Citation Nr: 22017316 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 19-14 777A DATE: March 24, 2022 ORDER New and material evidence having been received, the claim for entitlement to service connection for numbness in the left arm is reopened; to this extent only, the claim is granted. Entitlement to service connection for a neck disability, to include paracentral disc protrusion, is granted. REMANDED Entitlement to service connection for numbness in the left arm is remanded. Entitlement to service connection for carpal tunnel syndrome, right wrist is remanded. Entitlement to service connection for carpal tunnel syndrome, left wrist is remanded. FINDINGS OF FACT 1. By a July 2013 rating decision, the Regional Office (RO) denied the Veteran's claim for service connection for numbness in the left arm; he was advised of the RO's decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO's July 2013 decision within one year; nor was new and material evidence received within a year. 3. Additional evidence received since the RO's July 2013 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claim for service connection for numbness in the left arm, and raises a reasonable possibility of substantiating the claim. 4. The Veteran's neck paracentral disc protrusion is related to repeated range of motion of the neck and carrying heavy loads. CONCLUSIONS OF LAW 1. A July 2013 rating decision that denied the claim of entitlement to service connection for numbness in the left arm is final. 38 U.S.C. §§ 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the July 2013 rating decision is new and material, and the Veteran's claim for service connection for numbness in the left arm is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a neck disability, to include paracentral disc protrusion, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to September 1993 and from November 1993 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2013 and January 2014 rating decisions. The Appeals Modernization Act (AMA) became effective February 19, 2019. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review, and is applicable to all claims initially decided after that date. A Legacy appeal is one based on a decision issued prior to the effective date. A Veteran may, under certain circumstances, opt to elect consideration of a Legacy appeal under the AMA provisions. 38 C.F.R. § 3.2400. Here, the Veteran received a January 2019 rating decision and initiated an appeal under the Legacy system. A statement of the case (SOC) was issued in May 2019. The issuance of an SOC in a Legacy appeal provides an opportunity to opt-in to the AMA system. 38 C.F.R. § 3.2400 (a)(2). Here, on the same day and in the same correspondence in May 2019, the Veteran perfected his appeal under the Legacy system and requested direct review by the Board under the AMA. These requests are mutually exclusive; only one may be pursued. In November 2020, the AOJ sent notice to the Veteran requesting the Veteran verify whether he wanted to continue the Legacy appeal or opt in to appeal directly to the Board with the VA Form 10182. On November 25, 2020, the Veteran submitted a letter requesting a virtual hearing under the Legacy docket number. The Veteran was afforded a hearing before the undersigned Veterans Law Judge under the legacy system in April 2021. A transcript of the hearing is associated with the electric claims file. The Board therefore finds that his appeal is properly docketed under the Legacy system. New and Material Evidence 1. Whether new and material evidence has been submitted to warrant reopen the claim for entitlement to service connection for numbness in the left arm In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. The Veteran has claimed entitlement to service connection for numbness of the left arm. In a February 2010 rating decision, the AOJ denied the claim of entitlement to service connection for numbness of the left arm because the evidence did not show the Veteran had a diagnosis for numbness of the left arm. The Appellant did not appeal that decision. Accordingly, the denial is final. 38 U.S.C. § 7105 (c). In a July 2013 rating decision, the AOJ denied the claim of entitlement to service connection for numbness of the left arm because no new and material evidence had been submitted to reopen the claim for entitlement to service connection for numbness in the left arm. The Appellant did not appeal that decision. Accordingly, the denial is final. 38 U.S.C. § 7105 (c). Since the July 2013 rating decision, VA treatment records from January 2010 to July 2015 and from June 2020 to July 2020, private treatment records, lay statements, and a February 2021 private opinion have been associated with the file. VA treatment and private treatment records show the Veteran experienced numbness and weakness in the left upper extremity and left ulnar neuropathy. The lay statements reflect the Veteran continues to experience numbness, tingling, and weakness in his arms. The February 2021 private opinion from Dr. Q.Z. provides a nexus opinion as to whether or not the Veteran's numbness and weakness in the bilateral upper extremities is due to the Veteran's active service. This evidence was not previously on file at the time of the July 2013 decision; thus, it is new. The VA treatment and private treatment records and lay statements are material because they bear directly on the issue of whether the Veteran has a diagnosis, which is one of the reasons that the claim was previously denied. Moreover, the February 2021 private opinion is material because it provides a nexus opinion as to whether or not the Veteran's numbness and weakness in the bilateral upper extremities is due to the Veteran's active service. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for numbness of the left arm, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold for reopening a claim as set forth in Shade, supra. Accordingly, the claim of entitlement to service connection for numbness of the left arm is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Under applicable law, 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 active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). 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 evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 2. Entitlement to service connection for neck paracentral disc protrusion The Veteran contends that his neck paracentral disc protrusion is due to repeated neck motions under heavy loads during active service. See Transcript of April 2021 Board hearing at 3. The Board concludes that the Veteran has a current disability that is related to heavy lifting and heavy physical labor during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A July 2015 private treatment record shows the Veteran has a current diagnosis of disc protrusion at the cervical spine. Thus, the question becomes whether the current disability is related to service. A February 2021 private opinion from Dr. Q.Z. opines that it is more than likely that the Veteran's conditions are a direct result of his prolonged 20 years in military service and working as an infantry man, heavy lifting, and heavy physical labor. The rationale is that repeated neck range of motion under heavy loads exacerbates disc degeneration and can lead to disc bulges and disc herniations. This likely caused subsequent cervical spondylosis, cervical stenosis, and spinal cord compression resulting in neck pain as well as pain numbness and weakness in the bilateral upper extremities. Upon review of the record, the Board finds the evidence shows the Veteran's current neck disability including paracentral disc protrusion is related to service. Accordingly, the Board finds that service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for numbness in the left arm is remanded. The Veteran contends that his numbness in the left arm and bilateral carpal tunnel syndrome first manifested during service. Alternatively, the Veteran contends his numbness in the left arm and bilateral carpal tunnel syndrome is due to compressed nerves in his neck due to repeated neck motion of heavy loads. See Transcript of April 2021 Board hearing at 5. A February 2021 private opinion from Dr. Q.Z. opines that it is more than likely that the Veteran's conditions are a direct result of his prolonged 20 years in military service and working as an infantry man, heavy lifting, and heavy physical labor. The rationale is that repeated neck range of motion under heavy loads exacerbates disc degeneration and can lead to disc bulges and disc herniations. This likely caused subsequent cervical spondylosis, cervical stenosis, and spinal cord compression resulting in neck pain as well as "pain numbness and weakness in the bilateral upper extremities." Dr. Q.Z.'s opinion is directed at the Veteran's neck disabilities and does not specifically link the Veteran's left ulnar neuropathy to the Veteran's neck condition or active service. It is unclear whether Dr. Q.Z.'s reference to "pain numbness and weakness in the bilateral upper extremities" pertains to general cervical radiculopathy to the arms or left ulnar neuropathy which are different conditions but may cause similar symptoms and functional impairment. Therefore, on remand, an opinion should be obtained regarding whether the Veteran's left ulnar neuropathy is due to his neck disability or service. 2. Entitlement to service connection for carpal tunnel syndrome, right wrist is remanded. 3. Entitlement to service connection for carpal tunnel syndrome, left wrist is remanded. The Veteran contends that his bilateral carpal tunnel syndrome first manifested during service. Alternatively, the Veteran contends his bilateral carpal tunnel syndrome is due to compressed nerves in his neck due to repeated neck motion of heavy loads. See Transcript of April 2021 Board hearing at 5. At the April 2021 Board hearing, the Veteran contends that he has both carpal tunnel syndrome and cubital tunnel syndrome and seeks service connection for both. The Veteran is currently already service connected for right cubital tunnel syndrome and cubital tunnel syndrome is ulnar neuropathy. A February 2021 private opinion from Dr. Q.Z. opines that it is more than likely that the Veteran's conditions are a direct result of his prolonged 20 years in military service and working as an infantry man, heavy lifting, and heavy physical labor. The rationale is that repeated neck range of motion under heavy loads exacerbates disc degeneration and can lead to disc bulges and disc herniations. This likely caused subsequent cervical spondylosis, cervical stenosis, and spinal cord compression resulting in neck pain as well as "pain numbness and weakness in the bilateral upper extremities." Dr. Q.Z.'s opinion is directed at the Veteran's neck disabilities and does not specifically link the Veteran's bilateral carpal tunnel syndrome to the Veteran's neck condition or active service. Dr. Q.Z.'s opinion does indicate that the Veteran's ability to grasp items is due to the Veteran's neck disability. Again, it is unclear whether Dr. Q.Z.'s reference to "pain numbness and weakness in the bilateral upper extremities" pertains to general cervical radiculopathy to the arms or carpal tunnel syndrome which are different conditions but may cause similar symptoms and functional impairment. Therefore, on remand, an opinion should be obtained regarding whether the Veteran's carpal tunnel syndrome is due to his neck disability or service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a neurologist (M.D.) to determine the nature and etiology of his numbness of the left arm. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether: a) Is it at least as likely as not (i.e., probability of 50 percent or more) the Veteran's numbness of the left arm (left ulnar neuropathy/left cubital tunnel syndrome) is related to an in-service injury, event, or disease? b) Is it at least as likely as not (i.e., probability of 50 percent or more) that the Veteran's numbness of the left arm (left ulnar neuropathy/left cubital tunnel syndrome) is caused by his service-connected neck disability? c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's numbness of the left arm (left ulnar neuropathy/left cubital tunnel syndrome) was aggravated (worsened beyond its natural progression) by his service-connected neck disability? The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Schedule the Veteran for an examination by a neurologist (M.D.) to determine the nature and etiology of his bilateral carpal tunnel syndrome. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether: a) Is it at least as likely as not (i.e., probability of 50 percent or more) the Veteran's bilateral carpal tunnel syndrome is related to an in-service injury, event, or disease? b) Is it at least as likely as not (i.e., probability of 50 percent or more) that the Veteran's bilateral carpal tunnel syndrome is caused by his service-connected neck disability? c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral carpal tunnel syndrome was aggravated (worsened beyond its natural progression) by his service-connected neck disability? The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.