Citation Nr: 18142898 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-26 690 DATE: October 17, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is dismissed. Entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed. New and material evidence having been received, the claim of entitlement to service connection for a back injury, status post laminectomy, is reopened. New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is reopened. New and material evidence having been received, the claim of entitlement to service connection for a right heel injury is reopened. Degenerative joint and degenerative disc disease, thoracolumbar spine, with right femoral and sciatic nerve radiculopathy status post lumbar fusion and residual scar (previously considered back injury, status post laminectomy) is granted. Entitlement to service connection degenerative disc and degenerative joint disease, cervical spine, with left radiculopathy status post compression fracture C5 and cervical fusion with residual scar is granted. Entitlement to service connection for right knee medial and lateral meniscal tears, anterior cruciate ligament tear, and tricompartmental is granted. Entitlement to service connection for a right heel injury is granted. Entitlement to service connection for a headache disability is granted. REMANDED Entitlement to service connection for degenerative joint disease, left shoulder (claimed as left shoulder/arm pain) is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a final decision by the Board, the Veteran stated on the record that he wished to withdraw his claim for an initial compensable rating for bilateral hearing loss. 2. Prior to the promulgation of a final decision by the Board, the Veteran stated on the record that he wished to withdraw his claim for an initial rating in excess of 10 percent for tinnitus. 3. An unappealed December 2003 rating decision denied entitlement to service connection for a back injury, status post laminectomy, a right knee injury, status post repair, and a right heel injury. 4. Evidence added to the record since the December 2003 rating decision raises a reasonable possibility of substantiating the previously denied claims. 5. Resolving reasonable doubt in the Veteran’s favor, his degenerative joint and degenerative disc disease, thoracolumbar spine, with right femoral and sciatic nerve radiculopathy status post lumbar fusion and residual scar is at least as likely as not related to service. 6. Resolving reasonable doubt in the Veteran’s favor, his degenerative disc and degenerative joint disease, cervical spine, with left radiculopathy status post compression fracture C5 and cervical fusion with residual scar is at least as likely as not related to service. 7. Resolving reasonable doubt in the Veteran’s favor, his right knee medial and lateral meniscal tears, anterior cruciate ligament tear, and tricompartmental osteoarthritis is at least as likely as not related to service. 8. Resolving reasonable doubt in the Veteran’s favor, his right heel injury is at least as likely as not related to service. 9. Resolving reasonable doubt in the Veteran’s favor, his headache disability is at least as likely as not caused by his now service-connected cervical spine disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal, as to the claim of entitlement to an initial compensable rating for bilateral hearing loss have been met. 38 U.S.C. § 7105 (b)(2),(d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of the appeal, as to the issue of entitlement to an initial rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105 (b)(2),(d)(5) (2012); 38 C.F.R. § 20.204 (2018). 3. The December 2003 RO decision denying entitlement to service connection for a back injury, status post laminectomy, a right knee injury, status post repair, and a right heel injury is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 4. New and material evidence has been received to reopen the claims for service connection for a back injury, status post laminectomy, a right knee injury, status post repair, and a right heel injury. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The criteria for entitlement to service connection for degenerative joint and degenerative disc disease, thoracolumbar spine, with right femoral and sciatic nerve radiculopathy status post lumbar fusion and residual scar have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 6. The criteria for entitlement to degenerative disc and degenerative joint disease, cervical spine, with left radiculopathy status post compression fracture C5 and cervical fusion with residual scar have been met. 38 U.S.C. §§ 1110, 1131, 5107(b)(2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 7. The criteria for entitlement to service connection for criteria for right knee medial and lateral meniscal tears, anterior cruciate ligament tear, and tricompartmental have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 8. The criteria for entitlement to service connection for a right heel injury have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 9. The criteria for entitlement to service connection for a headache disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1973 to March 1974 and from July 1978 to August 1978. The Veteran testified before a decision review officer (DRO) in November 2015 and before the undersigned Veterans Law Judge in April 2017. Transcripts of the hearings are of record. The Board has recharacterized the claim for service connection for migraine headaches as a claim for a headache disability. The recharacterized issue better reflects the assertions of the Veteran and the clinical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see generally Dr. W. W., M.D. February 2018 Report. Finally, as discussed below all pending claims are granted herein; thus, any error related to the VCAA is moot. Withdrawn Claims 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 appellant or by his or her authorized representative, and except where withdrawn on record at a hearing, must be in writing. 38 C.F.R. § 20.204. During the April 2017 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the following issues: entitlement to an initial compensable rating for bilateral hearing loss and entitlement to an initial rating in excess of 10 percent for tinnitus. At the hearing, the undersigned clearly identified all pending issues and then distinguished that the Veteran had indicated a desire to specifically withdrawal only the increase ratings claims. Immediately thereafter the Veteran’s attorney asked the Veteran if it was “okay with [him]” to withdraw those issues. The Veteran responded in the affirmative. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Indeed, during the hearing, the Veteran demonstrated that he understood the consequences of withdrawing his appeals as he did not discuss the withdrawn issues, including at the conclusion of the hearing when the undersigned asked him for any additional statements. The Veteran’s oral statement during his hearing, memorialized in writing in the transcript, satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). There remain no allegations of errors of fact or law for appellate consideration, as to those issues. Accordingly, as to the issues of entitlement to an initial compensable rating for bilateral hearing loss and entitlement to an initial rating in excess of 10 percent for tinnitus, the Board does not have jurisdiction to review the appeal and these issues are dismissed. New and Material Evidence Claims for service connection for a back injury, status post laminectomy and a right heel injury were originally denied in a December 2003 Rating Decision. Within the decision, the RO also reopened and made a merits determination to deny the claim for entitlement to service connection for a right knee injury, status post repair. The knee and back claims were in part denied for a lack of a nexus to service. The heel claim was denied due to lack of current disability. The Veteran received notification of these denials by letter in December 2003. He did not appeal these denials nor was any new and material evidence received within one year of these denials. As such, they became final. 38 U.S.C. § 7105. Since the December 2003 RO decision, the claims file contains VA treatment medical records and private medical opinions documenting diagnoses related to service. See Dr. W.G., M.D. January 2014 VAMC Record/Opinion, March 2013 Dr.G. B., M.D. Opinion, and a February 2018 Dr. W. Opinion. These diagnoses and opinions are sufficient to satisfy the low threshold requirements for new and material evidence; and, the claims are reopened. 38 C.F.R. § 3.156 (a) (2018); Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Service connection can be established by evidence that shows "(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." 38 C.F.R. § 3.310 (a) (2018); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2017). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998) 1. Degenerative joint and degenerative disc disease, thoracolumbar spine, with right femoral and sciatic nerve radiculopathy status post lumbar fusion and residual scar 2. Degenerative disc and degenerative joint disease, cervical spine, with left radiculopathy status post compression fracture C5 and cervical fusion with residual scar The Veteran seeks service connection for lumbar and cervical spine disabilities. He asserts his disabilities stem from falling/being pushed from a parachuting practice tower. The first element of Shedden is met as he has current diagnoses of degenerative joint and degenerative disc disease of the thoracolumbar spine, with associated right femoral and sciatic nerve radiculopathy and a residual scar; cervical spine degenerative disc and degenerative joint disease, with associated radiculopathy of the left, upper, and middle radicular groups and a cervical fusion with a residual scar. See Dr. W. February 2018 Examination Report. As to the second element, service treatment records (STR) document the Veteran’s reports of back pain, aches, and being diagnosed with a muscle spasm in December 1973. He is also competent and credible to report suffering a back injury after falling from a parachute training tower. Finally, as to nexus, three VA and private physicians have opined that the Veteran’s lumbar cervical spine disabilities were incurred in service as a direct result of his reported fall. See Dr. G. January 2014 VA Treatment Medical Record Opinion, March 2013 Dr. B.’s Opinion, and a February 2018 Dr. W. Opinion. When combined these opinions reflect careful consideration of the claims file which included lay, diagnostic, examination, and general clinical evidence. Furthermore, they were prepared by the Veteran’s treating physicians, who are individuals with intimate knowledge of his physical condition and history. The Board finds the opinions highly probative. There is a negative VA opinion of record from July 2013 but that opinion is no more or less probative than the positive opinions of record. As the evidence is at least in equipoise, service connection for the claimed disabilities is granted. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Right knee medial and lateral meniscal tears, anterior cruciate ligament tear, and tricompartmental The Veteran seeks service connection for a right knee injury as due to his reported in-service tower fall. The first element of Shedden is met as he has current diagnoses of anterior cruciate disruption of the right knee with meniscal tear and degenerative arthritis of both the medial and lateral compartments. See Dr. W. February 2018 Examination Report. As to the second element, the Board acknowledges the record contains documentation of injuries to the Veteran’s knee beginning only after he was discharged from his first period of service. Nevertheless, the Board will concede the Veteran’s assertions of suffering an initial knee injury during his first period of service in 1973. He has competently and credibly reported a 1973 fall and suffering continued knee symptomatology from that date forward. Medical records contemporaneous to separation support his assertions regarding knee impairment. Specifically, treatment records from November 1976 document his reports of experiencing knee symptomatology in July 1974, two months after separation. These records also indicate his knee symptomatology was severe in 1974, as