Citation Nr: 18155038 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 15-45 917 DATE: December 3, 2018 ORDER The appeal regarding the issue of entitlement to a rating in excess of 40 percent for lumbar strain and myositis is dismissed. The appeal regarding the issue of entitlement to a rating in excess of 10 percent for diabetes mellitus, type II is dismissed. The appeal regarding the issue of entitlement to service connection for a prostate disability is dismissed. The appeal regarding the issue of entitlement to service connection for radiculopathy of the bilateral lower extremities (separate from the Veteran’s service-connected peripheral neuropathy of the bilateral lower extremities) is dismissed. The appeal regarding the issue of entitlement to service connection for retinopathy is dismissed. Service connection for a heart disability is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for right carpal tunnel syndrome is remanded. Entitlement to an initial rating in excess of 10 percent prior to February 27, 2012 and in excess of 20 percent thereafter for left lower extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent prior to February 27, 2012 and in excess of 20 percent thereafter for right lower extremity peripheral neuropathy is remanded. Entitlement to a separate compensable evaluation for diabetic nephropathy is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a cervical disability is remanded. FINDINGS OF FACT 1. In a correspondence received in September 2016, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he was withdrawing his service connection claims for a prostate disability, radiculopathy of the bilateral lower extremities, and retinopathy, as well as increased rating claims for lumbar strain and diabetes mellitus, type II, on appeal within VA. 2. The Veteran did not have a heart disability which was caused or aggravated by a disease or injury in active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal on the issue of entitlement to a rating in excess of 40 percent for lumbar strain and myositis have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal on the issue of entitlement to a rating in excess of 10 percent for diabetes mellitus, type II have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of an appeal on the issue of entitlement to service connection for a prostate disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of an appeal on the issue of entitlement to service connection for retinopathy have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of an appeal on the issue of entitlement to service connection for radiculopathy of the bilateral lower extremities have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for service connection for a heart disability are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2011 and February 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. 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 authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran submitted a written statement, received in September 2016, expressing his desire to withdraw his appeal as to entitlement to service connection for a prostate disability, radiculopathy of the bilateral lower extremities, and retinopathy, as well as increased rating claims for lumbar strain and diabetes mellitus, type II. As the Veteran has withdrawn his appeal as to the above-listed issues, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and these issues are dismissed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). The Veteran generally contends that he has a heart disability due to service. See February 2011 Claim. The Board finds that service connection for a heart disability is not warranted. There is no indication of such diagnosis close in proximity to, or during, the pendency of the claims. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowksy, Shinseki, 26 Vet. App. 289 (2013). While the record reflects that the Veteran underwent a cardiovascular stress test and myocardial perfusion imaging stress test in May 2011, see December 2011 DBQ report and May 2011 VA treatment notes, there was no evidence of ischemia or other heart findings. The record otherwise fails to show any treatments or diagnoses referable to that claimed heart condition during the appeal period. In this regard, VA treatment records consistently reflect that the Veteran denied chest pain, dyspnea on exertion, and other heart symptoms. See, e.g. July 2011, February 2012, March 2013, October 2013, October 2014, May 2015, and October 2016 VA treatment notes (documenting negative cardiovascular findings for chest pain, orthopnea, paroxysmal nocturnal dyspnea, dyspnea on exertion, and claudication). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA’s and the Court’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). In the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225 (1992). In this regard, the Board recognizes the Veteran’s general contention that he has a heart disability related to his military service. However, the record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion as to the underlying cause of the Veteran’s pain. Absent the showing of such an underlying cause, is insufficient to show a current disability. Further, The Board is cognizant of Saunders v. Wilkie, 886 F.3d 1356 (2018), in which the Court held that pain alone can constitute a disability for VA purposes when such pain amounts to functional impairment. However, the evidence of record fails to show that the Veteran’s general reported pain due to the claimed heart disability results in functional impairment of earning capacity, and the Veteran has not contended otherwise. Additionally, given that the Board finds no probative evidence of a nexus between any heart conditions and the Veteran’s service, the service connection claim for a heart disability must be denied. The Board is grateful for the Veteran’s honorable service and regrets that a more favorable outcome could not be reached. REASONS FOR REMAND 1. Higher Ratings for Bilateral Carpal Tunnel Syndrome In a December 2014 DBQ report for cervical spine conditions, the examiner specifically found that the Veteran had muscle atrophy of the bilateral upper extremities, although other DBQ reports of record contain negative findings for muscle atrophy of the upper extremities. See November 2012 and October 2016 DBQ reports for peripheral nerves conditions. Given that a finding of muscle atrophy may potentially result in higher ratings for the Veteran’s service-connected bilateral upper extremity neurological disabilities, see 38 C.F.R. § 4.124a, Diagnostic Code 8515, a remand is necessary to afford him a new VA examination to address this discrepancy and to determine the current nature and severity of his bilateral upper extremity neurological symptoms. 