Citation Nr: 21076711 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-14 124 DATE: December 27, 2021 ORDER Entitlement to a compensable rating for hypertension is dismissed. Entitlement to service connection for right knee degenerative arthritis is granted. Entitlement to service connection for intervertebral disc syndrome (IVDS) of the cervical spine with degenerative arthritis is granted. Entitlement to service connection for left upper extremity radiculopathy is granted. Entitlement to service connection for major depressive disorder is granted. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a left shoulder disorder other than left upper extremity radiculopathy is remanded. Entitlement to service connection for a left foot disorder other than pes planus with plantar fasciitis and left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. At the December 2, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the appellant requested to withdraw his appeal as to the issue of entitlement to a compensable rating for hypertension. 2. Veteran has left knee degenerative arthritis which manifested during service. 3. The Veteran has IVDS of the cervical spine with degenerative arthritis which is related to an in-service injury. 4. The Veteran has left upper extremity radiculopathy which is caused by IVDS of the cervical spine. 5. The Veteran has major depressive disorder which is caused by his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to a compensable rating for hypertension by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205 2. The criteria for service connection for right knee degenerative arthritis are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. 3. The criteria for service connection for IVDS of the cervical spine with degenerative arthritis is are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for left upper extremity radiculopathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a major depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to July 2000. These matters are before the Board of Veterans' Appeals (Board) on appeal of a March 2018 rating decision Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at December 2021 video hearing with the undersigned Veterans Law Judge. This decision is being made under the "one-touch" program as all issues are granted in full or remanded for additional development. A transcript of the hearing will be associated with the claims file at a later time. In November 2021 the Agency of Original Jurisdiction (AOJ) proposed to sever entitlement to service connection for bilateral pes planus and plantar fasciitis and bilateral hip sacroiliac joint dysfunction on the basis that the claims were currently on appeal before the Board. However, given that the benefits sought on appeal were granted in full, the Board no longer has jurisdiction to adjudicate the appeals with respect to those issues. While the Board does not have jurisdiction over the November 2021 proposal to sever service connection, the AOJ is hereby notified that the proposed basis for severance of service connection is in error. The Board notes that the service treatment records contain a July 19, 1995 German untranslated document. As the Board is granting or remanding all claims in the present appeal, no due process error results from proceeding at this time. The appeal of the issue of entitlement to a compensable rating for hypertension is dismissed. 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. § 20.205. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.205. At the December 2, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, informed the Board that he wished to withdraw his appeal as to the issue of entitlement to a compensable rating for hypertension. 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. § 20.205. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.205. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. 38 C.F.R. §§ 20.205(b)(1). Here, at the December 2, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, explicitly and unambiguously informed the Board that he wished to withdraw his appeal as to this specific issue. The undersigned explained the consequences of such action and the Veteran and his representative expressed understanding and continued desire to withdraw the appeal. The Board finds that criteria for an oral withdrawal are met and this issue is dismissed. Entitlement to service connection for right knee arthritis is granted. The Veteran contends that he has a right knee disorder which was incurred during active-duty service. Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran's service treatment records are significant for an August 9, 1993 right leg injury with pain after knee range of motion. On VA examination in February 2018 the Veteran was diagnosed with right knee degenerative arthritis, but the examiner opined that the disorder was less likely than not (less than 50 percent probability) related to an in-service knee injury. At his December 2021 hearing, the Veteran presented evidence which establishes that symptoms sufficient to identify right knee arthritis manifested during active-duty service. As the evidence of record is at least in equipoise as to whether right knee degenerative arthritis manifested in service, service connection for right knee arthritis is granted on a presumptive basis. Entitlement to service connection for IVDS of the cervical spine with degenerative arthritis and left upper extremity radiculopathy is granted. The Veteran contends that he has a neck disorder which is related to in-service neck injuries. The service treatment records are significant for complaints of neck pain in October 1995 assessed as mechanical pain syndrome, and a complaint of a stiff neck in July 1998. In February 2018 a VA examiner diagnosed the Veteran with cervical degenerative arthritis but opined that the disorder was less likely than not related to an in-service injury. A March 2019 private treatment record noted a complaint of chronic neck pain with radiation to the left shoulder blade, chest, forearm and ulnar aspect of the hand. In June 2021 a VA examiner diagnosed the Veteran with cervical degenerative arthritis and IVDS. The examiner opined that the diagnosed neck disorders were related to the in-service complaints, noting that there was evidence of chronicity since service. Additionally, the examiner diagnosed left upper extremity radiculopathy which was likely caused by IVDS. As discussed further in the Reasons for Remand section below, the Veteran contends that a left shoulder disorder is related to his active-duty service. The Veteran's claim is not limited to specifically to a left shoulder musculoskeletal disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that when a veteran files a claim he or she is not seeking benefits only for a particular diagnosis, but for the affliction his condition, whatever that is, causes him or her). Pursuant to Clemons, the Board interprets the claim to include the issue of a left upper extremity radiculopathy which is raised by the record as manifested by radiating pain to the left shoulder. See March 2019 private treatment record. Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310 (a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310 (b). As the competent evidence of record is at least in equipoise, service connection for IVDS of the cervical spine with degenerative arthritis is granted. Additionally, as the competent evidence indicates that the Veteran has left upper extremity radiculopathy, which was caused by the cervical IVDS, service connected is granted for that disorder as secondary to IVDS of the cervical spine with degenerative arthritis. Entitlement to service connection for major depressive disorder is granted. The Veteran contends that he has an acquired psychiatric disorder which is related to service or a service-connected disorder. On VA examination in August 2021 the Veteran was diagnosed with major depressive disorder, but the examiner did not provide an opinion as to the etiology of that disorder, though the examiner noted the Veteran's belief that the disorder was related to chronic pain. A September 2021 VA treatment record noted that the Veteran had a "mood disorder due to a known physiological condition with depressive features (back condition and chronic pain)." The Veteran is service connected for degenerative arthritis of the thoracolumbar spine with IVDS. The foregoing evidence is at least in equipoise as to whether the Veteran has a major depressive disorder which is related to his service-connected disabilities, to include degenerative arthritis of the thoracolumbar spine with IVDS. Accordingly, service connection for major depressive disorder is granted. REASONS FOR REMAND Entitlement to service connection for a left knee disorder is remanded. On VA examination in February 2018, the examiner did not provide a specific diagnosis for the left knee. However, while imaging studies were conducted for the right knee, they were not conducted for the left knee and no explanation for this discrepancy was provided. Remand is required to obtain a new VA examination to include conducting any necessary diagnostic procedures to ascertain the nature of a current left knee disability. Entitlement to service connection for a right shoulder disorder and left shoulder disorder other than left upper extremity radiculopathy is remanded. The Veteran has not been provided with a VA examination to consider the nature and etiology of his claimed right and left shoulder disorders. The evidence of record, to include the December 2021 hearing testimony establishes that the Veteran has symptoms of current right and left shoulder disorders which may be related to an in-service injury or illness. Accordingly, remand is required to obtain a medical examination addressing these issues. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) Entitlement to service connection for a left foot disorder other than pes planus with plantar fasciitis and left lower extremity radiculopathy is remanded. March 1990 service treatment records reveal a left foot injury while playing basketball. The Veteran is already service connected for bilateral pes planus, plantar fasciitis and lower extremity radiculopathy. A June 2021 VA examiner did not state whether there was any additional diagnosis specific to the left foot. The December 2021 hearing testimony indicates additional left foot symptoms which may not be contemplated by the currently service-connected foot disabilities. Remand is required to obtain a medical examination to specifically address this issue. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee disorder. Appropriate diagnostic studies must be conducted to include as appropriate, left knee x-rays. The examiner should state: a. What diagnosed left knee disorders have been present at any time since November 29, 2017? b. For each such left knee disorder: is it at least as likely as not related to an illness, event, or injury in service? 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of right and left shoulder disorders other than left upper extremity radiculopathy. The examiner should state: a. What diagnosed right and left shoulder disorders other than left upper extremity radiculopathy have been present at any time since November 29, 2017? b. For each such right and left shoulder disorder: is it at least as likely as not related to an illness, event, or injury in service? 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a left foot disorder other than pes planus with plantar fasciitis and left lower extremity radiculopathy. The examiner should state: a. What diagnosed left foot disorders have been present at any time since November 29, 2017? (Continued on the next page) b. For each such left foot disorder: is it at least as likely as not related to an illness, event, or injury in service, to include the March 1990 injury? LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.