Citation Nr: 18150424 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-31 998 DATE: November 15, 2018 ORDER Entitlement to an increased rating higher than 20 percent for left shoulder chronic strain is dismissed. Entitlement to service connection for right ankle disability is granted. Entitlement to service connection for left ankle disability is granted. REMANDED Entitlement to service connection for right shoulder degenerative joint disease (DJD) is remanded. Entitlement to service connection for left knee DJD is remanded. Entitlement to an increased rating higher than 10 percent for chronic lumbosacral strain is remanded. Entitlement to an increased rating higher than 10 percent for right knee chronic strain and traumatic arthritis is remanded. FINDINGS OF FACT 1. During his June 2017 hearing before the Board, prior to the promulgation of a decision in the appeal, the Veteran testified that he wished to withdraw his appeal as to the issue of entitlement to an increased rating higher than 20 percent for left shoulder strain. 2. The Veteran has left and right ankle disabilities that had their onset in service. CONCLUSION OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of entitlement to an increased rating higher than 20 percent for left shoulder strain. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for left and right ankle disability have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1989 to March 2003. These matters come before the Board of Veterans Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in June 2017; a transcript of the hearing is associated with the claims file. 1. Entitlement to an increased rating higher than 20 percent for left shoulder chronic strain An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. An appeal may be withdrawn by an appellant or by his representative. 38 C.F.R. § 20.204(a). Except when made on the record at a hearing, appeal withdrawals must be in writing. An appeal withdrawal is effective when received by the RO prior to the appeal being transferred to the Board or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204(b). 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). The Veteran was seeking entitlement to an increased rating higher than 20 percent for left shoulder strain. He perfected his appeal in July 2016. During his June 2017 hearing before the Board, the Veteran stated that he wished to withdraw his claim for an increased rating higher than 20 percent for left shoulder strain. “[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Moreover, a Board determination that a claimant validly withdrew his appeal orally must include a “finding regarding whether [the appellant] understood the consequences of withdrawing his claims.” Acree v. O’Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). Given the discussion during the Board hearing regarding the other claims, the Board finds that the Veteran understood the consequences of withdrawing the appeal from the denial of the claim for an increased rating higher than 20 percent for left shoulder strain. As the Veteran validly withdrew his appeal of the denial of this claim, there is effectively no longer any remaining allegation of error of fact or law concerning the issue of entitlement to an increased rating higher than 20 percent for left shoulder strain. See 38 U.S.C. § 7105 (d)(5). Accordingly, the Board does not have jurisdiction to review this claim, and it is dismissed. 2. Entitlement to service connection for right and left ankle disabilities is granted. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he has chronic bilateral ankle strains due to service. Specifically, during his June 2017 hearing, he testified that he injured his right ankle during a training exercise but that he did not remember what happened to his left ankle. He stated that he did not have ankle problems prior to service and that since service he has had continuous bilateral ankle pain. Service treatment records in November 1994 reflect that the Veteran twisted his ankle. Post-service treatment records document an August 2011 x-ray showing prior stress injuries. An August 2011 VA examination report reflects a diagnosis of ankle sprain with onset in 1994. The VA examiner opined that the Veteran’s bilateral ankle strain was less likely as not related to service because a diagnosis for the right ankle could not be made due to lack of objective findings. The examiner found the x-rays finding to be non-specific, and noted that a physical examination in December 2002 was silent for any ankle complaints or abnormalities. The Board finds the August 2011 VA examination to be internally inconsistent. Specifically, the VA examiner diagnosed bilateral ankle strains with onset in 1994, and acknowledged the Veteran’s reports of continuous bilateral ankle pain, but then stated that a diagnosis for the right ankle could not be made due to a lack of objective finding. Further, the VA examiner did not address the Veteran’s statements of continuity of symptomatology, and his in-service right ankle injury. Moreover, in Saunders, 886 F.3d at 1364-65, the Federal Circuit held that pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110. Thus, even in the absence of a diagnosis, the Veteran’s symptoms can constitute disability if they cause impairment. In this case, in his written statements and hearing testimony, the Veteran indicated that the pain he experiences cause significant consequences such as wearing braces on his ankles that in turn causes impairment. As the Veteran has shown that he has current left and right ankle disabilities, as that term has been defined by the Federal Circuit, that had their onset in service, service connection for these disabilities is warranted. REASONS FOR REMAND 1. Entitlement to service connection for right shoulder degenerative joint disease is remanded. The Veteran contends that he has a right shoulder disability secondary to his service-connected left shoulder DJD. Specifically, during the June 2017 hearing, the Veteran testified that his right shoulder started to bother him because of the left shoulder injury. Post-service medical records reflect mild degenerative changes in the glenohumeral and acromioclavicular (AC) joints of the bilateral shoulders in August 2011. However, there is no medical examination or opinion addressing the nature and etiology of the Veteran’s right shoulder pain and whether it is as likely as not due to or aggravated by his service-connected left shoulder disability. Therefore, a remand for a VA examination and opinion by an appropriate physician is necessary. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for left knee degenerative joint disease is remanded. The Veteran contends that he has a left knee disability due to service or secondary to his service-connected right knee disability. Specifically, during the June 2017 hearing, the Veteran testified that his left knee started to bother him during service because of his military occupational specialty (MOS) and because altered his gait after his right knee injury. Post-service medical records reflect mild degenerative changes in the bilateral knees in August 2011. However, there is no medical examination or opinion addressing the nature and etiology of the Veteran’s let knee pain and whether it is as likely as not related to service, or due to or aggravated by his service-connected right knee disability. Therefore, a remand for a VA examination and opinion by an appropriate physician is necessary. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see McLendon, 20 Vet. App. at 81. 3. Entitlement to an increased rating higher than 10 percent for chronic lumbosacral strain is remanded. The Veteran’s chronic lumbosacral strain is currently rated as 10 percent disabling. The Board notes that the Veteran was provided a VA examination for his low back in February 2017, which reflected decreased range of motion with pain on movement, and functional limitation due to pain on movement. However, the VA examiner did not provide the degree at which pain started during movement, and stated that he was unable to say if flare-ups would limit functional activity without mere speculation because the Veteran was not currently experience a flare-up. In June 2017, the Veteran reported that he now used a brace and that he experienced flare-ups once a week that resulted in him spending the day curled up on the couch. The Board finds the VA examination inadequate because it did not include range of motion findings for passive range of motion, nor specified whether the results were weight-bearing or nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Further, the VA examiner “failed to ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means” and then “estimate the Veteran’s functional loss due to flares based on all the evidence of record—including the Veteran’s lay information.” Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As noted by the Court in Sharp, such findings are contemplated by the VA Clinician’s Guide. As such, a new VA examination is necessary to properly assess the severity of the Veteran’s lumbosacral strain as pertaining to the Veteran’s functional limitations and additional limitation of motion due to flare-ups. 4. Entitlement to an increased rating higher than 10 percent for right knee chronic strain with arthritis is remanded. The Veteran’s right knee disability is currently rated as 10 percent disabling. The Board notes that the Veteran was provided a VA examination for his right knee in February 2017, which reflected decreased range of motion with pain on movement, and localized tenderness or pain over medial and lateral aspect of the patella. However, the VA examiner did not provide the degree at which pain started during movement, and stated that he was unable to say if weakness, fatigability or incoordination significantly limit functional ability with flare-ups without mere speculation because the Veteran was not currently experience a flare-up. In June 2017, the Veteran reported that he had clicking, popping, and pain; as well as swelling that was not documented in the medical records. He stated that his pain and stiffness had increased since his last VA examination, and that his knee disability had caused him to miss work approximately once every two weeks. The Board finds the VA examination inadequate because the VA examiner “failed to ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means” and then “estimate the Veteran’s functional loss due to flares based on all the evidence of record—including the Veteran’s lay information.” Sharp, 29 Vet. App. at 33. As noted by the Court in Sharp, such findings are contemplated by the VA Clinician’s Guide. As such, a new VA examination is necessary to properly assess the severity of the Veteran’s lumbosacral strain as pertaining to the Veteran’s functional limitations and additional limitation of motion due to flare-ups. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for a medical opinion addressing the nature and etiology of his right shoulder disability. The examiner should be provided with the Veteran’s claims file, including a copy of this REMAND. The examiner should address whether the Veteran’s right shoulder disability is at least as likely as not (i.e., a 50 percent or greater probability) either (a) caused or (b) aggravated by the Veteran’s service-connected left shoulder disability. The examiner must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. 2. Schedule the Veteran for a VA examination for a medical opinion addressing the nature and etiology of his left knee disability. The examiner should be provided with the Veteran’s claims file, including a copy of this REMAND. After reviewing the claims file and thoroughly examining the Veteran, the examiner should address the following: (a.) Whether any left knee disability is at least as likely as not (i.e. a 50 percent or greater probability) caused or otherwise related to the Veteran’s service. (b.) Whether any left knee disability is at least as likely as not (i.e., a 50 percent or greater probability) either (a) caused or (b) aggravated by the Veteran’s service-connected right knee disability. In answering these questions, the examiner should also address the Veteran’s competent assertions that he has experienced symptoms of left knee pain since service, and should specifically set forth the medical reasons for accepting or rejecting the Veteran’s statements regarding continuity of symptoms since his military service. The examiner must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. 3. Schedule the Veteran for a VA examination to determine the current severity of his lumbosacral spine disability. The Veteran’s VA claims file and a copy of this Remand should be made available to, and should be reviewed by the examiner. All indicated tests and studies should be performed and findings reported in detail. The examiner should conduct the examination in accordance with the current disability benefits questionnaire, to include range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing consistent with 38 C.F.R. § 4.59 as interpreted in Correia, as well as the degree at which pain begins. In addition, the examiner must address any additional functional impairment or limitation of motion due to flare-ups, even if the Veteran is not currently experiencing a flare-up. The examiner must ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means, such as the medical treatment records and the Veteran’s lay statements. Such findings are consistent with the VA Clinician’s Guide. 4. Schedule the Veteran for a VA examination to determine the current severity of his right knee disability. The Veteran’s VA claims file and a copy of this Remand should be made available to, and should be reviewed by the examiner. All indicated tests and studies should be performed and findings reported in detail. The examiner should conduct the examination in accordance with the current disability benefits questionnaire, to include range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing consistent with 38 C.F.R. § 4.59 as interpreted in Correia, as well as the degree at which pain begins. In addition, the examiner must address any additional functional impairment or limitation of motion due to flare-ups, even if the Veteran is not currently experiencing a flare-up. The examiner must ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means, such as the medical treatment records and the Veteran’s lay statements. Such findings are consistent with the VA Clinician’s Guide Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel