Citation Nr: 1803817 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 11-32 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus. 2. Entitlement to service connection for a bilateral neurological disorder of the lower extremities, to include as secondary to the service-connected lumbar spine disorder. 3. Entitlement to service connection for a bilateral neurological disorder of the upper extremities, to include radiculopathy, median neuropathy, and ulnar neuropathy, include as secondary to the service-connected cervical spine disorder. 4. Entitlement to initial increased disability ratings for the service-connected lumbar spine degenerative disc disease, rated as 20 percent disabling prior to April 25, 2016, and 40 percent disabling from April 25, 2016. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service from March 1977 to December 1986. This matter has come before the Board of Veterans' Appeals (Board) on appeal from December 2009 (grant of service connection for the lumbar spine disorder) and October 2010 (denials of various service connection issues) of the Department of Veterans Affairs (VA) Regional Office (RO). In the December 2009 rating decision, the RO granted service connection for lumbar spine degenerative disc disease effective November 14, 2008, and assigned a 20 percent disability rating effective that same date. In a May 2016 rating decision, the RO assigned an initial 40 percent disability rating for the service-connected lumbar spine disability effective April 25, 2016. As the increased disability rating is not the maximum rating available for this disability, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Records from the Social Security Administration reflect that the Veteran was granted Social Security disability benefits in part based on ankylosing spondylitis. Moreover, a February 2017 VA examiner stated that the Veteran had not worked since 1997 due to multiple service-connected disabilities. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the claim for TDIU is a component of the claim for higher ratings for the service-connected disability on appeal. Thus, the Board has taken jurisdiction of this issue. On October 19, 2016, the Veteran and his spouse testified at a Travel Board hearing held at the RO before the undersigned Veterans Law Judge. A complete copy of that transcript was not made, and only a partial copy of the transcript of that hearing has been associated with the record. In June 2017, the Board wrote to the Veteran and afforded another opportunity for a Board hearing. On June 10, 2017, the Veteran stated that he wanted a videoconference Board hearing. Later on June 20, 2017, he indicated that he no longer wanted a Board hearing. Therefore, the Veteran's request for another Board hearing is considered withdrawn and no further development is necessary. 38 C.F.R. § 20.702(e) (2017). In a January 2018 informal hearing presentation, the representative presented argument on the issue of entitlement to service connection for type II diabetes mellitus. As explained below, the partial copy of the October 19, 2016, Board hearing reflects that the Veteran has withdrawn his appeal of that issue. See October 19, 2016 hearing transcript, page 2. In January 2018, the representative waived initial consideration of evidence obtained by the RO since a September 2011 statement of the case and a May 2016 supplemental statement of the case. 38 C.F.R. § 20.1304(c) (2017). A November 2010 VA treatment record reflects that the Veteran reported that his lumbar spine disorder made him depressed. In an October 2016 claim, the Veteran filed a claim for entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). In an August 2017 rating decision, the RO reopened the claim of entitlement to service connection for PTSD and denied the claim on a de novo basis. The RO did not adjudicate a separate claim of entitlement to service connection for a psychiatric disorder other than PTSD. In September 2017, the Veteran filed a timely notice of disagreement with the denial of entitlement to service connection for PTSD. In a November 2017 informal hearing presentation, the representative presented argument on service connection for posttraumatic stress disorder (PTSD). According to the electronic Veterans Appeals Control and Locator System (VACOLS), the RO has acknowledged the receipt of the notice of disagreement and additional action is pending. Thus, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a notice of disagreement had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action on the NOD is pending at the RO, Manlincon is not applicable in this case and the issue of entitlement to service connection for PTSD is not before the Board. As for the issue of entitlement to service connection for a psychiatric disorder other than PTSD, in Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit held that VA's duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to the claimant. Therefore, the RO must consider that claim as secondary to the service-connected lumbar spine disorder. The issue of entitlement to service connection for a psychiatric disorder other than PTSD, to include as secondary to the service-connected lumbar spine disorder, has been raised by the record in an October 2016 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to service connection for a bilateral neurological disorder of the upper extremities, increased ratings for the service-connected lumbar spine disability, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. On October 19, 2016, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of the issue of entitlement to service connection for type II diabetes mellitus is requested. 2. The evidence is in equipoise as to whether the Veteran currently has bilateral radiculopathy of the lower extremities that is caused by the service-connected lumbar spine degenerative disc disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for type II diabetes mellitus by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Resolving reasonable doubt in the Veteran's favor, bilateral lumbar radiculopathy of the lower extremities was caused by the service-connected lumbar spine degenerative disc disease. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connection for type II diabetes mellitus The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeal of the issue of entitlement to service connection for type II diabetes mellitus and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the issue of entitlement to service connection for type II diabetes mellitus and it is dismissed. Entitlement to service connection for a bilateral neurological disorder of the lower extremities, to include as secondary to the service-connected lumbar spine disorder Governing law and regulations Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis Service connection is in effect for a lumbar spine disability, currently diagnosed as degenerative disc disease. Therefore, Wallin element (2), service-connected disability, is satisfied. As for Wallin elements (1) and (3), current disability and medical nexus evidence, there is conflicting medical evidence on the existence of lumbar radiculopathy. A December 2009 VA examination report reflects a diagnosis of lumbar radiculopathy associated with the lumbar spine degenerative disc disease. The examiner noted that the Veteran had radiating pain in both legs. VA treatment records reveal a diagnosis of lumbar radiculopathy and complaints of pain radiating into both legs. A September 2012 VA examination report shows that the examiner found that the Veteran did not clinically have radiculopathy or neuropathy but that an electromyography would nonetheless be obtained before rendering the medical opinion on the existence of a neurological disorder. It was noted that a February 2005 electromyography of the right lower extremity was normal. It does not appear that the Veteran underwent an electromyography of the lower extremities in conjunction with that examination. A February 2017 VA examination report reflects that the Veteran did not have any radicular pain or other signs or symptoms of radiculopathy. Given the conflicting medical evidence, the evidence is in equipoise as to whether the Veteran currently has bilateral radiculopathy of the lower extremities that is caused by the service-connected lumbar spine degenerative disc disease. Thus, Wallin elements (1) and (3), current disability and medical nexus, are met and service connection for bilateral lumbar radiculopathy, as secondary to lumbar spine degenerative disc disease, by means of causation is in order. 38 U.S.C. §§ 1131, 5107. ORDER The appeal of the issue of entitlement to service connection for type II diabetes mellitus is dismissed. Entitlement to service connection for bilateral radiculopathy of the lower extremities, as secondary to lumbar spine degenerative disc disease, is granted. REMAND The complete VA treatment records from December 2009 to October 2012, July 2013 to October 2014, and from August 2017 to the present are not of record. The RO should obtain these treatment records. A July 2013 VA examination report reflects that the Veteran underwent an electromyography of the upper extremities on April 19, 2012. The report of that electromyography is not of record, and the RO should obtain it. VA treatment records show that a report of an electromyography was scanned into CAPRI on April 29, 2013. The entry suggests that the Veteran underwent the electromyography on April 19, 2013. The RO should obtain a report of that electromyography. VA treatment records indicate that an electromyography was scanned into CAPRI on February 17, 2017. The entry suggests that the Veteran underwent the electromyography on February 8, 2017. The RO should obtain a report of that electromyography. Given the various neurological diagnoses in the upper extremities, another VA examination is necessary to determine the nature of these disorders, to include whether they are secondary to the service-connected cervical spine arthritis and in-service symptomatology. In light of the opinion of the February 2017 VA examiner on employability, the RO should refer the Veteran's claim of entitlement to TDIU to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of the assignment of an extraschedular rating if the Veteran does not meet the criteria for consideration under 38 C.F.R. § 4.16(a) after the initial assignment of disability ratings for the bilateral radiculopathy of the lower extremities. 38 C.F.R. §§ 4.16(b) (2017). Finally, the AOJ has not provided the Veteran a formal application for his claim of entitlement to TDIU. The AOJ has also not provided him notice of the information and evidence needed to substantiate and complete this claim, to include notice of what part of that evidence is to be provided by the Veteran, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C. §§ 5103, 5103A. Accordingly, the case is REMANDED for the following action: 1. The AOJ must provide the Veteran a formal application for his claim of entitlement to a total disability rating based on individual unemployability. The AOJ should provide the Veteran notice of the information and evidence needed to substantiate and complete this claim. 2. Obtain all treatment records from the Birmingham VA Medical Center and Huntsville Clinic from December 2009 to October 2012, July 2013 to October 2014, and from August 2017 to the present, and copies of electromyographies performed on or around April 19, 2012; April 19, 2013; and February 8, 2017. 3. After the development in 1 and 2 is completed, the AOJ should arrange for an examination of the Veteran to determine the nature and likely etiology of any current neurological disorder of the upper extremities. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. An examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability due to a neurological disorder of the upper extremities. Based on claims file review and examination of the Veteran, an examiner should provide opinions responding to the following: (a) Opine as to whether it is at least as likely as not (50% or better probability) that any current neurological disorder of either upper extremity is related to, or had its onset during, his active service. (b) Opine as to whether it is at least as likely as not (50% or better probability) that any current neurological disorder of either upper extremity was caused or aggravated by the service-connected cervical spine arthritis. If an examiner finds that any current neurological disorder of either upper extremity was aggravated by his service-connected cervical spine arthritis, then he/she should specify the baseline level of disability of the neurological disorder of either upper extremity, prior to aggravation and the permanent, measurable level of increased impairment due to the service-connected disability. Clear rationales for the opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 4. Thereafter, the AOJ should take any additional development necessary before adjudicating the claim for TDIU, to include referring the claim of entitlement to TDIU to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of the assignment of an extraschedular rating, if applicable. 5. Thereafter, the AOJ should readjudicate the issues on appeal. If any benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs