Citation Nr: 19166294 Decision Date: 08/28/19 Archive Date: 08/27/19 DOCKET NO. 16-44 890 DATE: August 28, 2019 ORDER Entitlement to a rating in excess of 20 percent for residuals of fractured right hip and pelvis (impairment of the thigh) has been withdrawn. Entitlement to a rating in excess of 30 percent for calcific sub deltoid bursitis, residuals of a fractured right shoulder, has been withdrawn. Entitlement to service connection for fracture of the left clavicle, to include as secondary to fractured right hip and pelvis, is granted. REMANDED Entitlement to service connection for a lumbar spine disability, to include as due to service connected residuals of a fractured right hip and pelvis, is remanded. Entitlement to a compensable rating for residuals of fracture of the bilateral maxilla is remanded. Entitlement to a compensable rating for fracture of the right condyle of the mandible is remanded. Entitlement to a compensable rating for residuals of a fractured right hip and pelvis (limitation of extension) is remanded. Entitlement to a compensable rating for residuals of a fractured right hip and pelvis (limitation of flexion) is remanded. Entitlement to total disability based on individual unemployability is remanded. FINDINGS OF FACT 1. During the May 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his claim of entitlement to a rating in excess of 20 percent for residuals of fractured right hip and pelvis (impairment of the thigh). 2. During the May 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his claim of entitlement to a rating in excess of 30 percent for calcific sub deltoid bursitis, residuals of a fractured right shoulder. 3. Resolving reasonable doubt in the Veteran’s favor, his left clavicle was fractured as a result of a fall after his service-connected right hip gave way. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a rating in excess of 20 percent for residuals of fractured right hip and pelvis (impairment of the thigh) by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2014); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of entitlement to a rating in excess of 30 percent for calcific sub deltoid bursitis, residuals of a fractured right shoulder, by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for service connection for a left clavicle fracture as secondary to service-connected right hip fracture residuals are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from May 1959 to May 1962. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared and testified at a personal hearing in May 2019 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran reported during the 2019 Board hearing that he was no longer able to keep cows or grow as many vegetables due to his service-connected disabilities. A January 2003 VA examination included that the Veteran had to quit working as a carpenter due to his worsening pain, including due to his shoulder. Other records indicate that the Veteran retired. Given the above, the Board will err on the side most beneficial to the Veteran and finds that a claim of TDIU has been raised by the record. If the Veteran does not wish to pursue this claim, he or his representative can inform VA of such. Issues Withdrawn 1. Entitlement to a rating in excess of 20 percent for residuals of fractured right hip and pelvis (impairment of the thigh) and entitlement to a rating in excess of 30 percent for calcific sub deltoid bursitis, residuals of a fractured right shoulder, have been 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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the Veteran’s May 2019 hearing, he informed the Board that he wished to withdraw his appeal of to a rating in excess of 20 percent for residuals of fractured right hip and pelvis (impairment of the thigh) and entitlement to a rating in excess of 30 percent for calcific sub deltoid bursitis. Hence, there remain no allegations of errors of fact or law concerning these issues for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and they are dismissed. The withdrawal is permissible under the Board’s rules of practice. See 38 C.F.R. § 20.204. Given the Veteran’s clear intent to withdraw his appeals, further action by the Board on these matters would not be appropriate. 38 U.S.C. § 7105. 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 military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (adding that “[w]hen service connection is thus established for a secondary condition; the secondary condition shall be considered a part of the original condition”). Additionally, service connection may be established by the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for fracture of the left clavicle, to include as secondary to fractured right hip and pelvis, is granted. During his Board hearing, the Veteran testified that he fell and broke his clavicle one morning when he stepped outside to get his morning newspaper and his right hip gave way and he collapsed on the sidewalk. He stated that he was taken to the emergency room, his broken clavicle was fixed and he was placed in a sling for six weeks. He stated that there is now a “big old knot” at the top of his shoulder. A November 2011 Emergency Room record from Marshall Medical Center North included that the Veteran was seen on November 6, 2011 with left shoulder pain after falling. He was noted to have a fracture of the distal left clavicle. A March 2015 VA mental health examination included the Veteran’s report that he had been more limited in his activities in the past few years due to twice falling and injuring his shoulder and back. He stated he was no longer able to keep cattle after he broke his left shoulder two years prior. Ongoing VA treatment records include a medical history of a November 2011 fall injury with fractured distal left clavicle. An April 2015 VA examination included that the Veteran had left shoulder strain initially diagnosed in 2011/2; however, it also included that he had injury to his left shoulder in a 2014 fall. Imaging of the left shoulder showed deformity at the distal clavicle with widening of the AC interval and ossific densities/heterotopic ossification by the distal clavicle, likely related to prior trauma. The VA examiner provided a negative medical opinion. The examiner noted that the Veteran reported that due to his right hip condition, he fell and injured his left shoulder, but that records did “not indicate any reason for the Veteran’s report of fall.” The examiner noted that “falls may be precipitated by innumerous events.” An April 2015 VA hip examination included that the Veteran had reduced right hip range of motion in all planes. He was not noted to have reduced muscle strength, but he did regularly use a cane to aid ambulation. He had pain during range of motion testing. Joint stability was not tested. Here, the Veteran has a service-connected right hip and pelvis disability, resulting in limited range of motion and pain, and which requires the use of a cane for ambulation. In November 2011, the Veteran fell and suffered a fractured distal left clavicle. The Veteran has reported to VA care providers and testified at a Board hearing that he fell in November 2011 due to his right hip “giving way.” The Veteran is competent to report feelings of instability and events that have occurred, such as falling. There is no evidence of record that contradicts the Veteran’s report of his left clavicle injury. As such, the Board finds his statements regarding this injury to be credible. As the Veteran’s service-connected right hip disability resulted in a fall wherein he fractured his distal left clavicle, the Board finds that entitlement to service connection for residuals of a distal left clavicle fracture is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability, to include as due to service connected residuals of a fractured right hip and pelvis, is remanded. The Veteran has filed a claim of entitlement to service connection for a lumbar spine disability, which he alleges is a result of falling. During his May 2019 Board hearing, the Veteran reported that he fell and fractured his distal left clavicle as a result of his service-connected right hip giving way. The record does show that in November 2011, the Veteran fractured his distal left clavicle after a fall. The record did not include treatment for a low back injury at that time. The Veteran testified that he believed he injured his back during that fall, but because his clavicle injury was more severe, he did not initially notice and treatment providers did not initially notice. In April 2015, the Veteran was afforded a VA examination. He was diagnosed with lumbar spine strain. He reported that he had fallen twice due to his right hip. Once in 2011 when he injured his left shoulder, and once in 2014. The examiner provided a negative nexus opinion, noting that a Lakeside Clinic record from September 2014 included that his back pain was gradual and began without a clear precipitating event. A review of the record shows that the Veteran reported low back pain in April 2002, to a physician at Calhoun Family Practice. He was assessed with arthralgia/myalgia. In October 2002, he reported worsening of his right hip and low back pain. In December 2002, he complained of pain in his neck, back, right hip, and right shoulder. It appears (handwriting is difficult) that he had crepitus in his knees, hips, and lower back. He was assessed with degenerative joint disease of the spine. A June 2004 VA treatment record included that the Veteran had degenerative joint disease of the right hip, right shoulder, low back, and cervicalgia as related to a motor vehicle accident in 1961. A September 2014 Marshall Medical Center emergency department record included that the Veteran had a moderate degree of low back pain, with onset the day prior. He denied an injury. X-rays showed mild degenerative changes. A September 2014 follow-up treatment record from Lakeside Clinic included the Veteran’s reported of back pain for “years” but that his unbearable pain began the day before. “The onset of the back pain was gradual and began without a clear precipitating event.” He was assessed with left sciatica. An October 2014 MRI included findings of lumbar intervertebral disc disease. The Board will remand for an addendum opinion. The 2015 examiner’s opinion addressed whether the Veteran’s lumbar strain was due to a fall and injury in 2011/2014 but did not include an opinion as to: 1) whether the Veteran’s in-service motor vehicle accident may have resulted in his current lumbar spine disorders, and 2) whether his service-connected residuals of a right hip and fracture disabilities may have otherwise caused or aggravated his lumbar spine disorders. A January 2003 VA examination noted that the Veteran was “receiving SSA.” It is unclear from the record if “receiving SSA” referred to SSA disability benefits or retirement income. As the claim is being remanded, the RO should attempt to obtain any SSA disability benefits records, if available. 2. Entitlement to a compensable rating for residuals of fracture of the bilateral maxilla and fracture of the right condyle of the mandible are remanded. During his May 2019 Board hearing, the Veteran testified that the residuals of his fractured maxilla and right mandible had worsened since his last VA examination in 2015. He stated that he was “continually grinding” his teeth, which caused pain. His representative noted that it was “kind of like lockjaw” or TMJ (temporomandibular joint dysfunction). He stated he was not receiving any treatment for his jaw condition, but that when he took Gabapentin at night he was able to relax his jaw. He was unsure if he had nerve damage to his mouth. He stated that due to the pain in his jaw he mostly ate “soft food.” He noted that he would “love to have a steak” but that he needed softer foods. On remand, the Veteran should be afforded an updated VA examination given his report of worsening symptoms since his 2015 examination. 3. Entitlement to compensable ratings for residuals of a fractured right hip and pelvis (limitation of extension and flexion) are remanded. During his May 2019 Board hearing, the Veteran testified that the residuals of his fractured right hip and pelvis (flexion and extension) had worsened since his last VA examination in 2015. He was receiving treatment for his hip with Dr. B. at the Gadsden Clinic (Birmingham), recently replaced by Dr. M., and Dr. R. at Guntersville Lakeside Clinic. He stated he saw his doctor about every six months. He also reported he had undergone physical therapy three months prior. He stated that his symptoms were “pain,” and his representative asked “numbness, tingling, throbbing?” and he answered “yes.” He also reported instability in the hip. On remand, the Veteran should be afforded an updated VA hip and pelvis examination. Additionally, ongoing VA treatment records should be obtained, and the Veteran should be asked to provide releases for private treatment records from Guntersville Lakeside Clinic and any private physical therapy providers. 4. Entitlement to total disability based on individual unemployability is remanded. The Veteran should be asked to complete a formal TDIU claim, which will provide VA with details on his education and work history. His claim of TDIU is intertwined with his increased rating claims being remanded for additional development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain the Veteran’s SSA disability benefits records, if available. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for Lakeside Clinic in Guntersville, Alabama, and for any private physical therapy providers. Make two requests for the authorized records from each provider, unless it is clear after the first request that a second request would be futile. 3. Provide the Veteran with VA Form 21-8940 and request he provide details regarding his employment and educational history. 4. Ongoing VA treatment records, from August 2016 onward, should be associated with the electronic record. 5. Return the claims file to the April 2015 spine examiner, if available, for an addendum opinion. After a review of the record, the examiner should provide the following: (a.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s lumbar spine strain/arthritis began during or is otherwise due to his military service? This opinion should include addressing the Veteran’s in-service motor vehicle accident. (b.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s lumbar spine strain/arthritis is due to or caused by his service-connected residuals of right hip and pelvis fractures? 1. whether the Veteran’s lumbar spine strain/arthritis is due to a fall(s) 2. whether the Veteran’s lumbar spine strain/arthritis is due to his limited range of motion of his right hip. (c.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s residuals of a right hip and pelvis fracture has aggravated his lumbar spine strain/arthritis? If yes, the examiner should cite a treatment record of the Veteran’s baseline severity of his lumbar spine strain/arthritis prior to aggravation. A complete explanation must accompany each opinion provided. 6. Schedule the Veteran for a VA examination to determine the current severity of his maxilla and mandible disabilities. The examiner must address the Veteran’s contentions of teeth grinding, TMJ, “lockjaw,” an inability to eat foods that require more chewing (e.g. steak), and to evaluate whether the Veteran has any nerve damage to his mouth. 7. Schedule the Veteran for an examination of the current severity of his residuals of right hip and pelvis fracture (limitation of flexion and extension). 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 his right hip and pelvis disabilities alone and discuss the effect of the Veteran’s right hip and pelvis 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 based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 8. After completing the development requested above, readjudicate the Veteran’s claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.H. Stubbs, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.