Citation Nr: 1805510 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 13-02 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right hand disability. 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to an initial increased rating for right wrist tendonitis, currently rated 10 percent disabling. 5. Entitlement to an initial increased rating for anxiety disorder, not otherwise specified, rated noncompensably disabling prior to November 26, 2012, and 10 percent disabling thereafter. 6. Entitlement to an initial increased rating for left shoulder tendonitis, currently rated 20 percent disabling. 7. Entitlement to an initial increased rating for lumbar strain, currently rated 10 percent disabling. 8. Entitlement to an initial increased rating for right knee femoropatellar syndrome, currently rated 10 percent disabling. 9. Entitlement to an initial increased rating for bilateral pes planus, currently rated 10 percent disabling. 10. Entitlement to service connection for breathing issues. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 2004 and March 2011. These matters come to the Board of Veterans' Appeals (Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted, in pertinent part, service connection for left shoulder tendonitis (10%), right wrist tendonitis (10%), lumbar strain (10%), right knee femoropatellar syndrome (0%), bilateral pes planus (0%), anxiety disorder, not otherwise specified (0%), all effective March 29, 2011; and, denied service connection for right hand pain, right ankle strain, bilateral hearing loss, and breathing issues. A notice of disagreement was filed in September 2011 and a statement of the case was issued in December 2012. In a December 2012 rating decision, a 10 percent disability rating was assigned to anxiety disorder, not otherwise specified, effective November 26, 2012. A substantive appeal was received in January 2013. In a July 2017 rating decision, a 10 percent rating was assigned to bilateral pes planus; a 10 percent rating was assigned to right knee femoropatellar syndrome; and, a 20 percent rating was assigned to left shoulder tendonitis, all effective March 29, 2011. The issue of entitlement to an increased rating for right shoulder strain has been raised by the record in a November 2017 claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). 11/08/2017 VA 21-526EZ, Fully Developed Claim. 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 appeal on the issues not being withdrawn is REMANDED to the AOJ. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. The Veteran in this case served on active duty from June 2004 and March 2011. 2. At the August 25, 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the issues of entitlement to service connection for shortness of breath, and entitlement to initial increased ratings for left shoulder tendonitis, lumbar strain, right knee femoropatellar syndrome, and bilateral pes planus is requested. CONCLUSION OF LAW The criteria for withdrawal of the appeal of entitlement to service connection for shortness of breath, and entitlement to initial increased ratings for left shoulder tendonitis, lumbar strain, right knee femoropatellar syndrome, and bilateral pes planus, by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 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 (2016). Withdrawal may be made by the Veteran or by his or authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeal of the issues of entitlement to service connection for shortness of breath, and entitlement to initial increased ratings for left shoulder tendonitis, lumbar strain, right knee femoropatellar syndrome, and bilateral pes planus, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues on appeal, and these issues are dismissed. ORDER Entitlement to an initial increased rating for left shoulder tendonitis is dismissed. Entitlement to an initial increased rating for lumbar strain is dismissed. Entitlement to an initial increased rating for right knee femoropatellar syndrome is dismissed. Entitlement to an initial increased rating for bilateral pes planus is denied. Entitlement to service connection for breathing issues is denied. REMAND Bilateral hearing loss The Veteran has claimed entitlement to service connection for bilateral hearing loss due to active service. He underwent a VA audiological examination in May 2011 and underwent a private audiological examination in September 2011. Such examinations did not show hearing loss per 38 C.F.R. § 3.385. At the Board hearing, the Veteran testified that he was experiencing hearing loss and that he has been prescribed hearing aids. 08/25/2017 Hearing Transcript at 19. The Veteran should be afforded a VA examination to assess whether he has a hearing loss disability. Right hand & right wrist The Veteran's right wrist tendonitis is rated 10 percent disabling per 38 C.F.R. § 4.71a, Diagnostic Code 5215, which contemplates limitation of motion of the wrist. The Veteran asserts that he has nerve damage and/or carpal tunnel syndrome of the right wrist which should be separately rated. 08/25/2017 Hearing Transcript at 10-11. The Veteran also asserts that he has a right hand disability that is due to service and/or due to his right wrist disability. The Veteran underwent a VA examination in May 2011 to assess the etiology and severity of his right wrist disability. The Veteran should be afforded a VA examination to assess the severity of his right wrist disability and to assess whether he has additional disability associated with his right wrist disability, and whether he has a right hand disability due to service or due to his right wrist disability. Right ankle The Veteran has claimed entitlement to service connection for a right ankle disability. He underwent a VA examination in May 2011 wherein right ankle strain manifested by pain on motion was diagnosed. The basis of the denial of service connection was that a chronic disability had not been diagnosed. The Board notes that pain alone, without a diagnosed or identifiable underlying malady, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001) (pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). A January 2012 record reflects that the Veteran needed physical therapy with regard to his right ankle. He presented with bilateral ankle and plantar pain and ankle instability which is limiting work and walking capacity. He has flat feet and ankle instability with left extremity weakness and decreased balance/proprioception which are big contributing factors to his symptoms. An April 2012 record reflects complaints related to the feet, which then travels into the ankle. 10/22/2012 Medical Treatment Record-Non-Government Facility at 1-9. It is not clear from such records whether a chronic right ankle disability has been diagnosed. The Board notes that service connection is in effect for bilateral pes planus (10%) and right knee patellofemoral syndrome (10%). He should be afforded a VA examination to assess whether he has a right ankle disability due to service or due to or aggravated by his service-connected bilateral foot or right knee disability. Anxiety The Veteran's anxiety is rated noncompensably disabling prior to November 26, 2012, and 10 percent disabling thereafter. He has attempted to establish entitlement to service connection for PTSD; however, this claim has been denied and is not in appellate status. The Veteran underwent VA examinations in May 2011 and November 2012 to assess the severity of his anxiety. In April 2015, the Veteran underwent a VA examination to assess whether he has PTSD, and while such examination addressed psychiatric symptomatology, the examiner diagnosed other specified trauma and stressor related disorder. It is not clear that such examination adequately assessed the severity of his service-connected anxiety. Moreover, at the Board hearing the Veteran testified that he experiences anxiety, anger, and panic attacks. 08/25/2017 Hearing Transcript at 4. He also experiences sleep difficulties and has isolated himself from family and friends. Id. at 5-6. Given the above, the Veteran should be afforded a VA examination to assess the severity of his anxiety. On Remand, obtain updated VA treatment records for the period from June 21, 2017. Accordingly, the case is REMANDED for the following actions: 1. Associate updated VA treatment records for the period from June 21, 2017. 2. Schedule the Veteran for a VA audiometric examination to ascertain whether any current bilateral hearing loss is related to service. It is imperative that the claims file be made available to and be reviewed by the examiner. The examiner should offer an opinion as to the following: a) Does the Veteran have a current diagnosis of a hearing loss disability of one or both ears as defined by VA regulation (38 C.F.R. § 3.385 )? b) Is it at least as likely as not (a 50 percent or higher degree of probability) that bilateral hearing loss had its onset during his period of service or is otherwise related to the Veteran's period of service, including conceded noise exposure? The examiner must provide reasons for all opinions offered. The examiner is advised that the Veteran is competent to report his symptoms and history; and that his reports must be considered in formulating the requested opinions. 3. AFTER all outstanding treatment records have been associated with the claims folder, schedule the Veteran for a VA orthopedic and neurological examination with a physician with appropriate expertise to assess the current severity of his service-connected right wrist disability and the nature and etiology of his claimed right hand disability. It is imperative that the examiner review the Virtual folder. All clinical and special test findings should be clearly reported, and pertinent orthopedic and neurological findings should be reported. a) The examiner should identify all disabilities associated with the right wrist and right hand. b) Is a right hand disability at least as likely as not (a 50 percent or higher degree of probability) due to active service. c) Is a right hand disability at least as likely as not (50 percent or greater probability) caused by service-connected right wrist tendonitis? d) Indicate whether it is at least as likely as not (50 percent or greater probability) that a right hand disability has been aggravated by service-connected right wrist tendonitis. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. e) Is a right upper extremity disability at least as likely as not (50 percent or greater probability) caused by service-connected right wrist tendonitis? f) Indicate whether it is at least as likely as not (50 percent or greater probability) that a right upper disability has been aggravated by service-connected right wrist tendonitis. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. ORTHOPEDIC Range of motion testing of the wrist should be accomplished and the examiner should report, in degrees, the point at which pain is demonstrated. To the extent possible the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. This should also be estimated for any reported flare-ups. The examiner should indicate the extent of any right wrist incoordination, weakened movement and excess fatigability on use should be described. To the extent possible the functional impairment due to incoordination, weakened movement, and excess fatigability on use should be assessed in terms of any muscle damage from atrophy or disuse resulting from the right wrist disability. The examiner should identify which, if any, muscle group is so affected. Any favorable or unfavorable ankylosis should be documented. NEUROLOGICAL The examiner should identify any neurological findings in the right upper extremity/wrist and fully describe the extent and severity of those symptoms. The examiner should attempt to distinguish the neurological symptoms associated with the right wrist disability and right shoulder disability. The examiner should identify the specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of the nerve (that is, whether it is mild, moderate, or severe in nature). The examiner should identify any muscular atrophy, to include of the hand, wrist or fingers, and comment on any loss of use of the hand. Specifically, the examiner should comment on the following: paralysis of the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angle to palm; flexion of wrist weakened; pain with trophic disturbances. The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 4. AFTER all outstanding treatment records have been associated with the claims folder, schedule the Veteran for a VA examination with an appropriate VA clinician to address the nature and etiology of his claimed right ankle disability. The virtual folder should be reviewed in connection with the examination to familiarize the examiner with the pertinent medical history. All appropriate testing and physical examination should be performed. The examiner should respond to the following: a) Please identify all disabilities associated with the right ankle. b) Is it at least as likely as not (i.e., a likelihood of 50 percent or more) that a disability affecting the right ankle is due to or began in active service? c) Is a right ankle disability at least as likely as not (50 percent or greater probability) caused by service-connected bilateral pes planus and/or right knee femoropatellar syndrome? d) Indicate whether it is at least as likely as not (50 percent or greater probability) that a right ankle disability has been aggravated by service-connected bilateral pes planus and/or right knee femoropatellar syndrome. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. The examiner is advised that the Veteran is competent to report his symptoms and history, and his reports must be considered in formulating the requested opinions. The examiner must provide a comprehensive rationale for all opinions offered. If any requested opinions cannot be provided without resort to speculation, the examiner should explain why this is so; and, whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. 5. Schedule the Veteran for a VA psychiatric examination with a psychologist or psychiatrist to determine the current severity of his service-connected anxiety, not otherwise specified. The examiner should review the Virtual folder and note such review in the examination report or addendum to the report. The examiner should be asked to comment on the severity of the Veteran's disability, and specify the degree of occupational or social impairment due to his service-connected anxiety. Examination findings should be reported to allow for evaluation of his disability under 38 C.F.R. § 4.130, Diagnostic Code 9413, and the examiner should specifically comment on any difficulty establishing and maintaining effective work and social relationships due to his anxiety. The examiner should also describe the functional effects of the Veteran's anxiety, to include how such effects would impact his functioning in an employment capacity. 6. After completion of the above, review relevant evidence of record and readjudicate the service connection and initial increased rating issues. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs