Citation Nr: 21010521 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-50 746 DATE: February 25, 2021 ORDER The claim of entitlement to service connection for diabetes mellitus is dismissed. The claim for entitlement to a rating in excess of 30 percent for status post trauma of the left eye with surgical aphakia and corneal scar is dismissed. The claim for entitlement to a rating in excess of 20 percent for status post Mumford procedure of the left shoulder is dismissed. REMANDED The claim of entitlement to service connection for chronic adjustment disorder with depressed mood, to include as secondary to his service-connected disabilities, is remanded. The claim of entitlement to service connection for a low back condition is remanded. The claim of entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT At a hearing in November 2020, the Veteran’s attorney withdrew from appeal the issues of entitlement to service connection for diabetes mellitus, entitlement to a rating in excess of 30 percent for status post trauma of the left eye with surgical aphakia and corneal scar and entitlement to a rating in excess of 20 percent for status post Mumford procedure of the left shoulder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal on the issue of entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal on the issue of entitlement to entitlement to a rating in excess of 30 percent for status post trauma of the left eye with surgical aphakia and corneal scar have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal on the issue of entitlement to entitlement to a rating in excess of 20 percent for status post Mumford procedure of the left shoulder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1973 to November 1978 and from December 1979 to September 1994. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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. Id. At a hearing in November 2020, the Veteran’s attorney withdrew from appeal the issues of entitlement to service connection for diabetes mellitus, entitlement to a rating in excess of 30 percent for status post trauma of the left eye with surgical aphakia and corneal scar and entitlement to a rating in excess of 20 percent for status post Mumford procedure of the left shoulder. Hence, there remain no allegations of errors of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues which are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for chronic adjustment disorder with depressed mood, to include as secondary to his service-connected disabilities is remanded. The Veteran seeks entitlement to service connection for chronic adjustment disorder with depressed mood, as secondary to his service-connected disabilities. Service connection may be established on a secondary basis 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). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran’s nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. The Veteran was afforded a VA examination in August 2014. The examiner opined that it is less likely than not that his adjustment disorder with depressed mood is caused by his service-connected disabilities. The examiner reasoned that adjustment disorder with depressed mood is “multifactorial in etiology and cannot be attributed to any of his service-connected disabilities solely.” However, no rationale was provided as to the etiology of his psychiatric diagnosis. Additionally, the examiner did not address whether his adjustment disorder was aggravated by his service-connected disabilities. A medical opinion regarding secondary service connection must address both causation and aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b).). Therefore, the Veteran should be afforded another VA examination. 2. Entitlement to service connection for a low back condition is remanded. The Veteran was afforded a VA examination in August 2014. The examiner opined that it is less likely than not his low back condition is due to service. In the rationale, the examiner stated the following: “[t]here is no objective evidence for chronicity of the low back strain that the veteran was treated for in 1970.” However, the Veteran was not a servicemember until 1973. Additionally, the examiner did not consider the Veteran’s January 1995 medical examination, where the examiner stated that the Veteran had “low back sprains with the slightest activity.” The Board finds the August 2014 opinion inadequate and of little probative value because the examination is not based on accurate, factual premises. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). As the Board cannot rely on the factually inaccurate opinion, a remand is necessary for a new examination. 3. Entitlement to TDIU is remanded. The Board finds that the Veteran’s claim for TDIU is inextricably intertwined with his service connection claims for chronic adjustment disorder with depressed mood and a low back condition. The remanded service connection claims could affect whether the Veteran meets the schedular criteria for TDIU, as he currently does not satisfy the schedular criteria. Thus, a remand is also warranted for the TDIU claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain updated medical records, including private and VA treatment records, and associate them with the claims file. Conduct a search for any paper or electronic records of a reported VA hospitalization in Orlando in 1978. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the whether his chronic adjustment order with depressed mood is related to service and/or proximately due to service-connected disability. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s chronic adjustment disorder with depressed mood began in service, was caused by service, or is otherwise related to service. Additionally, the examiner must opine whether it is at least as likely as not that his chronic adjustment disorder with depressed mood is (1) caused by his service-connected disabilities, OR (2) that his service-connected disabilities results in any additional functional impairment associated with his chronic adjustment disorder with depressed mood disorder (e.g., a medically discernible increase in frequency, duration and/or severity, even if temporary, above the degree associated with that expected from his baseline acquired psychiatric disorder). In doing so, the examiner should consider the Veteran’s service treatment records and post-service treatment records. Specifically, the examiner should consider the Veteran’s May 2004 VA treatment record regarding the possible onset of his psychiatric condition, a June 2014 VA examination report stating that the Veteran’s current depressed mood and irritability was associated with current medical problems and recovery from service with associated pain, and the August 2014 VA examination report wherein the Veteran described the Veteran’s acquired psychiatric disorder and multifactorial in nature and not attributable “solely” to service-connected disabilities. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of his low back condition. The examiner must opine whether it is at least as likely as not that the Veteran’s low back condition began in service, was caused by service, or is otherwise related to service. In doing so, the examiner should consider the Veteran’s service treatment records for back pain and post-service treatment records. Specifically, the examiner should consider the December 1994 service connection application reporting lower back pain, the January 1995 VA examination where the Veteran reported “low back sprains with the slightest activity,” and his report of back pain in a July 2003 statement. The examiner is specifically requested to address whether there is any medical reason to accept or reject the Veteran’s belief that he has manifested a chronic low back disability since service in light of his 1995 documented report of “low back sprains with the slightest activity.” The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion. 4. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and allow an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adeleke, 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.