Citation Nr: A21020115 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 201027-117514 DATE: December 16, 2021 ORDER The appeal for the claim to service connection for a right eye condition has been withdrawn. Entitlement to service connection for intervertebral disc degeneration of the lumbar spine is granted. REMANDED Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for left shoulder condition is remanded. Entitlement to service connection for right shoulder condition is remanded. FINDINGS OF FACT 1. The Veteran withdrew his claim for service connection for a right eye condition during the March 2021 Board hearing. 2. The preponderance of the evidence shows intervertebral disc degeneration of the lumbar spine is caused by active-duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of service connection for right eye condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for intervertebral disc degeneration of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to August 1983 and October 1984 to March 1985. He has periods of active duty for training (ACDUTRA) and inactivity duty for training (INACDUTRA). The Veteran contends that his disabilities on appeal began while he was enlisted in the United States Navy. On August 23, 2017, the President signed into law the Veteran's Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA) decision on their claim to seek review. In a December 2019 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for right eye condition, service intervertebral disc degeneration of the lumbar spine, service connection for a left and right hip condition as secondary to lower back condition, and service connection for left and right shoulder condition. The Veteran filed a Form 10182 Notice of Disagreement (NOD) under the AMA Board Hearing docket in October 2020. A virtual Board hearing was held in March 2021 with the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. 1. Service connection for right eye condition is withdrawn. The Veteran notified the undersigned Veterans Law Judge he wished to formally withdraw his claim for a right eye condition. He confirmed that by withdrawing his claim the issue is no longer on appeal before the Board. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204(c). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and meet certain requirements set forth by regulation. They must include the name of the appellant, the applicable file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.204(b)(1). The Board accordingly finds that the Veteran's request to withdraw the claim for a right eye condition qualifies as a valid withdrawal. See 38 C.F.R. § 20.204. Accordingly, there remain no allegations of error of fact or law for appellate consideration as to that issue and it is dismissed. 2. Service connection for intervertebral disc degeneration of the lumbar spine is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for arthritis). 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The Veteran has intervertebral disc degeneration of the lumbar spine. The Veteran's DD 214 indicates he was an aviation structural mechanic during active service. During the March 2021 Board hearing, the Veteran testified he experienced back pain while performing his duties, including carrying chains weighing approximately 80 lbs. while bent over, loading and unloading metal boxes, and working on cement floors and metal carrier decks. Shedden elements (1) and (2) are met. Turning to element (3), a nexus, the Veteran submitted a private medical opinion indicating his spinal disability was caused by injuries during active service. Specifically, Dr. N.P., BA, DC opined that the injuries the Veteran sustained during service while lifting heavy loads, carrying 80 lbs. chains while bent over, and movements such as reaching while lifting, stressful activities, repetitive lifting of awkward items, twisting while lifting, bending while lifting, maintaining a bent posture, heavy lifting, fatigue, poor footing, and lifting with forceful movement exceeded the capability of the muscles, tendons, and lumbar discs resulted in posttraumatic osteoarthritis. See Medical Report at 9 (received March 15, 2021). In support of her findings, the Dr. N.P. reviewed the Veteran's medical records, conducted a clinical interview, and cited peer reviewed medical articles. The Board assigns significant probative weight to Dr. N.P.'s finding. As such, service connection for intervertebral disc degeneration of the lumbar spine is warranted. REASONS FOR REMAND The claims of service connection for left hip condition as secondary to lower back condition; service connection for right hip condition as secondary to lower back condition; service connection for left shoulder condition; and service connection for right shoulder condition are remanded. The Board must remand AMA appeals to the AOJ to correct pre-decisional duty to assist errors. See VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 189-90 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.802 (a)). Given the evidence of record, the Board finds that an examination is necessary to clarify the nature and etiology of any current bilateral shoulder and/or hip disabilities. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary when the record contains an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in service but does not contain sufficient medical evidence for the Secretary to make a decision on the claim). The United States Court of Appeals for the Federal Circuit held that for the "current disability" element of service connection, "pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018). Rather, "[t]o establish the presence of a disability, a veteran will need to show that [their] pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. This definition of "disability" does not "require that pain must affect some aspect of the normal working movements of the body" or that "pain must be tied to physical evidence of a lack of functionality and/or physical evidence of a current disease or injury." Id. at 1366-67. The Board acknowledges Dr. N.P.'s report stating the Veteran's bilateral hip and radiating leg pain conditions are a result of his repetitive injuries during service. However, the Board finds that there is no indication of the current diagnosis regarding the hip, as indicated by Dr. N.P., and the opiner did not actually examine the Veteran. The Board additionally notes that indications of functional loss do not necessarily equate to functional impairment of earning capacity. Id. Thus, the Veteran should be afforded an examination on remand. Additionally, the Board notes that the Veteran's claim for entitlement to service connection for shoulder disabilities was denied due to lack of current diagnosis. However, there is no indication if his bilateral shoulder disabilities equate to functional impairment of earning capacity per Saunders. Thus, the Veteran should be afforded an examination on remand. For these reasons, remand under AMA is appropriate to correct a duty to assist error that occurred prior to the rating decision on appeal. The Board notes that the Veteran is being service connected for a back disability herein; thus, any DTA regarding the claims of secondary service connection would not be pre-decisional in nature. The matters are REMANDED for the following action: Schedule the Veteran for an in-person examination for his claims of (1) service connection for left hip condition; (2) service connection for right hip condition; (3) service connection for left shoulder condition; and (4) service connection for right shoulder condition. The examiner must review the claims file and indicate that all lay statements have been considered in reaching their conclusions. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment of earning capacity consistent with the relevant diagnostic codes, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a.) Is any identified left hip disability at least as likely as not related to service? (b.) Is any identified right hip disability at least as likely as not related to service? (c.) Is any identified left shoulder disability at least as likely as not related to service? (d.) Is any identified right shoulder disability at least as likely as not related to service? Provide a rationale to support the opinion(s). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, Associate 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.