Citation Nr: 21040634 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-42 668 DATE: July 6, 2021 ORDER Entitlement to service connection for left carpal tunnel syndrome is denied. REMANDED Entitlement to a rating in excess of 10 percent for right knee disability is remanded. Entitlement to an initial compensable rating for right knee residual surgical scars is remanded. Entitlement to service connection for a left knee disability to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to a finding of total individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The most probative evidence does not relate the Veteran's left carpal tunnel syndrome to active service. CONCLUSION OF LAW The criteria for service connection for left carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from March 1981 to November 1985. These matters come before the Board of Veterans' Appeals (Board) from July 2015 and August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded the issues of entitlement to an increased rating for right knee disability, an initial compensable rating for right knee residual surgical scars, service connection for low back disability, service connection for left knee disability, service connection for carpal tunnel syndrome of the left hand, and entitlement to service connection for an acquired psychiatric disability, to include PTSD, for additional development. An August 2020 rating decision granted service connection for degenerative arthritis with intervertebral disc syndrome. The RO's action is a complete grant of the benefit sought on appeal as to the claim for service connection for low back disability. The issue is no longer on appeal. The remaining issues remanded by the Board in December 2018 have been returned for review. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans' Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The Veteran contends that he is unemployable due to his service-connected disabilities, including those on appeal. Accordingly, the Board finds that Rice is applicable and TDIU is inferred as part of the claims for increased ratings and is an issue on appeal. Service connection for left carpal tunnel syndrome Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records do not reveal any notation or diagnosis pertaining to left carpal tunnel syndrome. In July 1984, the Veteran was treated for a sprain of the left thumb after playing softball. The x-ray was within normal limits. The 1985 report of medical history shows that the Veteran denied any neuritis. Following separation from service, the Veteran was evaluated by VA examination in December 1985. There was no complaint concerning the left upper extremity and the Veteran's neurologic condition was evaluated as normal. There is no evidence of carpal tunnel syndrome until more than a decade after separation from active service. In April 2019, the Veteran was provided a VA medical examination that complies with the Board's prior remand. The report shows a diagnosis of carpal tunnel syndrome with a date of diagnosis in 1999. The Veteran reported that his symptoms initially began in 1999 and had a left carpal tunnel release in 2000. He stated that his symptoms returned. The VA examiner provided a negative etiology opinion. The examiner explained that the Veteran reported that his symptoms onset after service. The Veteran also reported his belief that his symptoms were due to repetitive work as an orthopedic technician, but that activity occurred after service. The examiner explained that while distal radius fractures had been known to contribute to the development of carpal tunnel syndrome, he was not aware of evidence to support a connection between carpal tunnel syndrome and a jammed thumb. The Veteran first had his carpal tunnel syndrome treated in 1999, almost 15 years after his separation from service. The Board attributes great probative value to the VA examiner's opinion. The examiner reviewed the evidence, examined the Veteran, and provided an adequate opinion with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the Board recognizes that the Veteran has some medical knowledge due to his military occupational specialty as medical specialist. However, he has not been shown to have the specific knowledge and expertise to diagnose neurological disabilities such as carpal tunnel syndrome or to provide an etiological opinion that it is related to a left thumb sprain during active service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In this respect, the Board assigns greater probative value to the VA examiner's opinion who has the requisite medical expertise and knowledge to provide such an opinion. In light of the above, service connection for left carpal tunnel syndrome is not warranted. A preponderance of the evidence is against the claim and the claim is denied. REASONS FOR REMAND Evaluation of right knee In June 2021, the Veteran submitted a TDIU application. He stated that all of his service-connected disabilities rendered him unemployable and identified current medical treatment concerning his service-connected disabilities. He has recently been asked to complete release forms for the identified providers. Because the Veteran has identified relevant private records, the Board finds that it would be premature to adjudicate the increased rating issues on appeal and remand is required. Service connection for a left knee disability First, the Veteran has identified recent left knee surgery, but those records are not associated with the claims folder. The Veteran must be asked to complete and return a release form for the identified private treatment records or be given the opportunity to submit the records himself. In addition, an addendum medical opinion must be obtained concerning the etiology of the Veteran's left knee disability. The April 2019 VA examiner expressed a negative opinion concerning direct service connection, but has not addressed the argument that the Veteran's left knee disability is secondary to his service-connected disabilities. Service connection for an acquired psychiatric disability In June 2020, the VA examiner opined that the Veteran did not have a diagnosis of PTSD and that the condition claimed was less likely than not related to service. In part, the examiner reasoned that there was no evidence of a depressive disorder within one year after separation from active service. The examiner also stated that the Veteran reported depression at or near the time of discharge, but that there was no documentation to link the diagnosis to active service. The examiner did not address any of the lay statements from the Veteran or from his mother, rendering the opinion inadequate. In addition, the examiner did not address the diagnosis of personality disorder in current VA medical treatment records. Personality disorders are considered congenital or developmental defects and not diseases or injuries within the meaning of applicable legislation and, therefore do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Service connection, however, can be granted for additional disability resulting from a mental disorder that is superimposed upon the personality disorder. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also VAOPGCPREC 82- 90, 55 Fed Reg. 45,711 (July 18, 1990). Because the VA examiner's opinion did not adequately address whether any psychiatric disorder was superimposed on the Veteran's personality disorder resulting in additional disability, an opinion is required. In addition, while the VA examiner provided an opinion as to direct service connection, the examiner did not address whether a psychiatric disorder is secondary to the Veteran's service-connected disabilities and an opinion is required. TDIU The Veteran's TDIU claim is inextricably intertwined with the increased rating claims remanded herein, and adjudication must be deferred pending completion of the requested development. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed releases for any private care providers who have treated him for any claimed conditions. Releases for Alaska Regional Hospital should be specifically requested. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself 2. Obtain an addendum opinion from an appropriate clinician concerning the Veteran's left knee disability. The claims folder must be made available for review. The examiner must opine whether it is at least as likely as not that any left knee disability is proximately due to or aggravated by a service-connected disability. A full and complete rationale must be provided for any opinion reached. 3. Obtain an addendum opinion from an appropriate clinician concerning the Veteran's claimed acquired psychiatric disorder, including PTSD and unspecified depressive disorder. The claims folder must be made available for review. (a.) The examiner must opine whether it is at least as likely as not (50 percent probability or higher) that any psychiatric disability, to include PTSD and depressive disorder, is related to service. (b.) The examiner must also opine whether it is at least as likely as not (50 percent probability or higher) that any psychiatric disability superimposed on a personality disorder resulting in additional disability. If so, identify the additional disability. (c.) Is it at least as likely as not (50 percent probability or higher) that any acquired psychiatric disorder is proximately due to or aggravated beyond its natural progression by a service-connected disability? A full and complete rationale must be provided for any opinion reached. The examiner must address the Veteran's statements and his mother's statement in addition to the articles submitted by the Veteran. 4. Following completion of the above and any other development deemed necessary, readjudicate the matters on appeal. If the benefits sought remain denied, return the matters to the Board for review, if in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.