2. Higher Ratings for Bilateral Lower Extremity Peripheral Neuropathy In an October 2016 DBQ report for peripheral nerves conditions, the examiner evaluated that the Veteran exhibited “mild” symptoms for his lower extremity peripheral neuropathy. In the same report, the October 2016 DBQ examiner also described that findings from a May 7, 2012 private electromyography (EMG) report reflected “[m]oderate to severe generalized peripheral neuropathy” for all extremities, although a review of that May 7, 2012 EMG report indicates that only the upper extremities were tested at that time. A remand is necessary to afford the Veteran a new VA examination to address this discrepancy and to determine the current nature and severity of the Veteran’s bilateral lower extremity neurological symptoms. 3. Service Connection for a Cervical Spine Disability Service treatment records document that the Veteran injured his neck in a car accident during his service. See March 1968 service treatment note (documenting the Veteran reported “stiffness” and “pain” in his neck after a March 1968 car accident). A November 2012 DBQ examiner diagnosed cervical strain and rendered a negative nexus opinion. As rationale, the examiner reasoned that there were “no more sick calls, treatments, diagnosis or another medical intervention” since the March 1968 in-service neck injury, and in doing so, essentially relied on the absence of documented treatment records and did not consider the Veteran’s general contention as to the onset and continuity of neck symptomatology since his service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, clinical evidence suggests a potential relationship between the claimed cervical spine disability and the Veteran’s service-connected lumbar strain, given that the Veteran has reported neck pain in association with his spine symptoms. See May 2012 private EMG report (documenting the Veteran’s report of “cervical” pain in association with “upper back pain”). A remand is necessary for an opinion addressing the above-noted deficiency and addressing whether the claimed cervical spine disability was caused or aggravated by the Veteran’s service-connected lumbar strain. 4. Separate Compensable Evaluation for Diabetic Nephropathy The Veteran contends that a separate compensable evaluation is warranted for his diabetic nephropathy, currently rated as noncompensably disabling as diabetes mellitus, type II with nephropathy. The Veteran was last afforded a DBQ examination specific to kidney conditions in December 2011, nearly seven years ago. In his December 2015 substantive appeal (via VA Form 9), the Veteran has reported that all his service-connected conditions have worsened in symptoms since the last examinations. Given the time elapsed since the last examination and possibility of worsening of his kidney disability, the Veteran should be afforded a new VA examination to obtain pertinent information to assess the current nature and severity of his service-connected diabetic nephropathy. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 5. Service Connection for an Acquired Psychiatric Disability The Veteran contends that he has an acquired psychiatric disability due to his service. He has reported that the claimed disability is due to having been “involved in an accident while driving a truck at Korea” and having been “stationed at the [Korean Demilitarized Zone] between North and South Korea.” See October 2016 DBQ report. Personnel records document that the Veteran served in Korea from June 1969 through February 1970 as a truck driver. See Record of Assignment. The AOJ has already verified that the Veteran served in a unit near the Korean Demilitarized Zone that exposed him to herbicide agents during his service and has granted service connection for diabetes mellitus, type II (currently not on appeal) on that basis. Service treatment records also reflect that the Veteran was involved in a car accident during his service. See March 1968 service treatment note. An October 2016 DBQ examiner diagnosed unspecified depressive disorder and rendered a negative nexus opinion. As rationale, the examiner remarked that “[t]here is no temporal or circumstantial evidence of a link between mental condition and military stressors endured,” but otherwise failed to specifically address the claimed stressors in her explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). A remand is necessary for an addendum addressing this deficiency. The matters are REMANDED for the following action: 1. Update private and VA clinical records of the Veteran. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected bilateral carpal tunnel syndrome and bilateral lower extremity peripheral neuropathy. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. Specifically, the examiner should address the above-noted discrepancy among the December 2014 DBQ examiner’s positive finding of muscle atrophy for both upper extremities and negative findings for the same from other DBQ examiners, see, e.g., November 2012 and October 2016 DBQ reports. The examiner should also address the October 2016 DBQ examiner’s statement that the May 7, 2012 private EMG findings pointed to “[m]oderate to severe generalized peripheral neuropathy” for all extremities, including the lower extremities, although the May 7, 2012 EMG report indicates that only the upper extremities were tested at that time. All opinions expressed must be accompanied by supporting rationale. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected diabetic nephropathy. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. All opinions expressed must be accompanied by supporting rationale. 4. Obtain a medical opinion from an appropriate examiner addressing the Veteran’s service connection claim for a cervical spine disability. (A) The examiner should identify all current diagnoses relevant to the cervical spine present since the date of the claim (i.e. since July 2012). (B) For each diagnosis, the examiner should opine whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such disability had its onset or is otherwise medically related to service. (C) For each diagnosis, the examiner should opine whether such was caused OR aggravated (beyond natural progression) by the service-connected lumbar strain. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation (specifying the baseline level of disability and current level of severity, based on consideration of VA’s rating schedule). The examiner should also consider all lay assertions, to include any allegations of continuity of symptomatology. A complete rationale should be given for all opinions and conclusions expressed. 5. Obtain a medical opinion from an appropriate examiner addressing the Veteran’s service connection claim for an acquired psychiatric disability. (A) The examiner should identify all current diagnoses relevant to the claimed acquired psychiatric disability present since the date of the claim (i.e. since February 2012). (B) For each diagnosis, the examiner should opine whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such disability had its onset or is otherwise medically related to service, to specifically include the March 1968 car accident and having served near the Korean Demilitarized Zone. A complete rationale must be given for all opinions and conclusions expressed. (Continued on the next page) 6. After completing the above, and any other development as may be indicated, the AOJ is to readjudicate the claims based on the entirety of the evidence of record. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kim, Associate Counsel