his instability resulted in a fall down a flight of stairs. Given the record, the second element of Shedden is met. Finally, as to nexus, of record is a February 2018 positive opinion from Dr. W. Dr. W. opined that a fall from 30-40 feet without using proper technique would cause severe injury. To that end, Dr. W. found it likely that the Veteran suffered an undiagnosed anterior cruciate tear with hyperextension because of his fall. Dr. W. predicated this opinion on the nature of the fall and the lay evidence of continued symptomatology thereafter. The opinion was also predicated on careful consideration of the claims file which included lay, diagnostic, examination, and general clinical evidence. The Board finds this opinion highly probative and the record currently lacks any opinion to the contrary. Therefore, the Veteran’s claim for service connection for right knee medial and lateral meniscal tears, anterior cruciate ligament tear, and tricompartmental is granted. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Right heel injury The Veteran seeks service connection for a right heel injury as due in part to his fall from the tower. The first element of Shedden is met as he has a current diagnosis of Achilles tendonitis of the right foot along with plantar fascitis. See Dr. W. February 2018 Examination Report; see also McClain v. Nicholson, 21 Vet. App. 319 (2007). With regard to service, the record confirms treatment for a heel and ankle injury in January 1973. In addition, the Veteran is found competent and credible to report injury to his heel. The second element of Shedden is met. Finally, as to nexus, of record is a February 2018 positive opinion from Dr. W. Dr. W. essentially opined that the progression of the Veteran’s initial injury into his current disabilities made sense given the nature of his fall. Specifically, he developed Achilles tendonitis that progressed into plantar fasciitis, and spurs, and finally resulted in arthritis of the right foot. Dr. W. predicated this opinion on careful consideration of the claims file which included lay, diagnostic, examination, and general clinical evidence. The Board finds this opinion highly probative and the record currently lacks any opinion to the contrary. Therefore, the Veteran’s claim for service connection for a right heel is granted. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 5. Headache Disability The Veteran seeks service connection for a headache disability, as secondary to his now service-connected cervical spine disabilities. The medical evidence reveals that the Veteran has diagnosed cervicogenic headaches and migraine headaches, including migraine variants. See July 2013 VA Examination and Dr. W. February 2018 Examination Report. Further, as discussed above, the Veteran is now service-connected for multiple spinal disabilities. Therefore, the first and second elements of Wallin are met. 11 Vet. App. 509, 512 (1998) As to nexus, in February 2018, Dr. W. physically examined the Veteran. Within the examination report, Dr. W. noted that he suffered from headaches that were primarily occipital and associated with cervical spine discomfort. Specifically, Dr. W. noted that the Veteran reported his headaches became worse with increasing cervical spine pain. Following examination, Dr. W. opined that the Veteran’s headaches were cervicogenic in nature and were a direct result of the cervical spine compression he suffered in service. In supporting the similarity of the Veteran’s condition to cervicogenic headaches, Dr. W. submitted clinical research regarding the manifestation and characteristics of cervicogenic headaches caused by trauma to the cervical spine. Dr. W.’s opinion was also predicated on careful consideration of the claims file which included lay, diagnostic, examination, and general clinical evidence. The Board finds this opinion highly probative. Comparatively, also in evidence is a July 2017 VA examination opinion. The Board finds this opinion less probative as it does not address the buddy statements documenting headaches in and since service. See 2012 A. S., G. G., B. V., and B. C. Statements. Additionally, as the VA opinion was prepared prior to Dr. W.’s positive opinion it does not address the assertions made therein or the medical literature provided. Rather than remanding, the Board finds the positive evidence sufficient to form the basis of a grant. The Veteran’s claim for service connection for a headache disability is granted on a secondary basis. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND Degenerative joint disease, left shoulder (claimed as left shoulder/arm pain) is remanded. There is no adequate opinion addressing the etiology of the Veteran’s claimed shoulder disability. Currently, of record is a July 2013 VA examination opinion. The opinion made a conclusory determination that “there is no anatomical relationship between [the] shoulder and back injury.” An addendum is required. Additionally, while on remand an opinion addressing the etiology of the Veteran’s left shoulder disabilities in relation to his now service-connected cervical spine disabilities must be obtained. Importantly, the 2017 examiner indicated that in certain instances there can be an association between neck injuries and shoulder symptomatology. However, because STRs were negative for an in-service neck injury, the examiner did not opinion as to whether such a relationship existed in the instant case. As the Board has conceded an in-service neck injury a new opinion is necessary. The matter is REMANDED for the following action: The RO should obtain an opinion from the July 2017 examiner, or another appropriate medical professional as to the whether it is as likely as not that any current shoulder disability: (a) Had its onset in service or is otherwise etiologically related to his conceded in-service neck injury. (b) Was caused by his now service-connected cervical and/or lumbar spine disabilities. (c) Was aggravated (worsened) by his now service-connected cervical and/or lumbar spine disabilities NOTE: The Board has now conceded an in-service neck injury due to the Veteran’s reported in-service fall. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel