Citation Nr: 22016130 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-21 648 DATE: March 21, 2022 REMANDED Entitlement to service connection for a cervical spine disability, including degenerative disc disease (DDD), is remanded. Entitlement to service connection for bilateral (left and right wrist) carpal tunnel syndrome, also claimed as bilateral arm neuropathy, is remanded. Entitlement to a rating higher than 40 percent for enucleation of the left eye with residual right eye strain is remanded. REASONS FOR REMAND The Veteran served honorably in the Army from October 1967 to October 1970 and from January 1971 to May 1978. His awards and decorations include the Vietnam Service Medal, Combat Infantry Badge, and Purple Heart Medal. In September 2021, he testified a hearing at the local Regional Office (RO) before the undersigned Veterans Law Judge (VLJ) of this Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. A transcript of the hearing is of record. 1. Entitlement to service connection for a cervical spine disability, including DDD, is remanded. 2. Entitlement to service connection for bilateral (left and right wrist) carpal tunnel syndrome (CTS), also claimed as bilateral arm neuropathy, is remanded. The Veteran's claim of entitlement to service connection for bilateral CTS was previously considered and denied in a March 2006 decision of this Board. Decisions of this Board usually are final and binding determinations unless some exception to this "finality" applies such as the Veteran appealed the decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC), the Chairman of the Board orders reconsideration of the decision, or it is determined the decision involved clear and unmistakable error (CUE). See 38 C.F.R. § 20.1100. A more recent August 2012 RO rating decision denied an evaluation higher than 20 percent for a herniated disc of the lumbar segment of the Veteran's spine, and the rating code sheet additionally indicates that the DDD and degenerative joint disease (DJD), i.e., arthritis of the cervical segment of his spine with bilateral (left and right) arm neuropathy conversely was not a service-connected disability. That decision also is a final and binding determination absent some exception such as he appealed that decision to this Board, it involved CUE, or for some reason has remained pending. See 38 C.F.R. § 20.1103. Absent an exception, new and material evidence is required to reopen the claim and warrant readjudicating it on its underlying merits, de novo. See 38 C.F.R. § 3.156. However, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file at the time of the prior decision, VA will reconsider the claim without the need for new and material evidence. 38 C.F.R. § 3.156(c)(1). In this case, additional relevant service records related to the claimed in-service event were received in April 2015, and there is no indication those records did not previously exist or that the Veteran had not provided sufficient information to obtain them. See 38 C.F.R. § 3.156(c)(1)-(2). Thus, these claims will be considered de novo, i.e., do not have to be reopened. Id. The Veteran has a current diagnosis of cervical spine DDD and testified during his hearing that he believes he injured his cervical spine (not just his lumbar spine) when he was blown backwards during a landmine blast while in combat in Vietnam. He is credible in this assertion. He similarly testified that he believes his currently diagnosed CTS also is attributable to that same landmine explosion. Alternately, he contends that his CTS is caused by his cervical spine condition, so in this way also secondarily related to his service since the cervical spine condition is attributable to his service. He additionally contends that he developed CTS owing to the numerous times he was required to jump out of helicopters and catch himself with his hands during his service in Vietnam including in combat. Because the Veteran was a combat infantryman in Vietnam, the combat presumption applies. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). According to the holding in Reeves, and that line of precedent cases, since the injuries in question are alleged to have occurred in combat, there does not have to be documentation of them in the service treatment records (STRs); indeed, this is not considered to be a reasonable expectation since injuries sustained in combat often are not or, in fact, cannot be reported because of the very nature of the situation, i.e., hostile environment. However, the combat presumption only establishes relevant injury in service; there still must be attribution of the disability now being claimed to the combat injury. The Veteran went on to explain during his hearing that he did not initially realize he was hit or the gravity of his injuries because he was so busy bandaging another soldier that was more severely injured. Service connection is permissible for a disability initially diagnosed after discharge from service if the evidence, including that pertinent to service, establishes the disability was incurred in service. See 38 C.F.R. § 3.303(d). The Veteran has not had a VA compensation examination in response to his claims for either of these conditions. But given there is no disputing he has a current cervical spine disability, as well as CTS, and has credibly testified to potentially relevant combat injuries in service that may have caused or account for these disabilities, the "low" threshold is met requiring the Board to obtain a medical opinion concerning this posited correlation ("nexus"). McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to a rating higher than 40 percent for enucleation of the left eye with residual right eye strain is remanded. The Veteran contends he is entitled to a higher rating for this disability because of 7 or more incapacitating episodes that have occurred in the previous 12 months. He was last provided a VA eye examination in July 2016, so more than 512 years ago. During that evaluation, the examiner indicated that visual field testing was performed using Goldmann's testing; however, the specific results of the test, including the visual field chart, were not provided in the examination report, and are not otherwise associated with the Veteran's claims file. Prior to the May 13, 2018, revised rating criteria, the former rating criteria required that the results of visual field testing must be recorded on a standard Golmann's chart, and that the chart must be included with the examination report. See 38 C.F.R. § 4.77 (2017). Since the enucleation (removal) of the Veteran's left eye with consequent residual right eye strain causes visual field impairment, the results of any visual field testing are vital in adjudicating his claim for an increased rating. Accordingly, if possible, the Board must obtain the Goldmann's visual field chart results from the July 2016 VA examination. But, even aside from that, since it now has been so relatively long since the Veteran was last examined for compensation purposes, he should be reexamined to reassess the severity of this service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Allday v. Brown, 7 Vet. App. 517, 526 (1995). This additional examination also will allow the examiner to provide an opinion on whether the Veteran has experienced any incapacitating episodes during the review period under consideration. Prior to the May 13, 2018, revised rating criteria, an incapacitating episode is considered a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. As of May 13, 2018, according to the current rating criteria, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Examples of treatment may include, but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. The Board also sees the Veteran's most recent VA treatment records are not associated with the claims file, so appropriate efforts must be made to ensure that all pertinent VA and private treatment records are obtained and associated with the claims file. Accordingly, these claims are REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records. This specifically includes, but is not limited to, the visual field testing and accompanying Goldmann's Chart from the July 2016 VA eye examination. 2. Obtain a medical nexus opinion concerning whether it is as likely as not (50 percent or greater probability) the Veteran's cervical spine disability, including DDD, and the CTS of his left and right wrists are related or attributable to his military service including especially to the combat injuries he sustained during his service in Vietnam and/or the numerous times he was required to jump out of helicopters and catch himself with his hands during his service in Vietnam, including in combat. (a.) To this end, the examiner is specifically asked to comment on the Veteran's reports of being thrown back ("blown off of his feet") and sustaining injuries from a landmine explosion and his reports of regularly jumping out of helicopters with heavy equipment and catching himself with his hands. (b.) If the Veteran's CTS is not found to be directly related to his military service, including to his combat injuries and activity in Vietnam, the examiner is asked to alternatively indicate whether it is as likely as not instead secondarily related to his service meaning caused OR aggravated by his cervical spine disability (if the cervical spine disability, itself, is attributed to his service). 3. Also schedule the Veteran for an eye examination to reassess the severity of the service-connected enucleation of his left eye with residual right eye strain including to provide an opinion concerning whether he has had any incapacitating episodes during the review period under consideration meaning since May 24, 2016, or thereabouts. To this end, the examiner must provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria. Regarding incapacitating episodes, the examiner is reminded that: (a.) prior to the May 13, 2018, an incapacitating episode is considered a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. (b.) As of May 13, 2018, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Examples of treatment may include, but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Rationale for the responses is essential, regardless of whether favorable or conversely unfavorable to the claims, preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.