Citation Nr: 21029807 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-39 003 DATE: May 17, 2021 ORDER Entitlement to service connection for right upper extremity grip loss is denied. Entitlement to service connection for left upper extremity grip loss is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for a right shoulder disability is remanded. Entitlement to a disability rating in excess of 20 percent for a left shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran's right upper extremity grip loss is not secondary to the Veteran's service-connected shoulder disability and is not otherwise related to an in-service injury or disease. 2. The Veteran's left upper extremity grip loss is not secondary to the Veteran's service-connected shoulder disability and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right upper extremity grip loss due to service or service-connected shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for left upper extremity grip loss due to service or service-connected shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from September 1953 to June 1966. In October 2020, the Board remanded these matters for VA medical examinations. Regarding the service connection claims for right and left upper extremity grip loss, the examinations have been provided. There has been substantial compliance with the prior remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Regarding the claims for increased ratings for right and left shoulder disabilities, remand is again warranted to ensure the Veteran all due process. Service Connection 1. Entitlement to service connection for right upper extremity grip loss 2. Entitlement to service connection for left upper extremity grip loss The Veteran contends he suffers from right and left loss of grip due to his service-connected shoulder disabilities. The Veteran does not contend, and the evidence does not show, that the Veteran's right and left upper extremity loss of grip is directly related to service. Rather, the Veteran contends that his fingers were going numb as part of his shoulder disabilities. See September 2018 Notice of Disagreement. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Analysis An April 2019 VA treatment record notes that the Veteran had weakened grip in both hands. At an April 2019 VA neurology consultation, the Veteran was diagnosed with bilateral carpal tunnel syndrome and ulnar neuropathy. Therefore, the evidence shows that the Veteran has a current disability of loss of grip in both the left and right upper extremities. The question for the Board is whether the Veteran's bilateral loss of grip was caused by or aggravated by the Veteran's service-connected shoulder disabilities. The Veteran was provided with a VA shoulder and arm condition examination in January 2021. The VA examiner reviewed the Veteran's medical history contained in his VA e-folder and VA electronic health record, and conducted an in-person examination of the Veteran. The examiner concluded that the Veteran's bilateral loss grip is less likely than not proximately due to or the result of the Veteran's service-connected shoulder condition. The examiner noted that the Veteran was evaluated by a neurologist for his bilateral hand weakness in April 2019. Electromyography (EMG) and nerve conduction velocity (NCV) testing performed that month revealed both bilateral ulnar neuropathy at the wrist plus severe bilateral carpal tunnel syndrome. The examiner explained that these conditions are caused by nerve impingement at the wrist and have nothing to do with the shoulder issues. The examiner also found that the Veteran's hand weakness was not aggravated by his service-connected shoulder conditions, as problems in the shoulders would not aggravate a nerve impingement at the wrist. The Board acknowledges the lay statements made by the Veteran that his bilateral hand loss of grip is related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing numbness and weakness in the hands). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, a layperson without the appropriate medical training and expertise is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and a service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The January 2021 VA examiner reviewed the record, interviewed the Veteran, and examined the Veteran. The examiner's opinions were based on the specific facts of this case as presented in the record and by the Veteran at an in-person examination. The examiner reviewed the record and provided appropriate rationales are factually accurate, fully articulated, and soundly reasoned. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board accepts the VA examiner's opinions as the most probative evidence as whether it is less likely than not that the Veteran's bilateral hand loss of grip is related a service-connected disability. In sum, the competent evidence of record weighs against the Veteran's assertion that his bilateral loss of grip is secondarily related to his service-connected shoulder disabilities. Based on the results of a neurology consultation, the VA examiner found that the Veteran's bilateral weakness and numbness of the bilateral hands is related to carpal tunnel syndrome and ulnar neuropathy, which would not be caused or aggravated by a shoulder disability. Although grateful for the Veteran's honorable service, the Board concludes that the preponderance of the evidence is against the claims for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for a right shoulder disability is remanded. 2. Entitlement to a disability rating in excess of 20 percent for a left shoulder disability is remanded. The Veteran's left and right shoulder conditions are rated under hyphenated Diagnostic Code (DC) 5003-5201, which indicates degenerative joint disease (DC 5003) rated on the basis of limitation of arm and shoulder motion (DC 5201). Effective February 7, 2021, Diagnostic Codes related to the musculoskeletal system, including DC 5201, have been updated. See 85 Fed. Reg. 76453 (Nov. 30, 2020). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and the more veteran-favorable criteria will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). To ensure that the record reflects the current extent of the disability, an examination with findings responsive to the pertinent rating criteria is needed. Therefore, the Veteran should be scheduled for an updated VA examination of his shoulder disabilities on remand. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right shoulder disabilities. 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 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). 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 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 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). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.