Citation Nr: 18149710 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 15-18 791 DATE: November 14, 2018 ORDER The appeal pertaining to the issue of entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for a bilateral eye disorder, claimed as blurred or tunnel vision, is dismissed. The appeal pertaining to the issue of entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for a head injury is dismissed. The appeal pertaining to the issue of entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for syncope, also claimed as blackouts, is dismissed. The appeal pertaining to the issue of entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for a sleeping disorder is dismissed. The appeal pertaining to the issue of entitlement to an initial compensable rating for pseudofolliculitis barbae is dismissed. REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for a right shoulder disorder, to include as secondary to a neck disorder, is remanded. Entitlement to service connection for a left shoulder disorder, claimed as secondary to a neck disorder, is remanded. Entitlement to service connection for a disability manifested by tingling and numbness of the right fingers and arm, claimed as secondary to a neck disorder, is remanded. Entitlement to service connection for a hernia is remanded. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is remanded. FINDING OF FACT In March 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his representative, that a withdrawal of his appeal as to the issues of entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for a bilateral eye disorder, a head injury, syncope, and a sleeping disorder, and entitlement to an initial compensable rating for pseudofolliculitis barbae is requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for a bilateral eye disorder by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for a head injury by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for syncope by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for a sleeping disorder by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to an initial compensable rating for pseudofolliculitis barbae by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1, 1988, to July 23, 1992, which is considered honorable for VA purposes. He had additional active service from July 24, 1992, to November 29, 1996; however, such has been determined to be dishonorable for VA purposes and is a bar to VA benefits. See June 2012 Administrative Decision. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in June 2012, January 2014, and April 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Board notes that jurisdiction pertaining to issues of entitlement to an initial compensable rating for pseudofolliculitis barbae and entitlement to service connection for a hernia was accepted as the Veteran indicated in his May 2015 substantive appeal that he wished to appeal all issues addressed in the April 2015 statement of the case. See Evans v. Shinseki, 25 Vet. App. 7 (2011). The Veteran also submitted additional evidence for consideration in his appeal. 38 U.S.C. § 7105(e)(1). The Board observes that, subsequent to the hearing, additional evidence consisting of VA treatment records was associated with the record and the Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration. However, as he has withdrawn the claims that are dismissed herein, and the remainder of the issues on appeal are being remanded, the Board finds no prejudice to the Veteran in proceeding with the adjudication of such matters at this time. The Board further notes that an August 2017 rating decision denied service connection for an acquired psychiatric disorder. Thereafter, the Veteran entered a notice of disagreement in October 2017. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claim is still being developed by the AOJ. As a result, the Board declines jurisdiction over this issue until such time as an appeal to the Board is perfected. 1. Entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for a bilateral eye disorder, claimed as blurred or tunnel vision. 2. Entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for a head injury. 3. Entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for syncope, also claimed as blackouts. 4. Entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for a sleeping disorder. 5. Entitlement to an initial compensable rating for pseudofolliculitis barbae. 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. Id. In the present case, in March 2018, the Veteran, through his representative, withdrew his appeal as to the issues of entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for a bilateral eye disorder, a head injury, syncope, and a sleeping disorder, and entitlement to an initial compensable rating for pseudofolliculitis barbae. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to such issues. Accordingly, the Board does not have jurisdiction to review the appeal of such issues and they are dismissed. REASONS FOR REMAND As an initial matter, the Board notes that, at the March 2018 Board hearing, the Veteran stated that, after service, he sought treatment from a physician for his neck disorder and was informed that he had a ruptured vertebra in the neck. Consequently, while on remand, the Veteran should be given an opportunity to identify any records relevant to the claims on appeal that have not been obtained, to include the aforementioned records. Thereafter, all identified records should be obtained. 6. Entitlement to service connection for a neck disorder. The Veteran contends that he has a current neck disorder that resulted from the same incident in which he injured his back, which is currently service-connected. Specifically, the Veteran’s STRs reveal that, in September 1988, he slipped and fell on the galley and complained of back pain. However, at the March 2018 Board hearing, the Veteran testified that he also reported his neck hurt at the time, but his treatment providers did not concentrate on it. Also of record is a March 2018 statement from B.M., who stated that he witnessed the Veteran fall onboard a ship sometime around 1991-1992, injuring his back and neck region. The Veteran’s post-service treatment records also indicate that he has a current neck disorder, to include cervical degenerative disc disease (DDD). See September 2011 and November 2011 VA treatment records. Thus, the Board finds a remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of his claimed neck disorder, to include whether such is related to his in-service fall. 7. Entitlement to service connection for a right shoulder disorder, to include as secondary to a neck disorder. 8. Entitlement to service connection for a left shoulder disorder, claimed as secondary to a neck disorder. 9. Entitlement to service connection for a disability manifested by tingling and numbness of the right fingers and arm, claimed as secondary to a neck disorder. The Veteran contends that his right shoulder disorder is related to his military service. Specifically, at the March 2018 Board hearing, he stated that, when he was trying to maneuver a valve on a pipe, he felt his right shoulder pop. The Veteran further alleges that his current neck disorder caused or aggravated his bilateral shoulder disorder and neurological symptoms in his right upper extremity (RUE). In this regard, the Veteran’s service treatment records (STRs) from his honorable period of service reveal that, in September 1989, he complained of right shoulder pain and an assessment of a soft tissue injury of the right shoulder was noted. Furthermore, a post-service September 2011 VA treatment record indicated that the Veteran had neck pain that was radiating to his left shoulder with some tingling. In June 2011, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral shoulder disorder and RUE symptoms. At such time, impressions of mild left shoulder degenerative joint disease (DJD) at the acromioclavicular joint, right shoulder early degenerative changes at the acromioclavicular joint, and RUE paresthesias of unknown etiology. As pertinent to the Veteran’s bilateral shoulder disorder, the examiner opined that it was less likely as not that his current shoulder pain on either side was a continuation of the symptoms from the military as he did not have any established chronicity. In this regard, he based his opinion on the fact that there was only one visit for right shoulder pain in September 1989 and that there were no visits during service regarding the Veteran’s left shoulder. The examiner also found that it was less likely than not that the Veteran’s RUE paresthesias was related to his military service. However, at his March 2018 Board hearing, the Veteran testified to a continuity of shoulder symptomatology since service. Therefore, a remand is necessary to obtain an addendum opinion addressing such statements. Further, the examiner should also address the potential relationship between the Veteran’s bilateral shoulder disorder and RUE paresthesia, and his neck disorder. 10. Entitlement to service connection for a hernia. The Veteran contends that his pre-existing umbilical hernia was aggravated by his period of honorable service as he had to do heavy lifting. In the alternative, he alleges that he has a current inguinal hernia that is related to such service. In this regard, the Veteran’s May 1988 enlistment examination noted that he had a small asymptomatic umbilical hernia. In July 1989, he requested surgery for his hernia, and an assessment of rule out inguinal hernia was noted. The next day, the Veteran reported that he was told he had an inguinal hernia, but an assessment of groin strain was noted and, in August 1989, he underwent surgery for an abscess around a hernia in the inguinal region. In September 1991, the Veteran was also seen for persistent right lower quad pain, and a provisional diagnosis of rule out hernia (inguinal) was noted. In December 2013, the Veteran was afforded a VA examination, at which time the examiner found that he did not have an inguinal or femoral hernia; rather, he had a prominent umbilicus without significant hernia. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. In support thereof, the examiner explained that the Veteran’s STRs documented that he did not have an inguinal or umbilical hernia in July 1989. However, the Board finds that a remand is warranted to obtain a new VA examination to determine if the Veteran has a current hernia as a September 2017 private treatment record reflects a current diagnosis of an inguinal hernia. 11. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is remanded. The Board observes that the Veteran was last afforded a VA examination in December 2014 in order to ascertain the nature and severity of his back disability. However, at the March 2018 Board hearing, he indicated that his symptoms had worsened as he stated that he was having more difficulty with pain and range motion. Thus, the Board finds that a remand is warranted in order to provide the Veteran another VA examination to assess the current nature and severity of his service-connected back disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In conducting such examination, the examiner should comply with the United States Court of Appeals for Veterans Claims’ (Court’s) holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), to include providing a retrospective medical opinion addressing the range of motion findings at the June 2011 and December 2014 VA examinations pursuant to Correia. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his claims, to specifically include those pertaining to his ruptured vertebra in the neck. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all outstanding records have been associated with the record, The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed neck disorder, and an addendum opinion addressing the etiology of his bilateral shoulder disorder and RUE paresthesia. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the record, the examiner should address the following inquiries: (A) Identify all of the Veteran’s currently diagnosed neck disabilities, to include cervical DDD, that have been present at any time since October 2010, or in close proximity thereto. (B) For all identified neck disabilities, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such had its onset in, or is otherwise related to the Veteran’s period of honorable service, to include his in-service fall on the galley. In this regard, the examiner is advised that, while no complaints or treatment referable to his neck was noted at such time, the Veteran and his fellow service member, B.M., have reported that he injured his neck, in addition to his back, as a result of such fall. Therefore, for the purpose of rendering such opinion, the examiner should accept that the Veteran injured his neck as a result of such fall. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s STRs are silent as to any neck disorder or a lack of medical records demonstrating a continuity of care. In rendering his or her opinion, the examiner must also consider and discuss the lay statements of record regarding the onset of the Veteran’s neck disorder and the continuity of symptomatology of the claimed disorder. (C) For the Veteran’s right shoulder disorder, diagnosed as right shoulder early degenerative changes at the acromioclavicular joint, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such had its onset in, or is otherwise related to the Veteran’s period of honorable service, to include his treatment in September 1989 for right shoulder pain and a soft tissue injury. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any other right shoulder disorder. In rendering his or her opinion, the examiner must also consider and discuss the lay statements of record regarding the onset of the Veteran’s right shoulder disorder and the continuity of symptomatology of the claimed disorder. (D) For the Veteran’s left shoulder disorder (diagnosed as mild left shoulder DJD at the acromioclavicular joint), right shoulder disorder (diagnosed as right shoulder early degenerative changes at the acromioclavicular joint), and RUE paresthesia, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such are caused or aggravated by his neck disorder. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for all opinions offered should be provided. 3. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any hernia disorder. The record, to include a copy of this Remand must be made available to the examiner, and any indicated evaluations, studies, and tests should be conducted. Following a review of the record, the examiner should address the following inquiries: (A) Identify all of the Veteran’s currently diagnosed hernia disorders, to include an umbilical and/or inguinal hernia, that have been present at any time since February 2013, or in close proximity thereto. If the examiner does not find that the Veteran has a current hernia disorder, he or she should reconcile such determination with the evidence of record reflecting a diagnosis of an inguinal hernia. See June 2017 treatment record. (B) For all identified umbilical hernias, the examiner is asked to opine as to whether such disorder increased in severity during service. If so, he or she should opine as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (C) For all identified hernias other than an umbilical hernia, to include an inguinal hernia, the examiner should opine as to whether there is clear and unmistakable evidence that such disorder pre-existed service. (i) If so, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran’s disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If not, the examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder had its onset during, or is otherwise related to, the Veteran’s period of honorable service, to include his in-service complaints and treatment referable to a hernia. Specifically, the examiner should consider and discuss the July 1989, August 1989, and September 1991 STRs indicating the Veteran may have had an inguinal hernia. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any other hernia disorder. A rationale for all opinions offered should be provided. 4. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected back disability. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s back disability. (B) The examiner should record the range of motion of the lumbar spine observed on clinical evaluation. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 why that is so. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran’s back disability conducted in June 2011 and December 2014. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his back, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner is requested to indicate whether intervertebral disc syndrome related to the Veteran’s service-connected back disability is present. If so, the examiner should provide the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an ‘incapacitating episode’ is defined as 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. (G) The examiner is also requested to indicate whether the Veteran’s back disability results in any objective neurologic impairments and, if so, the nature and severity of such neurologic impairment. (H) The examiner should also comment upon the functional impairment resulting from the Veteran’s back disability. A rationale for all opinions offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel