Citation Nr: 18141348 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 12-07 185 DATE: October 10, 2018 ORDER 1. The issue of entitlement to a disability rating higher than 10 percent for residuals, metacarpal fracture, left hand, to include well-circumscribed lytic lesion (left hand fracture residuals) is dismissed. 2. The issue of entitlement to special monthly compensation (SMC) is dismissed. 3. The issue of entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is dismissed. 4. Service connection for a left shoulder disorder, diagnosed as bicipital tendinitis, subacromial bursitis, and acromioclavicular (AC) arthrosis, is granted. REMANDED 5. Service connection for a right shoulder disorder is remanded. 6. Service connection for a right hip disorder is remanded. 7. Service connection for a left hip disorder is remanded. 8. Service connection for a back disorder is remanded. 9. Service connection for radiculopathy is remanded. 10. Service connection for a neurological disorder of the right upper extremity is remanded. 11. Service connection for a neurological disorder of the left upper extremity is remanded. 12. Service connection for a neurological disorder of the right lower extremity is remanded. 13. Service connection for a neurological disorder of the left lower extremity is remanded. FINDINGS OF FACT 1. On the record at his hearing on November 15, 2017, the Veteran requested a withdrawal of his claim for entitlement to a higher disability rating for left hand fracture residuals. 2. On the record at his hearing on November 15, 2017, the Veteran requested a withdrawal of his claim for entitlement to SMC. 3. On the record at his hearing on November 15, 2017, the Veteran requested a withdrawal of his claim for entitlement to TDIU. 4. The Veteran sustained a left shoulder injury during his military service; chronic continuous post-service symptoms relating to his left shoulder are established, and there is an approximate balance of positive and negative evidence as to whether his current left shoulder disability, diagnosed as bicipital tendinitis, subacromial bursitis, and AC arthrosis, is related to his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim of entitlement to service connection for left hand fracture residuals are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of the appeal of the claim of entitlement to SMC are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 3. The criteria for withdrawal of the appeal of the claim of entitlement to service connection for TDIU are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 4. The criteria for service connection for left shoulder disorder, diagnosed as bicipital tendinitis, subacromial bursitis, and AC arthrosis are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Army from March 1982 to August 1982 and from January 2003 to April 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In November 2017, he testified at a videoconference hearing held before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. Dismissal of Withdrawn Claims left hand fracture residuals SMC TDIU A veteran may withdraw his appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 20.101, 20.202. On November 15, 2017, on the record at his Board hearing, the Veteran requested a withdrawal of the claims for an increased disability rating for left hand fracture residuals, entitlement to SMC, and entitlement to TDIU. (A written transcript of that hearing has been associated with the claims file.) His withdrawal was undertaken with knowledge of the consequences of the request. In view of the Veteran’s expressed desire, further action with regard to these claims is not appropriate. Accordingly, the Board does not have jurisdiction to review them and they are dismissed. Service Connection The Veteran is seeking service connection for a left shoulder disorder, which he asserts is related to military service or began during that time. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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)). Service connection is granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, such as arthritis (arthrosis) are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA. 38 C.F.R. §§ 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. left shoulder disorder At his November 2017 hearing, the Veteran testified that he was treated for a left shoulder injury during service and that he has had continuous left shoulder problems since then. Here, the evidence shows current diagnoses of bicipital tendinitis, subacromial bursitis, and AC arthrosis osteoarthritis of the left shoulder. Having established a current disability and in-service incurrence, the remaining question is whether the Veteran’s current left shoulder disability is a result of his in-service injury. Service treatment records confirm the Veteran was treated for left shoulder strain after injuring his shoulder carrying boxes. See service treatment record and DD Form 689, Individual Sick Slip, both dated June 6, 2003. At his separation physical in March 2004, he reported shoulder pain on his Report of Medical Assessment. Post-service VA outpatient treatment records show that in September 2005, the Veteran continued to complain of chronic left shoulder pain with limited abduction which he attributed to his in-service injury. A diagnosis was not given at that time. The next relevant evidence is a September 2009 VA examination report. After reviewing the claims file, including service treatment records, the Veteran’s history of in-service left shoulder injury and noting his post-service occupation as a warehouse employee, the examiner concluded that the Veteran’s diagnosed left shoulder bicipital tendinitis, subacromial bursitis and AC joint arthrosis were not related to service. He essentially explained that despite the in-service left shoulder injury, there was no evidence of treatment due to a left shoulder condition for several years after service. He concluded that the left shoulder condition in service was acute and transitory and resolved with military treatment. Unfortunately, the examiner failed to discuss the September 2005 VA outpatient treatment record which noted the Veteran’s left shoulder complaints a little over a year after service discharge. As a result, the opinion is based on the incorrect impression that the Veteran did not seek treatment for continued left shoulder complaints until years after service. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (noting that medical opinions based on an incomplete or inaccurate factual premise are not probative). In this case, the opinion does not assist the Board in making a determination. Thereafter, the Veteran submitted a medical opinion from his private treating physician who attributed his current left shoulder problems to his in-service injury. See medical opinion from N.A. Ortiz Valentin, M.D. dated April 15, 2010. After a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current left shoulder disorder is related to his military service. In this regard, the Board finds that the Veteran injured his left shoulder and continued to complain of it at his discharge from service in 2004. He was seen for continued left shoulder problems in 2005 within a year of service discharge. Furthermore, the negative VA medical opinion, and the positive private medical opinion, at the very least place the evidence in equipoise as to whether the Veteran’s left shoulder disorder is related to service. Therefore, reasonable doubt is resolved in the Veteran’s favor and service connection for left shoulder bicipital tendinitis, subacromial bursitis and AC joint arthrosis is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND service connection for a right shoulder disorder service connection for a back disorder service connection for radiculopathy service connection for right and left hip disorders service connection for a neurological disorder of the right and left upper extremities service connection for a neurological disorder of the right and left lower extremities The Veteran is seeking service connection for a right shoulder disorder, a back disorder, radiculopathy and a neurological disorder involving all four extremities, which he asserts are related to military service or began during that time. During the November 2017 Board hearing, the Veteran testified that he injured his right shoulder and back during service when he slipped and fell while running for the barracks. He testified that he was referred to the hospital and received a sick slip, but a description of the incident and injury was not provided. He also testified that he first noticed hip pain sometime afterwards, but did not report it at sick call. He also testified that he was first treated for neuropathy about a year after service. Service treatment records show the Veteran did not indicate any specific right shoulder, back, or hip complaints and there is no evidence to support an in-service right shoulder, back, or hip injury. These records are also negative for complaints of symptoms suggestive of radiculopathy or neuropathy. The Board notes that an April 21, 2003 sick slip (DD 689) shows the Veteran reported to sick call, but no reason or diagnosis is provided. However other service treatment records show he was treated for diarrhea and nausea due to acute gastroenteritis on that same date with no mention of an injury. These records also include an additional sick slip dated June 6, 2003, related to the Veteran’s left shoulder injury. A second sick slip dated a few days later shows no reason or diagnosis is provided, but do show that he was confined to quarters for 24 hours with no PT for 72 hours. That said, the Veteran is currently diagnosed with a right shoulder disorder, back disorder, and bilateral upper extremity disorders. In addition, VA and private treatment records, dated not long after service, reflect diagnoses of mildly spondylotic changes at the lumbar spine, bilateral ulnar nerve compression entrapment at the elbows, and bicipital tendinitis, subacromial bursitis, and calcific stenosis of the right shoulder. See VA clinical record dated September 26, 2005; clinical records from Hospital Ryder Memorial, dated November 14, 2007; VA electrodiagnostic findings from May 2009; and a September 2009 VA examination report. In an April 2010 medical opinion, a private physician opined that the Veteran injured his shoulders, back, and hips as a result of continuous lifting of heavy boxes and equipment, including an incident where he tried to stop a box from falling and hurt his shoulders. She went on to state that continuous lifting heavy weights can put a lot of strain at the back causing continuous spasm and inflammatory changes which in the long run can cause degenerative changes. These problems simultaneously cause bad posture, loss of correct alignment, and loss of curvature of the cervical, thoracic, and lumbar lordosis putting more stress on one side of the vertebras than the other and by consequence could result in disc bulging, herniation radiculopathy, and neuropathy. However, the physician did not explain what evidence in the Veteran’s treatment records supported this conclusion, and did not reference any clinical data or other evidence as rationale for the opinion. See Bloom v. West, 12 Vet. App. 1985 (1999) (holding that the value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion.”). However, the Veteran has not been afforded VA examinations with medical opinion to determine whether any of these claimed disabilities are in any way related to service. Despite a lack of rationale, the private opinion suggests that the Veteran’s claimed conditions are related to service and the Board finds that the evidence of record meets the low threshold for obtaining VA examinations in this case, and such should be provided to determine the nature and etiology of his claimed right shoulder disorder, back disorder, radiculopathy, and neurological disorder of all four extremities. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that the claims file includes some private medical records in Spanish that require translation. As the case is being remanded for additional development, translation of these documents should also be completed at the agency of original jurisdiction (AOJ) prior to adjudication. This remand will also allow for original consideration of any other evidence added to the file since the supplemental statement of the case in November 2016. The matters are REMANDED for the following action: 1. Obtain all clinical records, both VA and non-VA, pertaining to treatment of the Veteran that are not already in the claims file. 2. Translate any Spanish entries in the Veteran’s claims file, to include any new treatment records, into English. 3. After any additional records are associated with the claims file, schedule an appropriate VA examination to determine the etiology of his claimed right shoulder, low back, radiculopathy, and neurological disorders. The electronic claims file should be made available for review in connection with these examinations. Any appropriate evaluations, studies, and testing deemed necessary should be conducted, and the results included in the examination report. The examiner must use the appropriate Disability Benefits Questionnaires (DBQ) Identify all current right shoulder disorders, back disorders, radiculopathy, and neurological disorders of the upper and lower extremities, and address any diagnoses already of record. For each diagnosed disorder, the examiner should provide an opinion regarding whether it at least as likely as not, (i.e., a 50 percent probability or greater) had its clinical onset during service. In providing this opinion, the examiner should carefully consider the objective medical findings in the service treatment records and discuss the likelihood of the Veteran’s documented in-service injuries as the possible onset of, or precursor to, any currently diagnosed disorder or, in the alternative is consistent with his military duties which included heavy lifting. If any diagnosed right shoulder disorder, back disorder, radiculopathy, or neurological disorders of the upper and lower extremities cannot be regarded as having had its onset during active service, the examiner should discuss the likelihood that any current disorders are due causes unrelated to his military service, such as his to post-service employment in a warehouse. (See employment history section of September 2009 VA examination report). If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant