Citation Nr: 18143688 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-07 200 DATE: October 23, 2018 ORDER Entitlement to an increased rating for scars of the left shoulder, right knee, and umbilical area, currently evaluated as 30 percent disabling, is dismissed. Entitlement to an increased rating for a gastric ulcer, hiatal hernia, and healed Mallory-Weiss tear with gastroesophageal reflux disease (GERD), currently evaluated as 20 percent disabling, is dismissed. Entitlement to an increased rating for postoperative residuals of the right knee with retropatellar pain syndrome and degenerative changes, currently evaluated as 10 percent disabling, is dismissed. Entitlement to an increased rating for degenerative joint disease of the left elbow, currently evaluated as 10 percent disabling, is dismissed. Entitlement to a compensable evaluation for a left kidney cyst is dismissed. Entitlement to a compensable evaluation for left epididymis is dismissed. Entitlement to service connection for a low back disorder is dismissed. Entitlement to service connection for a coccyx sprain is dismissed. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is dismissed. REMANDED Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected right knee disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and major depressive disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to an increased rating for cervical spine degenerative disc disease, currently evaluated as 30 percent disabling, is remanded. Entitlement to an increased rating for degenerative changes of the thoracic spine with thoracolumbar strain, currently evaluated as 20 percent disabling, is remanded. Entitlement to an increased rating for bursitis of the left shoulder, currently evaluated as 10 percent disabling, is remanded. Entitlement to an increased rating for migraine headaches, currently evaluated as 30 percent disabling, is remanded. FINDING OF FACT In April 2018, prior to the promulgation of a decision in the appeal, the Veteran and his representative indicated that they wanted to withdraw the appeal as to the issues of entitlement to an increased rating for scars of the left shoulder, right knee, and umbilical area; an increased rating for a gastric ulcer, hiatal hernia, and healed Mallory-Weiss tear with GERD; an increased rating for postoperative residuals of the right knee with retropatellar pain syndrome and degenerative changes; an increased rating for degenerative joint disease of the left elbow; a compensable evaluation for a left kidney cyst; a compensable evaluation for left epididymis; service connection for a low back disorder; service connection for a coccyx sprain; and TDIU. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran and his representative have been met for the issues of entitlement to an increased rating for scars of the left shoulder, right knee, and umbilical area; an increased rating for a gastric ulcer, hiatal hernia, and healed Mallory-Weiss tear with GERD; an increased rating for postoperative residuals of the right knee with retropatellar pain syndrome and degenerative changes; an increased rating for degenerative joint disease of the left elbow; a compensable evaluation for a left kidney cyst; a compensable evaluation for left epididymis; service connection for a low back disorder; service connection for a coccyx sprain; and TDIU. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1992 to January 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2012 and November 2012, the Veteran and his wife testified at hearings before a Decision Review Officer (DRO). Transcripts of these proceedings have been associated with the record. In a January 2015 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for scars of the left shoulder, right knee, and umbilical area to 30 percent, effective from April 14, 2014. The AOJ also discontinued a separate 10 percent rating for the umbilical area scar, effective April 14, 2014, as the scar was more appropriately evaluated with the other scars as of that date. In addition, in the January 2015 rating decision, the AOJ increased the evaluation for degenerative changes of the thoracic spine to 20 percent, effective from August 13, 2013. Applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issues of increased ratings for scars of the left shoulder, right knee, and umbilical area, and thoracic spine remained on appeal. In April 2018, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The undersigned Veterans Law Judge held the record open for 90 days following the hearing to allow for the submission of additional evidence; however, a review of the claims file shows that no such evidence was received. Withdrawal 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. 38 C.F.R. § 20.204. Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). In the present case, during the April 2018 hearing, the Veteran and his representative indicated that they wanted to withdraw the appeal for the issues of entitlement to an increased rating for scars of the left shoulder, right knee, and umbilical area; an increased rating for a gastric ulcer, hiatal hernia, and healed Mallory-Weiss tear with GERD; an increased rating for postoperative residuals of the right knee with retropatellar pain syndrome and degenerative changes; an increased rating for degenerative joint disease of the left elbow; a compensable evaluation for a left kidney cyst; a compensable evaluation for left epididymis; service connection for a low back disorder; service connection for a coccyx sprain; and TDIU. Thus, with regard to those issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues, and the appeal is dismissed. REASONS FOR REMAND During the April 2018 hearing, the Veteran asserted that he currently has a left knee disorder secondary to his service-connected right knee disability. Specifically, he reported that he favored his left knee after he had surgery on his right knee. See hearing transcript, p. 4. In addition, the Veteran has claimed that he currently has a psychiatric disorder secondary to pain from his service-connected disabilities. However, the Board notes that the Veteran has not been provided proper notice in connection with his claims. Specifically, the AOJ did not send the Veteran a letter advising him of the evidence needed to substantiate a claim for service connection on a secondary basis. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (failure by Board to enforce compliance with VA notice requirements of 38 U.S.C. § 5103 (a) is remandable error). Thus, the Veteran should be provided proper notice on remand. Moreover, an August 2011 VA examiner noted that a left knee x-ray showed degenerative arthritic changes, and she diagnosed the Veteran with status-post bilateral knee arthroscopic surgery. However, the examiner did not provide an opinion regarding the etiology of the disorder. Therefore, a remand is necessary to obtain a VA medical opinion. The Board also notes that attempts have not been made to verify any of the stressors that the Veteran has reported during the course of the appeal. Specifically, in an April 2011 statement and during a June 2012 DRO hearing, the Veteran stated that fellow soldiers died while he was stationed in Germany. During the June 2012 DRO hearing, the Veteran’s wife also reported that he was involved in a motor vehicle accident in 1992. In addition, during the April 2018 Board hearing, the Veteran testified that his noncommissioned officer (NCO) died from a massive heart attack in front of him. See hearing transcript, pp. 8-9. On remand, the Board finds that the AOJ should attempt to verify these stressors. In addition, in light of a recent decision issued by the United States Court of Appeals for Veterans Claims (Court), Correia v. McDonald, 28 Vet. App. 158 (2016), a remand is required for VA examinations to ascertain the current nature and severity of the Veteran’s service-connected cervical spine, thoracic spine, and left shoulder disabilities. In Correia, the Court concluded that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. Because the August 2013 and April 2014 VA examinations do not satisfy the requirements under Correia, additional VA examinations are required in this case. Regarding the claim for an increased rating for migraine headaches, the Veteran was most recently provided a VA examination in April 2014. The Veteran has alleged that this disability has increased in severity since that time. See, e.g., April 2018 hearing transcript, pp. 11-12. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The matters are REMANDED for the following action: 1. The AOJ should send the Veteran a notice letter in connection with his claims for service connection for an acquired psychiatric disorder and a left knee disorder. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claims; (2) inform him about the information and evidence that VA will seek to provide; and, (3) inform him about the information and evidence he is expected to provide. The letter should also explain how disability ratings and effective dates are determined. Specifically, the letter should notify the Veteran of the evidence necessary to substantiate the claims on both a direct and secondary basis. 2. The AOJ should secure any outstanding service personnel and service treatment records, to specifically include, but not limited to, any records pertaining to treatment following a motor vehicle accident during service. In addition, the AOJ should obtain further information from the Veteran regarding his reported stressors and attempt to verify these stressors. 3. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left knee, psychiatric disorders, cervical spine, thoracic and lumbar spine, migraines, and left shoulder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any left knee disorder that may be present. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that any current left knee disorder manifested during service or is otherwise causally or etiologically related to his service, to include any injury or symptomatology therein. In rendering this opinion, the VA examiner should address an April 2004 medical evaluation board report, in which the examining physician noted a “questionable 1+ Lachman’s on the left side.” The examiner should also state whether it is at least as likely as not that the Veteran’s current left knee disorder was either caused or permanently aggravated by his service-connected right knee disability. The Veteran has contended that his current left knee disorder was caused or aggravated his service-connected postoperative residuals of right retropatellar pain syndrome with degenerative changes. Specifically, he reported that he favors his left leg, which places stress on his left knee. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing, including PTSD sub scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran’s military service. With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events that he or she determines to have occurred in service may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. If there is a verified stressor, he or she should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including personal assault if found. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After the above development has been completed, the Veteran should be afforded a VA examination to ascertain the severity and manifestation of his service-connected cervical spine and thoracic spine disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s service-connected low back and neck disabilities. In particular, the examiner should provide the range of motion in degrees for the Veteran’s cervical and thoracolumbar spine. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability, including any additional loss of motion, due to those factors. The examiner should also indicate whether there is any form of ankylosis of the cervical or thoracolumbar spine and state the total duration of incapacitating episodes during the past 12 months due to each disability. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examinations conducted during the appeal period. See, e.g., August 2013 and April 2014 VA examination reports. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. As it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review. 7. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected left shoulder disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should report all signs and symptoms necessary for rating the Veteran’s left shoulder disability under rating criteria. In particular, the examiner should provide the range of motion of the right and left shoulders in degrees. In so doing, the examiner should test the Veteran’s range of motion of both shoulders in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including additional limitation of motion). The examiner should also state whether there is any form of ankylosis. He or she should further indicate whether there is any impairment of the humerus, such as malunion, fibrous union, nonunion (false flail joint) of the scapulohumeral joint, or loss of the head (flail shoulder). The examiner should also indicate whether there is any impairment of the clavicle or scapula, such as malunion, nonunion with or without loose motion, or dislocation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history,” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 8. After obtaining any outstanding records, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected headaches. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the disability under the rating criteria. The examiner should comment on the frequency and duration of the Veteran’s headaches, including the frequency of prostrating attacks and whether those attacks are productive of severe economic inadaptability. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel