Citation Nr: 18141178 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-23 805 DATE: October 9, 2018 ORDER The issue of entitlement to an initial compensable evaluation for service-connected scar, residual of back surgery, is dismissed. Service connection for chronic lymphocytic leukemia (CLL) is granted. An initial schedular evaluation in excess of 20 percent for service-connected thoracic degenerative disease and degenerative disc disease of the lumbar spine, status post laminectomy and lumbar fusion with retained hardware, is denied. REMANDED An initial extraschedular evaluation in excess of 20 percent for service-connected thoracic degenerative disease and degenerative disc disease of the lumbar spine, status post laminectomy and lumbar fusion with retained hardware, is remanded. The claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. During his hearing, held in January 2018, prior to the promulgation of a decision in the appeal, the Veteran indicated that he desired to withdraw the issue of entitlement to an initial compensable evaluation for service-connected scar, residual of back surgery. 2. The Veteran was consistently exposed to chemical solvents during his military service, and the medical evidence makes it at least as likely as not (50 percent or greater) that such exposure caused his CLL. 3. The Veteran’s service-connected thoracic degenerative disease and degenerative disc disease of the lumbar spine, status post laminectomy and lumbar fusion with retained hardware, is shown to have been productive of complaints of pain; range of motion testing, even contemplating functional limitation due to pain, weakness, stiffness, fatigability, lack of endurance, and repetitive motion, etc., does not show forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; IVDS is not shown. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to an initial compensable evaluation for service-connected scar, residual of back surgery, by the appellant have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. 2. The criteria for service connection for CLL have been met. 38 U.S.C. §§ 501, 1154(a); 38 C.F.R. § 3.303. 3. The criteria for an initial schedular evaluation in excess of 20 percent for service-connected thoracic degenerative disease and degenerative disc disease of the lumbar spine, status post laminectomy and lumbar fusion with retained hardware, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5237, 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1960 to May 1964. 1. Dismissal – claim for an initial compensable evaluation 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. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. A review of the claims folder shows that the Veteran initiated an appeal on the issue of entitlement to an initial compensable evaluation for service-connected scar, residual of back surgery. The Veteran has since indicated that he desires to withdraw his appeal as to this issue. Specifically, during his hearing, held in January 2018, it was stated that the Veteran desired to withdraw his appeal as to this issue. His statement shows that he understood the consequences of withdrawing his claim. Acree v. O’Rourke, 891 F.3d 1009, fn. 2 (Fed. Cir. 2018). As there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal on the issue listed above. It is dismissed. 2. The claims for service connection for chronic lymphocytic leukemia, and entitlement to a TDIU, are remanded. The Veteran asserts that service connection for chronic lymphocytic leukemia (CLL) is warranted. It is argued that service connection is warranted based on the Veteran’s exposure to non-ionizing radiation, and hazardous chemicals, to include cleaning solutions used in the performance of his duties operating cryptography equipment. More specifically, with regard to exposure to hazardous chemicals encountered during the performance of his duties operating and cleaning up to ten cryptography machines, he argues that he regularly was exposed to cleaning solvents that included carbon tetrachloroethylene, and trichloroethylene (TCE). With regard to exposure to other hazardous chemicals, it is argued that the Veteran was exposed to hazardous chemicals during service on Shemya Island, Alaska, between May 1961 and May 1962, to include diesel fuel, “transmitter spills,” TCE, Benzyne, dioxin, and polychlorinated biphenyl (PCBs) in the air and ground water. The Veteran has also submitted a number of articles in support of his claim, to include a 1944 War Department technical manual which indicates that dry-cleaning solvent is to be used for cleaning of teletypewriters, although oil, fuel, diesel, or carbon tetrachloride may be used in some situations. Other submitted articles indicate that exposure to tetrachloroethylene may be carcinogenic. In addition, the dry cleaning industry has used several organic solvents, including carbon tetrachloride, and epidemiological studies of dry cleaners have shown excesses for several cancers, including leukemia. The Veteran’s personnel file, to include his discharge (DD Form 214) shows that his military specialty was “Comm Cen Specl,” (presumably, communications center specialist) and that following training, his duty titles included cryptography operator, and communications center specialist. Between May 1961 and May 1962, he served with the 6984th RSM (Radio Squadron Mobile), Shemya Island, Alaska (USAFSS). Performance evaluation reports show that the Veteran was a cryptographic operator, and a communications center specialist. Here, per the Veteran’s credible testimony, it is clear that he used cleaning solvents regularly as part of his daily routine of cleaning the cryptography equipment. Such a conclusion is certainly consistent with the circumstances, conditions, and hardships of his service, and are credible. 38 U.S.C. § 1154(a). The Veteran has submitted an opinion from T.A., M.D., dated in January 2018, in which Dr. T.A. noted that the Veteran had an inservice history of exposure to high-intensity microwave radio signals, solvent degreasers, and drinking highly-contaminated groundwater. He noted that the Veteran was diagnosed with CLL in 1994. Dr. T.A. concluded that the Veteran’s “multiple exposures to occupational toxins -in water he drank, in air around him, and solvents he used without protection for hands” are the causes of his CLL. The Veteran has submitted a medical opinion which links the claimed disability (CLL) to his in-service exposure to hazardous chemicals. He has also submitted articles which indicate that there may be an etiological relationship between exposure to hazardous chemicals during service and his CLL. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Thus the criteria for service connection have been met, and the Veteran’s claim is granted. 3. Initial schedular evaluation in excess of 20 percent for service-connected thoracic degenerative disease and degenerative disc disease of the lumbar spine, status post laminectomy and lumbar fusion with retained hardware. The Veteran asserts that he is entitled to an initial rating in excess of 20 percent for his service-connected degenerative disc disease of the lumbar spine, status post lumbar fusion, degenerative joint disease of the right knee, and left lower extremity radiculopathy. With regard to the history of the disability at issue, the Veteran’s service treatment records show that he received multiple treatments for back pain. Following separation from service, the Veteran underwent back surgeries on several occasions, in about 1968, 1969, and 1982, however, these records appear to be unobtainable. In August 1995, he underwent anterior lumbar discectomies, L3-4, L4-5, L5-S1, anterior lumbar arthrodesis, L3-4, L4-5, L5-S1 using autologous bone and Synthes internal fixation screws, posterior foraminotomies, right L3 and L5, left L4 and S1, harvest of autologous bone graft, right iliac crest, and posterolateral fusion L3-4, L4-5, L5-S1, with segmental Synthes screw and rod fixation L3 to the sacrum. The pre- and post-operative diagnoses were three-level disc disruptions with post-laminectomy syndrome. A decision of the Social Security Administration (SSA) dated in July 1997, shows that the Veteran was determined to be disabled as of May 1995, with a primary diagnosis of “disorder of back.” See 38 C.F.R. § 4.1. In January 2014, the RO granted service connection for thoracic degenerative disease and degenerative disc disease of the lumbar spine, status post laminectomy and lumbar fusion with retained hardware, evaluated as 20 percent disabling, with an effective date of January 11, 2013. The Veteran has appealed the rating assigned. Under 38 C.F.R. § 4.71a, DC 5237 and DC 5242 (see also DC 5003), lumbosacral strain and degenerative arthritis of the spine) are rated under the “General Rating Formula for Diseases and Injuries of the Spine.” The General Rating Formula provides that an evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially “absurd results.” Id. at 10-11 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The only ranges of motion for the Veteran's spine during the time period in issue are in a VA back disability benefits questionnaire (DBQ), dated in November 2013, which shows that he demonstrated forward flexion to 60 degrees, with pain at the extreme of motion (i.e., pain at 60 degrees). There was no finding of ankylosis. Of note, in reviewing Dr. Skaggs opinion he asserted that the Veteran’s forward flexion was untestable at this examination due to ankylosis, but a review of the examination report makes no such finding. The Board finds that an initial evaluation in excess of 20 percent is not warranted. There is no evidence to show forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that the Veteran has ankylosis of the entire thoracolumbar spine. DC 5237; General Rating Formula. In addition, the regulation provides that intervertebral disc syndrome may be rated under either the General Rating Formula or the “Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes”, whichever results in a higher rating. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that a 40 percent rating is warranted for intervertebral disc syndrome, with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. See also 38 C.F.R. § 4.71a, DC 5293. In this case, although the Veteran testified that he had been ordered to have bed rest during his hearing, the November 2013 VA back DBQ shows that the examiner indicated that the Veteran does not have IVDS. There is no competent evidence to show that the Veteran has IVDS. An initial increased evaluation is therefore not warranted based upon IVDS. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has also considered whether an increased rating could be assigned under 38 C.F.R. §§ 4.40 and 4.45, on the basis of functional loss due to the Veteran’s subjective complaints of pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); VAGCOPPREC 9- 98, 63 Fed. Reg. 56704 (1998). Overall, VA progress notes and private treatment reports show multiple treatments for complaints of back pain. VA progress notes include findings for the musculoskeletal system of a normal gait, a normal sensory examination, normal deep tendon reflexes, normal strength and muscle movement, and normal range of motion. See e.g., reports, dated in November 2013 and December 2014. A private treatment report, dated in April 2015, notes that upon examination of the musculoskeletal system, there was a full and normal range of motion. The November 2013 VA back DBQ shows that the Veteran was able to perform repetitive motion, with no loss of motion in any plane. The report notes that there was functional loss in the form of less movement than normal, and pain on movement. Gait was within normal limits. There were contributing factors of pain, weakness, fatigability, and incoordination, and additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The additional limitation reported by the Veteran was described as “can hardly move.” There was an abnormal gait due to guarding or muscle spasm. Muscle strength, reflexes, and a sensory examination, were normal. There was no muscle atrophy. There was no radiculopathy, and there were no other neurological abnormalities. An X-ray was noted to show minimal degenerative spondylosis of the mid/lower thoracic spine, with no other radiographic findings involving the thoracic spine. The examiner concluded that the degrees of additional loss of motion could not be provided without resort to mere speculation because such loss was not observed. The Veteran’s ability to work was impacted to the extent that he could not do physical labor. The diagnoses were degenerative disc disease of the lumbar spine, status post laminectomy, lumbar fusion with retained hardware, and thoracic degenerative disease. In summary, while there is some evidence of pain, and limitation of motion, the evidence does not otherwise show functional loss due to pain to warrant an initial evaluation in excess of 20 percent. Pain alone does not constitute a functional loss under VA regulations. Mitchell. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see also 38 C.F.R. 4.40. Here, even considering the Veteran’s pain, he is shown to have had at least 60 degrees of flexion, which is well in excess of the 30 degrees required for a rating in excess of 20 percent. When the range of motion findings, and the evidence showing functional loss are considered, to include the findings (or lack thereof) pertaining to neurologic deficits, muscle strength, and muscle atrophy, the Board finds that there is insufficient evidence of objective pain on motion, or any other functional loss, to warrant an initial evaluation in excess of 20 percent. The Board therefore finds that the criteria for an initial evaluation in excess of 20 percent are not shown to have been met, and the claim must be denied. REASONS FOR REMAND The Veteran’s attorney has argued that extraschedular consideration of the Veteran’s back disability is warranted. The Board agrees. While the results of the VA examination in 2013 did not support a higher schedular rating, the fact remains that Social Security Administration (SSA) found the Veteran to be unemployable on account of his back in the 1990s. As such, this claim should be referred to the director of compensation and pension. With regard to the issue of entitlement to a TDIU, this issue has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, this claim is intertwined with the issue being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, adjudication of this claim must be deferred. The matter is REMANDED for the following action: 1. Refer the claim for a rating in excess of 20 percent for a back disability to the Director of Compensation and Pension for an extraschedular determination. (Continued on the next page)   2. Adjudicate the claim for TDIU. MATTEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E.,Counsel