Citation Nr: 21039845 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-30 799 DATE: July 1, 2021 ORDER Service connection for carpal tunnel syndrome of the right upper extremity is denied. Service connection for carpal tunnel syndrome of the left upper extremity is denied. A disability rating in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD) prior to July 30, 2018 and in excess of 70 percent thereafter is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had carpal tunnel syndrome of the upper extremities at any time during or approximate to the pendency of the claim. 2. Prior to July 30, 2018, the Veteran's PTSD symptoms more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. As of July 30, 2018, the Veteran's PTSD symptoms more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for carpal tunnel 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. 2. The criteria for an award of service connection for carpal tunnel syndrome of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Prior to July 30, 2018, the criteria for an award of a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 4. From July 30, 2018, the criteria for an award of a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1988 to May 1995. He served in the National Guard and is a Gulf War Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, to include obtaining treatment records, as well as the requested VA examinations and medical opinion, the AOJ confirmed and continued the prior denial(s) and returned the case to the Board. See July 2020 supplemental statement of the case. The Board finds that there has been substantial compliance with the May 2019 Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Although not developed as a distinct issue, the issue of entitlement to a TDIU is a component of the increased rating claim on appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). In this case, this issue has been raised by the record, as explained below. Service Connection 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, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the of filing the claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, such as organic disease of the central nervous system, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for carpal tunnel syndrome of the right upper extremity is denied. 2. Service connection for carpal tunnel syndrome of the left upper extremity is denied. The Veteran seeks to establish service connection for carpal tunnel syndrome of the upper extremities, which he attributes to his military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of carpal tunnel syndrome of the upper extremities and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. The Veteran's service treatment records are silent for any complaint, treatment, or diagnosis regarding bilateral carpal tunnel syndrome. During a November 2011 hand and finger examination, the VA examiner found that the Veteran did not have a hand condition. Likewise, the November 2019 VA examiner indicated that the Veteran did not present with a current disability of carpal tunnel syndrome. The November 2019 examiner found it was less likely than not that a bilateral carpal tunnel syndrome was incurred in or cause by service. The VA examiner explained that the examination did not document a peripheral nerve condition and that carpal tunnel syndrome is not associated with symptoms the Veteran reported. Additionally, there was no weakness or sensory loss on examination. The opinion is competent and probative evidence. The examiner reviewed the claims file, interviewed the Veteran, and performed an appropriate examination. Moreover, the opinion clearly reflects consideration of the Veteran's medical history and lay statements. As the VA examiner explained the reasons for the conclusion based on an accurate characterization of the evidence, and reading the opinion as a whole and in the context of the evidence of record, the opinion is afforded high probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that a July 2014 VA treatment record shows a "provisional diagnosis" of carpal tunnel syndrome and recommend wearing wrist splints after he was found to have positive Tinel's and Phalen's signs bilaterally at the wrist. However, these records do not show that he had a confirmed diagnosis of bilateral carpal tunnel syndrome during the appeal period. The Veteran has not otherwise submitted or identified any other medical evidence that establishes a diagnosis of bilateral carpal tunnel syndrome. While a diagnosis is not always necessary to establish the presence of a current disability, which may be demonstrated by evidence of functional impairment of earning capacity (Saunders, 886 F.3d 1356), the Veteran has not provided such evidence. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, as a lay person without the appropriate medical training and expertise, the Veteran is not competent to provide a probative opinion that he has bilateral carpal tunnel syndrome. Bostain v. West, 11 Vet. App. 124 (1998). Although lay persons are competent to provide opinions on some medical issues, the specific disability in this case, carpal tunnel syndrome, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Neurological disorders require specialized training and medical diagnostic testing for a determination as to diagnosis. There are many different possible neurological disorders, and a layperson is not competent to diagnose them or to provide an etiology. Consequently, the Board gives more probative weight to the competent medical evidence. Because a current disability has not been shown by competent evidence, the Board does not reach the additional questions of in-service injury, disease, or event, or the relationship between any such current disability and service. Based on the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Higher Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 3. A disability rating in excess of 30 percent for service-connected PTSD prior to July 30, 2018 and in excess of 70 percent thereafter is denied. In his August 2013 increased rating claim, the Veteran generally asserted that his PTSD symptoms were more severe than his rating reflected. He specifically contends in his June 2016 appeal to the Board that he has a panic attack each day, is unable to complete tasks on time or forgets tasks, has frequent mood swings, is more suspicious of others, has increased insomnia, and requires medication for hallucinations and nightmares. In an October 2018 rating decision, the RO granted the Veteran an increased rating for his service-connected PTSD, from 30 percent to 70 percent effective July 30, 2018. As the RO's actions do not constitute a full grant of the benefit sought and the Veteran has not expressed satisfaction with the increased rating, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran's PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affected the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board will consider whether the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, and, if so, the equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Use of the term "such as" in the general rating formula for mental disorders at 38 C.F.R. § 4.130 indicates that the symptoms after that phrase do not constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A June 2014 VA examination report detailed the Veteran's complaints of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbance of motivation and mood. The examiner noted that while the Veteran's mood/affect was dysphoric and he was tearful at times, the Veteran was otherwise pleasant and polite with spontaneous, normal, and easily understood speech. The Veteran did not appear unusually anxious or show signs of psychosis or unusual behavior. He was neatly dressed and groomed with good hygiene. The examiner concluded that the Veteran's PTSD symptoms manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The report of a July 2018 VA examination described the Veteran's complaints of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner noted that the Veteran was polite and dressed appropriately, however the Veteran's eye contact was poor, his affect was flat, and he stared at his phone during the interview. The examiner concluded that the Veteran's PTSD symptoms manifested as occupational and social impairment with reduced reliability and productivity. Medical treatment notes throughout the appeal periods generally reflect symptoms consistent with those reported in the VA examination reports of record. The medical treatment records reflect that the Veteran uses prescription medication to manage his PTSD symptoms and meets with a mental health nurse for coordination of care and medication management. The record shows that the Veteran responded well to medication. Medical treatment notes for the appeal period consistently reported the Veteran as well-groomed, cooperative, having normal intellectual functioning, and good thought processes with appropriate response without psychotic thinking or suicidal ideation. While the Veteran reported hallucinations in a June 2014 treatment note, he denied hallucinations during the July 2014 VA examination. Notably, the record shows no other complaints of hallucinations. After careful review of the record, the Board finds that a rating in excess of 30 percent for the appeal period prior to July 30, 2018 for the Veteran's service-connected PTSD is not warranted. To warrant a higher rating of 50 percent, the evidence must demonstrate that the Veteran's PTSD symptoms cause or more nearly approximate occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130, Diagnostic Code 9411. The evidence weighs against such a finding. There is no evidence that the Veteran had significant difficulty with speech, insight, or judgment. He did not have delusions or persistent hallucinations. Further, he was able to perform activities of daily living independently. At his June 2014 VA examination he did not have any suicidal thoughts or ideations. Additionally, at that VA examination he was reported as alert, oriented, with clear thought and rationale. Treatment records do not show severe symptoms such as suicidal ideation, severe obsessive ritual, or serious impairment in social or occupational functioning. Additionally, the June 2014 VA examiner assessed that the frequency, severity, and duration of the Veteran's PTSD symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is consistent with the 30 percent rating criteria. The Board finds the medical examiner's assessment is well-reasoned and thorough, having considered the entire record, including the Veteran's medical history, and provides specific medical evidence for the opinions rendered. The medical opinion warrants high probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Even if the Veteran endorses some symptoms which are listed under the higher rating criteria, the evidence of record does not show that frequency, severity, and duration of these symptoms caused occupational and social impairment with reduced reliability and productivity. Thus, the Board finds that a rating in excess of 30 percent for PTSD is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. While there may have been day-to-day fluctuations in the manifestations of the Veteran's PTSD, the evidence shows no distinct periods of time from August 13, 2012 to July 30, 2018 when the Veteran's disorder varied to such an extent that a rating greater than 30 percent would be warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching this decision, the Board has considered and attributed all potentially service-connected symptoms to the Veteran's PTSD in determining that a rating in excess of 30 percent prior to July 30, 2018 is not warranted. Mittleider v. West, 11 Vet. App. 181 (1998). The Board next finds that a rating in excess of 70 percent, from July 30, 2018, for the Veteran's service-connected PTSD is not warranted. There is no probative evidence at any time throughout this demonstrating that the Veteran's PTSD has been productive of total occupational and social impairment. Importantly, no VA examiner or treatment provider has found the Veteran to experience total occupational and social impairment caused by his PTSD. There is no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior, inability to perform activities of daily living, or disorientation to time or place. Further, evidence of record fails to find the Veteran has suicidal ideation, severe obsessive rituals, or severe social impairment. Indeed, all medical treatment notes and examination have noted the Veteran to be well-groomed, cooperative, have normal intellectual functioning and thought content with appropriate response, and without psychotic thinking and/or suicidal ideation. The July 2018 VA opinion is shown to have been based upon thorough examinations and review of the evidence of record, and, as such, the Board considers it probative and persuasive. Although his symptoms as of July 30, 2018 caused difficulty with both occupational and social functioning, he was not totally socially and occupationally impaired, and a 100 percent rating for this time period is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. In reaching this conclusion, the Board notes that the Veteran is competent to report symptoms of his PTSD, but not to identify a specific level of disability. The medical findings in this case directly address the criteria under which this disability is evaluated, and the objective medical evidence is accorded greater weight than the subjective complaints of increased symptomatology. Therefore, the preponderance of the evidence is against the claim for a higher rating. 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. As noted above, under Rice, the higher rating claim includes the component of TDIU entitlement as it was raised by the record. Here, the Veteran indicated in VA treatment notes that his service-connected PTSD has impaired his ability to work. Moreover, at his July 2018 VA examination, he reported that he last worked the previous year. Based on the foregoing, the Board finds evidence to suggest that the Veteran may have been unemployable due to the service-connected disabilities. The Veteran has not been provided with the appropriate VCAA notice in conjunction with the raised claim for a TDIU. Moreover, any records or evidence identified by the Veteran as relevant to a claim for TDIU should be obtained; therefore, on remand, after providing appropriate notice to the Veteran, such records should be requested. The matter is REMANDED for the following action: 1. Provide the appropriate VCAA notice relating to a claim for a TDIU, and perform any development deemed necessary (such as submission by the Veteran of a VA Form 21-8940). 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, adjudicate the TDIU claim. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Duke, 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.