Citation Nr: A25005366 Decision Date: 01/22/25 Archive Date: 01/22/25 DOCKET NO. 230113-314224 DATE: January 22, 2025 ORDER Entitlement to service connection for left hand tendinitis is dismissed. Entitlement to service connection for right hand tendinitis is dismissed. REMANDED Entitlement to service connection for left elbow lateral epicondylitis is remanded. Entitlement to service connection for left rotator cuff tendonitis with rotator cuff tear is remanded. FINDINGS OF FACT 1. There is no case or controversy regarding entitlement to service connection for left hand tendinitis as the agency of original jurisdiction has already granted entitlement to service connection for left radial nerve radiculopathy (claimed as left upper extremity neuropathy) based on the same symptoms reported for the claim of service connection for left hand tendinitis. 2. There is no case or controversy regarding entitlement to service connection for right hand tendinitis as the agency of original jurisdiction has already granted entitlement to service connection for right radial nerve radiculopathy (claimed as right upper extremity neuropathy) based on the same symptoms reported for the claim of service connection for right hand tendinitis. CONCLUSIONS OF LAW 1. The appeal for the issue of entitlement to service connection for left hand tendinitis is rendered moot and is dismissed. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 20.104. 2. The appeal for the issue of entitlement to service connection for right hand tendinitis is rendered moot and is dismissed. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from November 1992 to August 1996 and from February 2003 to June 2003, with additional National Guard service. In September 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of September 2021 (hands) and April 2022 (elbow and shoulder) rating decisions. In November 2022, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior September 2021 and April 2022 decisions. Therefore, the Board may only consider the evidence of record at the time of the September 2021 and April 2022 decisions and any evidence submitted during an applicable evidentiary window. In the January 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2021 and April 2022 AOJ decisions on appeal which were subsequently subject to higher-level review. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims of left lateral epicondylitis and left shoulder rotator cuff tendinitis with rotator cuff tear, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to service connection for left hand tendinitis Entitlement to service connection for right hand tendinitis The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.?38?U.S.C. §?7104;?38?C.F.R. §?20.104. In an April 2024 rating decision, the AOJ granted entitlement to service connection for left radial nerve radiculopathy (claimed as left upper extremity neuropathy) and right radial nerve radiculopathy (claimed as right upper extremity neuropathy). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Here, the Veteran contended that he developed tendinitis in his hands from repeated movements while performing military duties. He described experiencing tendinitis in both hands with daily pain and trigger finger, periods of inability to move his fingers. The conditions had been treated with tendon release surgeries and local injections. See August 2021 Statements in Support of Claim. Of note, the Veteran is service connected for De Quervain's syndrome of the left and right wrists. See August 2022 Rating decision. He submitted in December 2023 a new claim for left radial nerve radiculopathy and right radial nerve radiculopathy. The Veteran reported to a January 2024 VA examiner that his hands would tingle and go numb while performing military duties. He reported treatment with injections and tendon release surgeries. He reported current difficulty writing or using hand tools. The examiner noted moderate numbness and incomplete paralysis of right and left upper extremity attributable to a peripheral nerve condition. The AOJ awarded service connection for left and right radial nerve radiculopathy (claimed as upper extremity neuropathy) as secondary to service-connected De Quervain's syndrome of the left and right wrists, respectively. See April 2024 rating decision. The Board finds that the disabilities granted service connection as radial nerve radiculopathy manifested in the same symptoms the Veteran reported in the claim for service connection of left- and right-hand tendinitis. A grant of service connection for tendinitis would be impermissible under the "pyramid rule." See Esteban, 6 Vet. App. 259, 262 (1994). Thus, the Board finds that the issues of entitlement to service connection for left hand tendinitis and right-hand tendinitis are moot?and should be?dismissed?as service connection for left and right radial nerve radiculopathy based on the same symptomatology has already been granted and there is no justiciable case or controversy before the Board at this time with respect to this disability. REASONS FOR REMAND 1. Entitlement to service connection for left elbow lateral epicondylitis is remanded. 2. Entitlement to service connection for left rotator cuff tendonitis with rotator cuff tear is remanded. The Veteran contends entitlement to service connection for left elbow lateral epicondylitis and left shoulder rotator cuff due to repetitive motions while performing his military duties. See October 2021 Fully Developed Claim; November 2021 Correspondence. Diagnoses of left lateral epicondylitis and left rotator cuff tendonitis with rotator cuff tear have been established. See December 2021 VA examination. It is undisputed that the Veteran had a current disability during the appeal period. As such, the current disability element of a viable service connection claim is met. The questions for the Board are whether the current disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran was afforded two VA examinations, and submitted a private medical opinion, regarding the left elbow and left shoulder disabilities. However, the Board finds the VA examinations and the private opinion inadequate for adjudication and remand is warranted. An October 2021 Physician's Nexus Statement submitted by the Veteran contains no information other than a license number on the face of the document identifying the provider. A November 2021 statement by the Veteran identified the provider's name which corresponded to medical records in the claim file. See November 2021 correspondence. The clinician opined that the Veteran's left elbow and shoulder conditions were caused by repetitive work, such as that performed by the Veteran during 22 years of military service. The rationale for the opinion was that repetitive work was known to cause the claimed disabilities. Further, the opinion was based on the clinician's professional experience as a board-certified orthopedic surgeon and multiple physical examinations of the Veteran. However, the opinion is based on an inaccurate history as the Veteran had active service for less than five years. "An opinion based upon an inaccurate factual premise has no probative value." See Reonal v. Brown, 5 Vet. App. 458, 460-461 (1993). Further, no reference or citation to medical literature was provided to support the opinion. The December 2021 VA examiner provided a negative nexus opinion regarding the left elbow and left shoulder disabilities and the Veteran's military service. The rationale for the opinion was that the Veteran's service treatment records were silent for complaints involving the left elbow and shoulder and the first notation of complaint was in August 2020. A VA examination is inadequate for adjudicative purposes when a VA examiner relies on the absence of evidence in the service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The examiner also failed to discuss the Veteran's statement regarding repetitive use during military service or his report of onset of symptoms prior to August 2020. Further, no reference or citation to medical literature to support the opinion was provided. A January 2022 VA examination assessed the current functional level of the left shoulder and elbow. No nexus opinion was provided. Thus, the January 2022 VA examination is inadequate for adjudication. The Board acknowledges that once VA undertakes the effort to provide an examination when developing a service connection claim, an adequate examination must be provided. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that the AOJ's failure to obtain an adequate medical opinion was a pre-decisional duty to assist error, and remand is required. See 38 C.F.R. § 20.802(a). The Board also notes lay statements by the Veteran and a fellow servicemember were not addressed by the VA examiner or the private clinician. See November 2021 Correspondence; December 2021 Buddy/Lay Statement. Also, the Veteran submitted after the rating decision on appeal articles regarding musculoskeletal conditions that have not been considered by a VA examiner. See VBMS entry document type "Web/HTML Documents," receipt date 04/18/2022. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's left lateral epicondylitis and left rotator cuff tendonitis with rotator cuff tear. SCHEDULE ADDITIONAL EXAMINATIONS AND TESTING ONLY IF REQUESTED BY THE EXAMINER. The examiner must review the claims file, including a copy of this remand. To assist in a review of the claim file, the examiner is informed of the following facts with citation to the record, when applicable: The Veteran served active duty from November 1992 to August 1996. See VBMS entry document type "Certificate of Release or Discharge from Active Duty," receipt date 02/24/2015. The Veteran served active duty from February 2003 to June 2003. See VBMS entry document type "Certificate of Release or Discharge from Active Duty," receipt date 09/24/2003. February 2003 - diagnosis enlarged lymph nodes, left axilla. See VBMS entry document type "STR," receipt date 03/17/2022, pg. 54. The examiner's review of the file is not limited to the above. In providing the requested opinion, consider the Veteran's description of the in-service injury and symptoms as well as 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 the current disability, this should be noted. Stated another way, do the Veteran's reports about the 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? The examiner is asked to provide a response to the following: Is the left lateral epicondylitis at least as likely as not related to service, including repetitive motion performing military duties during active service? Is the left rotator cuff tendinitis with rotator cuff tear as least as likely as not related to service, including repetitive motion performing military duties during active service? The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. L.M. YASUI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spears, J.E. 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.