Citation Nr: 18157442 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-27 925 DATE: December 12, 2018 ORDER The appeal for a compensable initial rating for hemorrhoids is dismissed. The appeal for a compensable initial rating for a right shoulder scar is dismissed. Entitlement to a higher initial rating for a low back sprain, currently rated as 10 percent disabling, is dismissed. Entitlement to a higher initial rating for right shoulder impairment of the humerus, currently rated as 30 percent disabling, is dismissed. Entitlement to a higher initial rating for right shoulder recurrent dislocation with arthritis, rated as 20 percent disabling since October 2, 2012, excluding a period of temporary total (100 percent) convalescence rating pursuant to 38 C.F.R. § 4.30 from April 30, 2013, through October 31, 2013, is dismissed. REMANDED Entitlement to service connection for residuals of a right bicep tear/injury, to include pain and weakness, is remanded. FINDINGS OF FACT 1. On September 19, 2018, prior to the promulgation of a decision in this appeal, the Board received notification from the Veteran that a withdrawal of the appeal for a compensable initial rating for hemorrhoids is requested. 2. On September 19, 2018, prior to the promulgation of a decision in this appeal, the Board received notification from the Veteran that a withdrawal of the appeal for a compensable initial rating for a right shoulder scar is requested. 3. There is no justiciable case or controversy for active consideration by the Board as to the issue of entitlement to a higher initial rating for right shoulder impairment of the humerus. 4. There is no justiciable case or controversy for active consideration by the Board as to the issue of entitlement to a higher initial rating for a low back sprain. 5. There is no justiciable case or controversy for active consideration by the Board as to the issue of entitlement to a higher initial rating for right shoulder recurrent dislocation with arthritis since October 2, 2012. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the Veteran for a higher initial rating for hemorrhoids 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 by the Veteran for a higher initial rating for a right shoulder scar have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. There remains no case or controversy as to the issue of entitlement to a higher initial rating for right shoulder impairment of the humerus. U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 4. There remains no case or controversy as to the issue of entitlement to a higher initial rating for a low back sprain. U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 5. There remains no case or controversy as to the issue of entitlement to a higher initial rating for right shoulder recurrent dislocation with arthritis since October 2, 2012. U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from May 2005 to October 2012, from January 2016 to December 2016, and from January 2017 to February 2018. His decorations and awards include the Bronze Star with Combat “V” device, the Navy Achievement Medal with Combat “V” device, the Combat Action Ribbon, the Iraq Campaign Medal, and the Afghanistan Campaign Medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2013 (right shoulder, low back, and hemorrhoids), and May 2013 (right bicep tear) rating decisions of the Department of Veterans Affairs (VA). During the appeal, the Veteran argued that there was clear and unmistakable error (CUE) in the February 2013 rating decision concerning the evaluation of his service connected right shoulder recurrent dislocation and low back disabilities. Veteran’s Correspondence (Aug. 17, 2017). However, a CUE claim “cannot lie as to a decision that is still open to direct review.” May v. Nicholson, 19 Vet. App. 310, 317 (2005). A collateral attack or CUE motion made prior to a determination becoming final bypasses the avenue of direct appeal and results in the veteran being “handicapped by the heightened burdens of proof and pleading that are characteristic of a collateral CUE attack.” Id. Therefore, a CUE claim cannot be filed as to a matter that is still appealable or pending. Id. at 320. In this case, the initial rating assigned for the right shoulder recurrent dislocation is still pending review and is not final, and the appeal and allegations are now moot as discussed below. Furthermore, the Veteran’s argument that the AOJ committed CUE in not assigning a 10 percent rating for his low back sprain is moot because the AOJ assigned a 10 percent rating for the entire period on appeal. Accordingly, these issues are not subject to a CUE claim and will not be addressed herein. The Board notes that, in September 2018 written correspondence, the Veteran disagreed with the effective date assigned for the grant of a separate rating for right shoulder impairment of the humerus by the rating decision of August 8, 2018. The Board’s dismissal below of the underlying issue of entitlement to a higher initial rating for right shoulder impairment of the humerus does not prejudice the Veteran in this regard. The Veteran has one year from the date of notice of the August 2018 rating decision to file an appropriate formal notice of disagreement with the effective date assigned. See generally Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006) (holding that there can be no freestanding earlier effective date claim raised any time after a regional office decision becomes final). Increased Ratings 1. The appeal for a compensable initial rating for hemorrhoids is withdrawn. 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 authorized representative. 38 C.F.R. § 20.204. In this case, the Veteran submitted clear and unambiguous written correspondence withdrawing this appeal. See correspondence received September 19, 2018. Since the Veteran withdrew his appeal, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. The appeal for a compensable rating for a right shoulder scar is withdrawn. As above, the Veteran submitted clear and unambiguous written correspondence withdrawing this appeal. See correspondence received September 19, 2018. Since the Veteran withdrew his appeal, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 3. Entitlement to a higher initial rating for right shoulder impairment of the humerus is moot. The Veteran initially filed a claim for right shoulder pain and was assigned a 20 percent rating for right shoulder recurrent dislocation/sublication with arthritis through the February 2013 rating decision. After initiating an appeal of the rating, the AOJ granted a separate 30 percent rating for right shoulder impairment of the humerus, effective September 20, 2017. See August 2018 Rating Decision. This constitutes a full grant of the benefit sought on appeal as the Veteran subsequently submitted correspondence stating “I am satisfied with the 30 percent evaluation…” for right shoulder impairment of the humerus. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Judicial precedent dictates that when there is no case or controversy, or when a once live case or controversy becomes moot, the Board lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992). Given the Veteran’s statement, there is no justiciable case or controversy for active consideration by the Board on the issue of entitlement to an increased rating for right shoulder impairment of the humerus. Accordingly, this appeal is dismissed. 4. Entitlement to a higher initial rating for service-connected low back sprain is moot. The February 2013 rating decision granted service connection for low back sprain and assigned a noncompensable rating. After initiating an appeal, the agency of original jurisdiction (AOJ) increased the initial rating to 10 percent for the entirety of the appeal period. See August 2018 Rating Decision. This constitutes a full grant of the benefit sought on appeal as the Veteran subsequently submitted correspondence stating “I am satisfied [with] the 10 percent evaluation and effective date of October 12, 2012” for the service connected low back sprain. See Veteran’s Correspondence (Sept. 19, 2018); AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Judicial precedent dictates that when there is no case or controversy, or when a once live case or controversy becomes moot, the Board lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992). Given the Veteran’s statement, there is no justiciable case or controversy for active consideration by the Board on the issue of entitlement to a higher initial rating for low back sprain. Accordingly, this appeal is dismissed. The Board notes the Veteran’s concern over “retropayment” of benefits. See Veteran’s Correspondence (Sept. 19, 2018). The Board emphasizes that the AOJ’s grant of the benefit sought constitutes the Veteran’s entitlement to the compensation associated with that assigned rating and “[t]here is a presumption of regularity that public officers perform their duties ‘correctly, fairly, in good faith, and in accordance with law and governing regulations.’” Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)). Nevertheless, an issue as to retropayment of benefits has not been developed for appellate consideration by the Board. 5. Entitlement to a higher initial rating for right shoulder recurrent dislocation with arthritis, rated as 20 percent disabling since October 2, 2012, excluding a temporary total evaluation (100 percent) for a period of convalescence from April 30, 2013, to October 31, 2013, is moot. In this case, a February 2013 rating decision granted service connection for right shoulder recurrent dislocation with arthritis, and assigned a 20 percent rating under diagnostic code 5203. After initiating an appeal and submitting medical evidence showing a requirement for surgical treatment necessitating convalescence, the Veteran’s disability rating was increased to 100 percent from April 30, 2013, to October 31, 2013, and returning to 20 percent thereafter. Although the AOJ took action to reduce the Veteran’s rating to zero percent (noncompensable) effective May 1, 2016, see February 2016 rating decision, the AOJ ultimately reversed the rating reduction and reassigned a 20 percent rating effective May 1, 2016, albeit under diagnostic code 5202 instead of 5203, see August 2018 rating decision. The August 2018 grant constitutes a full grant of the benefit sought on appeal as the Veteran subsequently submitted correspondence in September 2018 stating “I am satisfied with the reinstatement effective May 1, 2016, and the 20% evaluation.” See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Judicial precedent dictates that when there is no case or controversy, or when a once live case or controversy becomes moot, the Board lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992). Given the Veteran’s statement, there is no justiciable case or controversy for active consideration by the AOJ or the Board on the issue of entitlement to an increased rating for a higher initial rating for right shoulder recurrent dislocation with arthritis. Accordingly, this appeal is dismissed. The Board notes the Veteran’s concern over “retropayment” of benefits. See Veteran’s Correspondence (Sept. 19, 2018). The Board emphasizes that the AOJ’s grant of the benefit sought constitutes the Veteran’s entitlement to the compensation associated with that assigned rating and “[t]here is a presumption of regularity that public officers perform their duties ‘correctly, fairly, in good faith, and in accordance with law and governing regulations.’” Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)). Nevertheless, an issue as to retropayment of benefits has not been developed for appellate consideration by the Board. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a right bicep tear/injury, to include pain and weakness is remanded. This issue must be remanded for a VA examination and medical opinion. The Veteran contends, and his service treatment records show, that he sustained a right bicep tear during service. He was afforded a VA examination (VAX) on December 12, 2012. During the examination, the Veteran stated that his right bicep injury continues to cause him pain and weakness a few times per year lasting approximately one week every time. The physical examination did not demonstrate any cardinal signs or symptoms of a muscle injury, and there was no loss of muscle strength or muscle atrophy. See December 2012 VAX. The examiner diagnosed the Veteran with right bicep injury. Another VA examination was provided in March 2013, at which time the examiner diagnosed “right bicep injury, resolved.” The Veteran subsequently submitted a June 2014 orthopedic evaluation from Dr. D.M.L., a private physician. The evaluation shows the neuromuscular exam was normal, the biceps had full motor strength, and all three heads of the deltoid muscle set and fire appropriately. Dr. D.M.L. diagnosed the Veteran with right shoulder biceps tendinitis but did not provide an opinion as to its etiology. Although Dr. D.M.L.’s diagnosis appears to be based simply on the Veteran’s report of symptoms, the Veteran is competent to report that he suffers pain and weakness in his right bicep several times per year. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), held that the term “disability” refers to functional impairment, and pain can serve as a functional impairment when it impairs the body’s normal functioning. Id. at 1364. Since the record now indicates the existence of a current disability, another examination should be provided to clarify whether the Veteran has a current diagnosis of right shoulder biceps tendinitis or other right biceps disability, and to determine its etiology. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician (preferably an orthopedist) to determine the nature and etiology of any right bicep disability during or proximate to the claim. The examiner must opine whether it is at least as likely as not that the Veteran has current right bicep disability, to include pain resulting in functional impairment, related to an in-service injury, event, or disease, including the right bicep tear during service. Rationale must be provided for the opinion proffered. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel