Citation Nr: 23019368 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 19-01 788 DATE: March 29, 2023 ORDER The previously denied claim of service connection for a back disability is reopened. REMANDED Entitlement to a rating higher than 10 percent for left lower extremity exertional compartment syndrome is remanded. Entitlement to a rating higher than 10 percent for right lower extremity exertional compartment syndrome is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for left upper extremity carpal tunnel syndrome is remanded. Entitlement to service connection for right upper extremity carpal tunnel syndrome is remanded. FINDINGS OF FACT 1. A December 2015 rating decision denied entitlement to service connection for a back disability. The Veteran did not appeal that decision, and no new or material evidence was received within a year of the December 2015 rating decision. 2. Since the December 2015 rating decision, new evidence has been added to the claims file that relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The December 2015 rating decision denying service connection for a back condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. 2. New and material evidence has been received to reopen of the claim of service connection for a back disability. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from August 1999 to July 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Agency or Original Jurisdiction (AOJ). On her January 2019 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. In March 2022 correspondence, VA informed the Veteran of the date, time, and location of her upcoming Board hearing. The Veteran failed to attend the scheduled hearing, and did not provide a reason for her failure to appear. The hearing request is considered withdrawn. New and Material Evidence - Service Connection No new or material evidence is required to reopen claims for service connection for carpal tunnel syndrome of the right and left upper extremities. A September 2016 rating decision denied entitlement to service connection for right and left upper extremity carpal tunnel syndrome on the grounds that there was no evidence the condition had onset in service or was otherwise related to service. In August 2017, within a year of that decision, the Veteran wrote that carpal tunnel syndrome was related to heavy computer use when she was in service. That statement was new and relevant to whether currently diagnosed carpal tunnel syndrome was related to service. Because that statement was received within a year of the September 2016 rating decision, that decision did not become final. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (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). 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, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. The previously denied claim of service connection for a back disability is reopened. Entitlement to service connection for a back injury was first denied in a December 2015 rating decision because the evidence did not show that the Veteran's current back condition was related to a 2000 in-service back injury. The evidence available at the time of that decision included the Veteran's service treatment records (STRs), Social Security Administration (SSA) records, and private and VA treatment records. The STRs show the Veteran was treated for muscle irritation of the back after falling from a sled onto her lower back in December 2000. On the May 2002 report of medical history at separation, the Veteran denied recurrent back pain or any back problem. Private treatment records then show that the Veteran had back pain in June and July 2014 after a move and then after picking up a laundry basket. September 2014 private imaging studies showed degenerative changes of the lumbar spine. Those records did show an in-service back injury and current back diagnosis, but no relationship between the two. The Veteran did not appeal the December 2015 rating decision. Additional private records and VA records were received within a year of that decision, but they were not relevant to the issue of entitlement to service connection for a back disorder. The December 2015 rating decision became final based on the evidence of record at the time of that decision. The Veteran filed a claim to reopen the previously denied claim for service connection for a back disability in July 2016, which was denied in a September 2016 rating decision on the grounds that no new or material evidence had been received since the December 2015 rating decision. Procedurally, the Veteran did not appeal that decision, but instead filed a claim to reopen in June 2017 that was denied in a July 2017 rating decision. Although she only filed a notice of disagreement (NOD) to the July 2017 rating decision, her August 2017 NOD contained new and material evidence such that the September 2016 rating decision did not become final and the claim may also be reopened. In her August 2017 NOD, the Veteran wrote that she had constant back pain after the in-service fall. At the time of the December 2015 rating decision, there was no evidence of chronic back symptoms since service. The statement is new, and it relates to a fact necessary to substantiate the claim: an indication of a relationship between the Veteran's current back condition and her period of service. For the purposes of reopening the claim only, the lay testimony is deemed credible. The evidence also raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, the claim for service connection for a back disability is reopened. REASONS FOR REMAND All issues are remanded to secure potentially outstanding federal records. VA treatment records dated August 2013 document the Veteran was being treated by Army doctors in Virginia where her husband was stationed. Those records are not in the claims file and it does not appear any effort has been made. VA must undertake appropriate efforts to identify and obtain these federal records. 2. Entitlement to a rating higher than 10 percent for left lower extremity exertional compartment syndrome is remanded. 3. Entitlement to a rating higher than 10 percent for right lower extremity exertional compartment syndrome is remanded. These issues are remanded to secure an adequate VA examination that fully captures the severity of the Veteran's disability. The Veteran most recently underwent a VA knee and lower leg conditions examination in August 2018. At that time, she reported flares of right and left shin symptoms. The examiner stated that the service-connected shin splints affected the range of motion of the knees. That examiner then stated they were unable to provide an estimate of any additional loss of function in terms of range of motion for the knees after repetitive use over time or during flares without resort to mere speculation because "the degree of limitation would depend on the activity being performed and the duration of that activity." In increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner's failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner's statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician's Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN'S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record- including the veteran's lay information-or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. The 2018 examination report failed to adequately document and consider lay testimony of additional functional impairment after repetitive use over time and during flares. The examiner stated the opinion would depend on different activities, but failed to elicit or document lay testimony of impairment during different activities. The resulting opinion appears based on the absence of procurable lay testimony, so remand is required. 4. Entitlement to service connection for a back disability is remanded. This issue is remanded to secure an addendum opinion on the etiology of the claimed back disability. The Veteran underwent a VA back examination in July 2017. The examiner opined that the diagnosis of "a back condition," including mild to moderate degenerative changes with foraminal stenosis, was not related to the in-service back injury. The examiner then stated it would be resorting to mere speculation to establish a relationship between the current condition and the in-service complaints due to the lack of treatment records from the time of separation from service until 2014. Since that examination, the Veteran has asserted that she has had chronic back symptoms since service. Without reaching any conclusion on the credibility of those statements, remand is necessary for an addendum that addresses this lay testimony. 5. Entitlement to service connection for left upper extremity carpal tunnel syndrome is remanded. 6. Entitlement to service connection for right upper extremity carpal tunnel syndrome is remanded. These issues are remanded to secure a VA examination and opinion. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The record shows the Veteran is diagnosed with right and left upper extremity carpal tunnel syndrome, thus there is a current disability. Her DD 214 shows that her military occupational specialty was a finance specialist, and she asserts her current carpal tunnel syndrome is related to heavy computer use in service as part of her duties. The evidence indicates a currently diagnosed disability may be related to the Veteran's in-service duties, so remand for a VA examination and opinion is required. The matters are REMANDED for the following action: 1. Undertake necessary efforts to identify and obtain any federal treatment records, to specifically include from any Army doctors in Virginia. Ensure that the search is for the Veteran as a dependent, rather than as an active duty servicemember. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral shin splints. 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. (a.) 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). (b.) The examiner must 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). 3. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the claimed back disability. The examiner is requested to answer the following: (a.) Is the Veteran's claimed back disability related to the in-service 2000 back injury? Why or why not? (b.) Did degenerative arthritis of the spine (1) begin during active service, (2) manifest within one year of separation from service, or (3) was degenerative arthritis noted during service with continuity of the same symptomatology since service? Why or why not? The examiner must review the claims file and consider the lay testimony of chronic back symptoms since service when providing a rationale for their conclusions. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA examination for her claimed bilateral carpal tunnel syndrome. The examiner must review the claims file. The examiner is requested to answer the following: (a.) Is left or right upper extremity carpal tunnel syndrome related to service, including extensive computer use/typing in service? Why or why not? (b.) In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.