Citation Nr: 21074327 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-21 694 DATE: December 14, 2021 ORDER Entitlement to service connection for temporomandibular joint dysfunction (TMJ) is withdrawn. REMANDED Entitlement to service connection for cervical spine condition, claimed as bulging disc, to include secondary to service-connected conditions is remanded. Entitlement to service connection for right shoulder strain, to include secondary to cervical spine condition and/or service-connected conditions is remanded. Entitlement to service connection for migraines, secondary to cervical spine condition is remanded. FINDING OF FACT On June 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for entitlement to service connection for TMJ is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1992 to October 1992 and March 1995 to June 2000. 1. Entitlement to service connection for TMJ 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, the Veteran withdrew the appeal for entitlement to service connection for TMJ in a statement dated July 2019 and, hence, 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. REASONS FOR REMAND 1. Entitlement to service connection for cervical spine condition and right shoulder strain, to include secondary to service-connected conditions The Veteran raised the issue of secondary service connection. As the Veteran contends that his cervical spine condition is secondary to his service-connected conditions and his right shoulder condition is secondary to his cervical spine condition and/or service-connected conditions, a remand is necessary to obtain medical opinions addressing secondary service connection. Additionally, there is conflicting evidence as to whether the Veteran has a current diagnosis related to the right shoulder. While the July 2013 VA examiner found a diagnosis of right shoulder strain with reduced range of motion, the July 2018 examiner found no diagnosis. Given the conflicting findings, a remand is warranted to obtain clarification. 2. Entitlement to service connection for migraines, to include secondary to cervical spine condition The Veteran's entitlement to service connection for migraines is inextricably intertwined with the entitlement to service connection for cervical spine condition claim on appeal. Therefore, the Board finds that the claim for service connection for migraines must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Identify all cervical spine conditions present during the period on appeal. For each identified condition answer the following: (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's cervical spine condition(s) is related to active service or is caused by or aggravated by military service, to include due to physical training and/or heavy lifting. (c.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that any cervical spine condition is proximately due to or the result of the Veteran's service-connected conditions, to include lumbar strain, left scapular myofascial syndrome, left hip myofascial syndrome, bilateral knee condition, or neuropathy of the left little finger? (d.) If the answer to (c) is negative, is it at least as likely as not that any cervical spine condition is aggravated (i.e., permanently, or temporarily worsened) by a service-connected condition? (d.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner should address any lay statements of record. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Clarify whether the Veteran has a current diagnosis related to his right shoulder. If no diagnosis is found, the examiner should include an explanation for his or her findings. The examiner should address the July 2013 VA examination that reported a diagnosis of right shoulder strain and whether the Veteran's pain reaches a level of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) ("pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69.) (b.) For any diagnosed conditions, is it at least as likely as not (a 50 percent or greater probability) that any right shoulder condition is related to active service or is caused by or aggravated by military service. (c.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that any right shoulder condition is proximately due to or the result of any cervical spine condition(s) or the Veteran's service-connected conditions, to include lumbar strain, left scapular myofascial syndrome, left hip myofascial syndrome, bilateral knee condition, or neuropathy of the left little finger? (d.) If the answer to (c) is negative, is it at least as likely as not that any right shoulder condition is aggravated (i.e., permanently, or temporarily worsened) by any cervical spine condition(s) or the Veteran's service-connected conditions, to include lumbar strain, left scapular myofascial syndrome, left hip myofascial syndrome, bilateral knee condition, or neuropathy of the left little finger? (e.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner should address any lay statements of record. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Upon completion of the above directives, complete any other necessary development after review of any additionally received records, to include additional VA examinations if warranted. 6. Finally, readjudicate the appeal. If the service connection sought for cervical spine condition, right shoulder condition and migraines remains denied, issue a supplemental statement of the case, and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.