrome. 2. Then, readjudicate the claims, including the claim for TDIU prior to June 26, 2016. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.