Citation Nr: 18158646 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-61 865 DATE: December 17, 2018 ORDER Entitlement to service connection for dizziness and loss of balance is granted. Entitlement to service connection for umbilical hernia and diastasis recti, claimed as knots in stomach, is granted. REMANDED Entitlement to service connection for broken ribs is remanded. Entitlement to service connection for chest pain is remanded. Entitlement to service connection for speech problems, including stuttering, is remanded. Entitlement to service connection for hair loss is remanded. Entitlement to service connection for loss of sex drive is remanded. Entitlement to higher initial ratings for left shoulder degenerative arthritis and impingement syndrome, currently rated as 20 percent disabling prior to August 21, 2014, and as 30 percent disabling from that date, is remanded. Entitlement to higher initial ratings for left hand strain (limitation of motion of the thumb), currently rated as noncompensable prior to August 21, 2014, and as 10 percent disabling from that date, is remanded. Entitlement to higher initial ratings for right hand strain (limitation of motion of the thumb), currently rated as noncompensable prior to August 21, 2014, and as 10 percent disabling from that date, is remanded. Entitlement to higher initial ratings for degenerative arthritis of the cervical spine, currently rated as 10 percent disabling prior to August 21, 2014, and as 30 percent disabling from that date, is remanded. Entitlement to an initial rating in excess of 10 percent for right knee degenerative arthritis and patellofemoral stress syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for left knee chondromalacia and patellofemoral pain syndrome is remanded. Entitlement to higher initial ratings for left ankle strain, currently rated as noncompensable prior to August 21, 2014, and as 10 percent disabling from that date, is remanded. Entitlement to higher initial ratings for right ankle strain, currently rated as noncompensable prior to August 21, 2014, and as 10 percent disabling from that date, is remanded. Entitlement to higher initial ratings for gastroesophageal reflux disease (GERD), currently rated as noncompensable prior to August 21, 2014, and as 10 percent disabling from that date, is remanded. Entitlement to higher initial ratings for tension headaches, currently rated as noncompensable prior to August 21, 2014, and as 30 percent disabling from that date, is remanded. Entitlement to higher initial ratings for PTSD and TBI with vertigo, previously rated as anxiety disorder, currently rated as 30 percent disabling prior to August 21, 2014, and as 50 percent disabling from that date, is remanded. FINDINGS OF FACT 1. In a July 2014 rating decision, the Regional Office (RO) granted entitlement to service connection for traumatic brain injury (TBI) with memory loss, dizziness, and loss of balance. 2. There is not clear and unmistakable error (CUE) in the July 2014 rating decision’s finding that the Veteran’s dizziness and loss of balance are attributable to his service-connected TBI. 3. The Veteran’s umbilical hernia and diastasis recti began during his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for dizziness and loss of balance have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.303. 2. The criteria for entitlement to service connection for umbilical hernia and diastasis recti, claimed as knots in stomach, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1985 to August 2011. 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; 38 C.F.R. § 3.303. 1. Entitlement to service connection for dizziness and loss of balance The Veteran seeks entitlement to service connection for dizziness and loss of balance. In the July 2014 rating decision, the RO granted the Veteran entitlement to service connection for TBI with memory loss, dizziness, and loss of balance. In so doing the RO explained that a May 2014 VA TBI examiner attributed the Veteran’s dizziness and loss of balance to his TBI. The July 2014 rating decision constitutes a final decision recognizing the Veteran’s dizziness and loss of balance as caused by or a manifestation of his service-connected TBI. As such, the decision may not be revised except upon a finding of CUE. See 38 C.F.R. §§ 3.104(a), 3.105(a). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). To be clear and unmistakable, an error must be “undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.” Russell v. Principi, 3 Vet. App. 310, 313 (1992). In this case, the evidence of record at the time of the July 2014 rating decision included the May 2014 VA examiner’s finding that the Veteran’s dizziness is a subjective symptom of his service-connected TBI. As such, it was at least debatable whether the Veteran’s dizziness and loss of balance are manifestations of his service-connected TBI, and there is not CUE in the RO’s finding in the July 2014 rating decision that the Veteran’s dizziness and loss of balance are secondary to or manifestations of his service-connected TBI. Therefore, revision of that decision is not permissible. See 38 C.F.R. § 3.104(a); Russell, 3 Vet. App. at 313. Accordingly, the Board concludes that the criteria for entitlement to service connection for dizziness and loss of balance, as secondary to or manifestations of the service-connected TBI, is warranted. 2. Entitlement to service connection for knots in stomach The Veteran contends that he has knots in his stomach that began during his active service. Based on the evidence of record, the Board concludes that the Veteran’s reported knots in his stomach have been medically characterized as an umbilical hernia and diastasis recti, and that those conditions began during his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Specifically, the Veteran’s service treatment records show that he was seen in November 2007 for complaints of a bulge in the abdominal wall that had been present for approximately one year. The attending physician assessed the condition as diastasis recti, and noted that the Veteran also had a small reducible umbilical hernia. A June 2016 VA treatment note indicates that the Veteran has a current diagnosis of an abdominal hernia. In May 2014, a VA examiner indicated that the Veteran currently had diastasis recti and opined that the Veteran’s diastasis recti and umbilical hernia are at least as likely as not incurred in or caused by an in-service injury, event, or illness. The examiner explained that diastasis recti do not resolve, but can improve with weight loss and exercise. In the Veteran’s case, his diastasis recti have not changed since diagnosis and, therefore, a link exists between the current diagnosis and the diastasis recti diagnosed during his active service. The Board finds that the May 2014 VA examiner’s opinion is entitled to probative weight. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (the thoroughness and detail of a medical opinion is a factor in assessing the probative value of the opinion). There is no probative evidence of record contrary to the May 2014 VA examiner’s positive nexus opinion. Accordingly, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s current umbilical hernia and diastasis recti had their onset during his active service. The benefit of the doubt is resolved in the Veteran’s favor, and the Board therefore concludes that entitlement to service connection for the umbilical hernia and diastasis recti must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for broken ribs, chest pain, speech problems, and hair loss; and entitlement to higher initial ratings for PTSD and TBI with vertigo, tension headaches, GERD, and degenerative arthritis of the cervical spine are remanded. A March 2015 VA treatment note indicates that the Veteran received medical care at the Reynolds Army Hospital during the appeal period. A remand is required to allow VA to request those records. In addition, the record includes a July 2014 letter from J. Norrell, LCSW, who states that the Veteran “began treatment for [PTSD] here in this clinic in April 2014.” VA has not yet made efforts to obtain the Veteran’s full treatment records from Mr. Norrell. The VA treatment records also refer to treatment from “outside providers.” A remand is required to allow the Veteran to identify and authorize for release to VA full records from Mr. Norrell and any other non-VA health care provider. 2. Entitlement to service connection for loss of sex drive is remanded. A May 2014 VA examiner indicated that the Veteran’s loss of sexual drive is not related to an undiagnosed condition. Rather, the condition is diagnosable as impaired libido. However, the examiner did not provide an opinion as to whether the Veteran’s impaired libido may be directly related to his active service or proximately due to or aggravated by his service-connected disabilities. A remand is required to obtain an addendum opinion as to the issue. 3. Entitlement to higher initial ratings for left and right knee degenerative arthritis and patellofemoral stress syndrome, and for left and right ankle strain are remanded. Although the record contains contemporaneous VA examinations regarding the Veteran’s service-connected disabilities of the bilateral knees and bilateral ankles, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements or testing for pain on weight-bearing. The issues must be remanded so that new examinations may be provided. 4. Entitlement to higher initial ratings for left shoulder degenerative arthritis and impingement syndrome, and for left and right hand strain (limitation of motion of the thumb) are remanded. Although the record contains a contemporaneous VA examination regarding the Veteran’s service-connected left shoulder disability and disabilities of the bilateral hands, the examinations do not comply with the requirements in Correia, 28 Vet. App. at 168. The examinations do not contain passive range of motion measurements or testing for pain on weight-bearing. The examinations also do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner indicated that the Veteran would have additional functional loss during flare-ups in the service-connected left shoulder disability and disabilities of the bilateral hands, but concluded that the degree of loss “is approximately difficult to assess” and cannot be evaluated without resorting to mere speculation. The examiner did not explain that conclusion and did not indicate that the speculation was due to lack of knowledge within the medical community. The issues must be remanded so that new examinations may be provided.   The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for J. Norrell, LCSW, and any other non-VA health care provider. Make two requests for any records so identified, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s treatment records from Reynolds Army Hospital. Document all requests for information as well as all responses in the record. 3. Undertake any further development deemed necessary in view of the expanded record. 4. After completion of the above, schedule the Veteran for examinations as to the current severity of his service-connected left shoulder disability and disabilities of the bilateral knees, bilateral hands, and bilateral ankles. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected left shoulder disability and disabilities of the bilateral knees, bilateral hands, and bilateral ankles alone and discuss the effect of those disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel