Citation Nr: 18148088 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 13-35 575 DATE: November 6, 2018 ORDER Entitlement to an initial disability rating in excess of 50 percent for left hip osteoarthritis, status post left replacement with residual scar, is dismissed. Entitlement to a disability rating in excess of 40 percent for left lower extremity radiculopathy is dismissed. Entitlement to an effective date earlier than May 15, 2012, for the 40 percent evaluation for left lower extremity radiculopathy is dismissed. Entitlement to a disability rating of 40 percent, but no higher, for disc bulging at L3-4-5-S1, with bowel urgency, effective June 22, 2012, is granted, subject to the laws and regulations governing monetary benefits. Entitlement to a compensable disability rating for burn scar residuals, bilateral hands, wrist, arms, and left foot and ankle, is denied. REMANDED Entitlement to service connection for a bilateral ankle condition, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for cardiovascular disease, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to a disability rating in excess of 40 percent, from June 22, 2012, for disc bulging at L3-4-5-S1, with bowel urgency, is remanded. Entitlement to a disability rating in excess of 20 percent for right hip ostearthritis, prior to October 1, 2014, is remanded. Entitlement to a disability rating in excess of 30 percent for right total hip replacement (previously diagnosed as right hip osteoarthritis), from October 1, 2014, is remanded. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. In his November 2014 hearing, the Veteran explicitly and unambiguously withdrew his increased rating claim for left hip osteoarthritis, status post left replacement with residual scar. 2. In his November 2014 hearing, the Veteran explicitly and unambiguously withdrew his increased rating claim for left lower extremity radiculopathy. 3. In his November 2014 hearing, the Veteran explicitly and unambiguously withdrew his claim for an effective date earlier than May 15, 2012, for the 40 percent evaluation for left lower extremity radiculopathy. 4. Affording the Veteran the benefit of the doubt, from June 22, 2012, his disc bulging at L3-4-5-S1, with bowel urgency, has been characterized by forward flexion with objective evidence of painful motion limited to 30 degrees. 5. Throughout the appeal period, the Veteran’s burn scar residuals, bilateral hands, wrist, arms, and left foot and ankle, have been characterized as superficial and nonlinear. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran (or his representative) of the claim for a disability rating in excess of 50 percent for left hip osteoarthritis, status post left replacement with residual scar, have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal by the Veteran (or his representative) of the claim for a disability rating in excess of 40 percent for left lower extremity radiculopathy, have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal by the Veteran (or his representative) of the claim for an effective date earlier than May 15, 2012, for the 40 percent evaluation for left lower extremity radiculopathy, have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. Affording the Veteran the benefit of the doubt, from June 22, 2012, the criteria for a disability rating of 40 percent, but no higher, for disc bulging at L3-4-5-S1, with bowel urgency, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a, Diagnostic Codes (DCs) 5242-5237, General Rating Formula for Diseases and Injuries of the Spine. 5. The criteria for a compensable disability rating for burn scar residuals, bilateral hands, wrist, arms, and left foot and ankle, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.118, DC 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to March 1997. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In November 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). In an April 2014 rating decision, the RO recharacterized the Veteran’s service-connected right hip osteoarthritis, evaluated as 20 percent disabling, as a right total hip replacement, evaluated as 100 percent disabling effective August 19, 2013, and 30 percent effective October 1, 2014. As this does not constitute a full grant, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). In determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the United States Court of Appeals for Veterans Claims (Court) decision in Clemons and the uncertainty of the Veteran’s specific diagnosis, the Board has expanded the Veteran’s claim to include all acquired psychiatric disabilities, and the issue has been recharacterized as stated on the title page. This will provide the most favorable review of the Veteran’s claims in keeping with the Court’s holding in Clemons. Id. Dismissal of Claims Entitlement to an initial disability rating in excess of 50 percent for left hip osteoarthritis, status post left replacement with residual scar; entitlement to a disability rating in excess of 40 percent for left lower extremity radiculopathy; and entitlement to an effective date earlier than May 15, 2012, for the 40 percent evaluation for left lower extremity radiculopathy are dismissed. 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. In the present case, the Veteran has withdrawn his appeals listed above, 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 appeals, and they are dismissed. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With initial evaluations, as here, separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Entitlement to a disability rating in excess of 20 percent for disc bulging at L3-4-5-S1, with bowel urgency. Under DCs 5235 to 5243, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. 38 C.F.R. § 4.71a, DCs 5235 to 5243. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. The maximum 100 percent rating is warranted for with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine. Id. 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. Id. Under DC 5243, intervertebral disc syndrome (IVDS) may be rated under either the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes. Under the Formula for Rating IVDS, incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrant a rating of 10 percent. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrant a rating of 20 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a rating of 30 percent. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a rating of 60 percent. Id. For purposes of evaluating under DC 5243, an “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. The Board has reviewed the relevant evidence presently of record, including the June 2012 VA examination report. The VA examiner noted that the Veteran’s forward flexion was limited to 30 degrees as a result of objective evidence of painful motion. At a minimum, the Board finds this evidence to be consistent with the criteria for a 40 percent evaluation under 38 C.F.R. § 4.71a, DCs 5235 to 5243. Accordingly, the Board will partially grant that benefit effective June 22, 2012, the date of the Veteran’s VA examination, with the understanding that the question of whether an even higher evaluation is warranted remains on appeal, and the need for additional development and notification in this case will be addressed in the REMAND section below. Entitlement to a compensable disability rating for burn scar residuals, bilateral hands, wrist, arms, and left foot and ankle. The Veteran contends that his service-connected scars warrant a compensable disability rating. Under diagnostic code 7802, for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear, a 10 percent disability rating is warranted for an area or areas 144 square inches or greater. 38 C.F.R. § 4118, DC 7802. Note (1): A superficial scar is one not associated with underlying soft tissue damage. Id. Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under §4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. Id. The assigned noncompensable evaluation for the Veteran’s burn scar residuals contemplates a superficial and nonlinear scar, not of the head, face, or neck, in an area or areas less than 144 inches. 38 C.F.R. §§ 4.118, DC 7802. The evidence of record, including a June 2012 VA examination report, noted that the Veteran was diagnosed with chemical burns from hot engine turbine oil. The Veteran had scars on his trunk or extremities, but no scars or disfigurement on his head, face, or neck. During the examination, the Veteran noted that his scars were not painful or unstable, with frequent loss of covering of skin over the scars. His scars were the result of burns. The Veteran’s first scar was located on his right upper extremity and measured 0.1 inches. It was superficial and nonlinear, but not painful or unstable. The Veteran’s second scar was located on his left upper extremity and measured 0.1 inches. It was superficial and nonlinear, but not painful or unstable. The Veteran’s third scar was located on his left lower extremity and measured 0.1 inches. It was superficial and nonlinear, but not painful or unstable. At no time has the Veteran had a superficial and nonlinear scar or scars, not of the head, face, or neck in an area or areas of 144 inches or greater. Id. Additionally, a separate compensable evaluation under DC 7804 is not applicable because none of the Veteran’s scars are painful or unstable. Id. In his subsequent November 2014 hearing, the Veteran testified that his scars were not painful or unstable. He characterized his scars as being “itchy.” The Board notes that the Veteran has submitted no other evidence relating to the severity of his burn scar residuals. As a result, the Veteran’s symptoms reflect a noncompensable degree of severity. Id. The Board finds that the June 2012 VA examination report, describing the Veteran’s burn scar residuals symptoms, to be the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran and others are competent to observe his burn scar residual symptoms, they do not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, they do not have the training or credentials to determine the proper disability evaluation concerning his burn scar residual symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Additionally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran has not asserted that he is unable to work because of his service-connected disabilities, nor does the record reflect that he cannot work because of his service-connected disabilities. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. REASONS FOR REMAND Entitlement to service connection for a bilateral ankle condition, to include as secondary to service-connected disabilities. In his November 2014 hearing, the Veteran testified that his claimed bilateral ankle condition was a result of his other service-connected disabilities. He noted that his ankles had never been x-rayed or otherwise examined. As such, a VA examination is necessary to determine if the Veteran has a current bilateral ankle condition, and if so, whether it is secondarily related to his service-connected disabilities. 38 C.F.R. § 3.159(c)(4). Entitlement to service connection for cardiovascular disease, to include as secondary to service-connected disabilities. In a June 2005 VA treatment report, the Veteran was diagnosed with coronary artery disease (CAD). In a January 2015 VA examination report, the Veteran was again diagnosed with CAD, but no etiology opinion was given. In his November 2014 hearing, the Veteran testified that he had high blood pressure and took medication to control it. He stated that his heart condition was a result of the medication he took for his other service-connected disabilities. As such, a new VA examination is necessary to determine if the Veteran has a heart condition, and if so, whether it is secondarily related to his service-connected disabilities. Id. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran has never had a VA examination to determine if he is diagnosed with a psychological disorder, and if so, whether it is etiologically related to active service. In September 2014, after he was denied service connection for PTSD, the Veteran submitted a statement in support of claim for PTSD, describing his claimed stressor event. On remand, the RO should refer the case to the Joint Services Records Research Center (JSRRC) to attempt to verify the Veteran’s stressor event. Additionally, a VA examination is necessary to determine if the Veteran has an acquired psychiatric disorder, and if so, whether it is etiologically related to his active service. Id. Entitlement to a disability rating in excess of 40 percent, from June 22, 2012, for disc bulging at L3-4-5-S1, with bowel urgency. The Board notes that the most recent VA examination the Veteran had to evaluate the severity of his service-connected disc bulging was in June 2012. During his November 2014 hearing, the Veteran testified that his back symptoms had increased in severity. Specifically, he noted that his back condition impacted his bowel and bladder functions. As a result, and in light of the Veteran’s detailed testimony, a new VA examination is necessary to determine the current severity of the Veteran’s disc bulging at L3-4-5-S1, with bowel urgency. Id. Entitlement to disability ratings in excess of 20 percent for right hip ostearthritis, prior to October 1, 2014, and in excess of 30 percent for right total hip replacement (previously diagnosed as right hip osteoarthritis), from October 1, 2014. In his November 2014 hearing, the Veteran testified that he had his right hip replaced in August 2013. The Board notes that while an April 2014 rating decision recharacterized the Veteran’s service-connected right hip disability, and increased the rating to 30 percent, the Veteran has not had a VA examination since June 2012. As a result, and in light of the Veteran’s detailed testimony, a new VA examination is necessary to determine the current severity of the Veteran’s right total hip replacement. Id. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy. The Board has increased the disability rating for the Veteran’s service-connected back disability to 40 percent, and remanded the issue of an even higher rating. A favorable decision on the claim for an increased rating for disc bulging could impact upon the Veteran’s claim for a disability rating in excess of 10 percent for right lower extremity radiculopathy. Thus, the Board finds that these two issues are inextricably intertwined. As a result, the appeal is remanded. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc). The matters are REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all VA and private treatment records concerning these claims. 2. Refer the case to the JSRRC coordinator to make a formal finding that there is sufficient information required to verify the Veteran’s PTSD stressor, as noted in a September 2014 statement in support of claim. 3. Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of his claimed bilateral ankle and heart conditions. If any ankle or heart condition is diagnosed following testing, the examiner is requested to opine whether it is at least as likely as not (a 50 percent or greater probability) directly related to active military service. The examiner is also requested to opine whether it is at least as likely as not that any ankle or heart condition is proximately due to or chronically aggravated by the Veteran’s service-connected disabilities, as listed in the most recent April 2014 rating decision. The examiner must review the claims file, to include the January 2015 heart examination, diagnosing the Veteran with CAD. 4. Schedule the Veteran for a VA mental health examination, to be conducted by a VA psychologist or psychiatrist, to determine the identity and etiology of any acquired psychiatric disorder, to include PTSD. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is directed to prepare a report which fully discusses the Veteran’s symptomatology as related to the diagnostic criteria for an acquired psychiatric disorder, to include PTSD. After reviewing all pertinent records associated with the claims file, to include the September 2014 statement in support of claim for PTSD, and conducting an evaluation of the Veteran, if a psychiatric disorder (PTSD or otherwise) is diagnosed following testing, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any such acquired psychiatric disorder is directly related to active military service. 5. Afford the Veteran VA examinations to ascertain the current severity and manifestations of his disc bulging at L3-4-5-S1, with bowel urgency; right lower extremity radiculopathy; and right hip total replacement. The claims file must be reviewed by the examiner. The most up-to-date Disability Benefits Questionnaire must be employed, and all opinions and conclusions must be supported by a rationale. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel