Citation Nr: 21010719 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-66 052 DATE: February 25, 2021 ORDER A compensable rating for a right eye chalazion is denied. The issue of service connection for a left shoulder disability is dismissed. The issue of service connection for bilateral carpal tunnel syndrome is dismissed. The issue of service connection for type II diabetes is dismissed. The issue of service connection for erectile dysfunction is dismissed Service connection for a right shoulder disability is granted. REMANDED The issue of a rating in excess of 10 percent for a right knee disability is remanded. The issue of a rating in excess of 20 percent for a low back disability is remanded. The issue of service connection for hypertension is remanded. The issue of a total disability evaluation based on individual unemployability is remanded. FINDINGS OF FACT 1. The Veteran’s right eye chalazion has not manifest in visual impairment or disfigurement. 2. On September 16, 2020, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claims for service connection for erectile dysfunction, type II diabetes, left shoulder disability, and bilateral carpal tunnel syndrome. 3. The Veteran’s right shoulder disability is related to service. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right eye chalazion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.79, DC 6015. 2. The criteria for dismissal of entitlement to service connection for a left shoulder disability, type II diabetes, erectile dysfunction, and bilateral carpal tunnel syndrome have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria to establish service connection for a right shoulder disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to August 1994. These matters are on appeal to the Board of Veterans’ Appeals (Board) from a February 2017 rating decision. A hearing was held by the undersigned Veterans Law Judge in September 2020. 1. Entitlement to a compensable rating for a right eye chalazion The Veteran’s vision disorder is currently assigned a 0 percent rating based on a diagnosed disability with no compensable symptoms. He filed his non-initial increased rating claim on September 7, 2016. Chalazion is not specifically listed under the rating criteria; however, Diagnostic Code (DC) 6015 provides for benign neoplasms (or tumors) of the eye, orbit, and adnexa (excluding skin). The Merriam-Webster dictionary defines chalazion as “a small circumscribed tumor of the eyelid”. Merriam-Webster.com Medical Dictionary, Merriam-Webster, https://www.merriam-webster.com/medical/chalazion. Accessed 16 Feb. 2021. Thus, the Board finds DC 6015 to be the most appropriate for the Veteran’s service-connected disability. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. The amendment altered the scope of disability specifically addressed. Under the former criteria, DC 6015 addressed benign neoplasms of the eyeball and adnexa. Under the revised criteria, DC 6015 addresses benign neoplasms of the eye, orbit and adnexa (excluding skin). There were no other substantive changes. Both the former and revised criteria instruct to separately evaluate visual and nonvisual impairment, e.g., disfigurement (DC 7800), and combine evaluations. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75 (a). In the Veteran’s January 2017 VA examination, the only diagnosis listed was acute anterior uveitis. The examiner noted that the uveitis has since resolved, caused no visual impairment, and was not a service-related disorder. No visual impairment was indicated on examination, and no scarring or disfigurement was noted. During his September 2020 hearing, the Veteran testified that his eye is not a problem anymore. He stated his eye symptoms recur intermittently, possibly once a year, but he obtains treatment and it resolves. The treatment records do not reflect treatment or diagnosis of a chalazion, nor do they reflect visual impairment or disfigurement. While medical records indicate sporadic treatment for uveitis, the last occurrence in June 2016 and as explained by the VA examiner, the uveitis is unrelated to his service-connected chalazion. As there is no indication of visual impairment or other symptomatology throughout the record that would warrant a compensable rating, the preponderance of the evidence is against the claim and the appeal must be denied. 2. Entitlement to service connection for a left shoulder disability, bilateral carpal tunnel syndrome, type II diabetes, and erectile dysfunction In his September 2020 hearing, the Veteran clearly and unambiguously stated he was withdrawing the above-listed claims. The Veteran, accompanied by representation, was informed that if he withdrew his appeal, the Board would not decide the issues, and, should he choose to pursue the claims again, he would need to file new claims. The Veteran verbally indicated he understood and wished to proceed with the withdrawal. Thus, the claims were not addressed at the hearing. The Board finds that the Veteran withdrew his issues at the September 2020 hearing. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (an oral withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant). While the Board has considered the Veteran’s October 2020 correspondence indicating he no longer wished the issues to be withdrawn, the issues had been withdrawn at the time of the correspondence. As previously informed, the Veteran would need to file new claims in order to again pursue the benefits. The Veteran’s claims for service connection for the above-listed claims are dismissed. 3. Entitlement to service connection for a right shoulder disability The Veteran contends he has experienced right shoulder pain since he was a machine gunner in service. The Board will grant the claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The treatment records show a diagnosis of rotator cuff tendonitis, and a history of chronic right shoulder pain since he began receiving VA treatment in 2009. A January 1999 medical record indicates a complaint of right subacromial bursitis. An August 2009 VA treatment record reflects “shoulder pain most likely secondary to degenerative joint disease and/or impingement syndrome.” A private opinion was submitted by Dr. S. Dr. S reviewed the medical records, VA records, and interviewed the Veteran. Dr. S explained that the Veteran’s military occupation specialty was a machine gunner, which tasked him with carrying significant amounts of weight and withstanding significant amounts of recoil when firing the weapon. The physician explained that rotator cuff tears often occur over time from prolonged wear and tear or due to an acute tear from heavy lifting. The physician also noted that chronic repetitive loading of the shoulder complex leads to capsular strain, occult instability, and persistent pain, and can ultimately lead to rotator cuff disease. He further explained that degenerative conditions can develop gradually years after trauma. In considering the Veteran’s circumstances, he was required regularly to lift, carry, and fire a heavy machine gun which had significant recoil, causing excessive strain on his shoulder. According to the Veteran, he has experienced chronic shoulder pain since service but only began receiving treatment when he sought VA treatment in 2009. Given that he was constantly exposed to repeated shoulder trauma, Dr. S opined that it is at least as likely as not that his right rotator cuff tear is service connected. This opinion is highly probative as it is based on a thorough review of the record and provides a detailed explanation of his opinion while citing to medical literature for support. The evidence reflects chronic right shoulder pain for many years prior to his diagnosis via magnetic resonance imaging (MRI). Dr. S provided a thorough anatomical explanation for the strain put on his shoulder joint while carrying out his service duties leading to his current disability. As there is no contradictory evidence of record, the Board finds that the elements of service connection have been met and the Veteran’s claim is granted. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 10 percent for a right knee disability 2. Entitlement to an increased rating in excess of 20 percent for a low back disability 3. Entitlement to service connection for hypertension 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU). The matters are not ready for appellate review and are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: Right knee disorder increased rating: During his hearing, the Veteran testified that his knee has become unstable over the past three years and gives out at times. He is unable to use stairs and is unable to walk 100 yards without pain. He last had a VA examination December 2016. In that examination, knee instability was not indicated. However, while the Veteran did not report flare-ups at that time, he was not examined after repetitive use over time, and the examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability in those circumstances without mere speculation. Thus, this examination failed to comply with the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26 (2017), and a new examination is required. Low back disorder increased rating: The Veteran last underwent a VA examination in December 2016. He did not report flare-ups at the time of examination, and he was not examined after repetitive use over time. The examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability in those circumstances without mere speculation. Thus, this examination failed to comply with the requirements set forth in Sharp, 29 Vet. App. 26. During his hearing, the Veteran alleged both flare-ups and diminished functional capacity. These factors necessitate a new examination. Service connection for hypertension: The Veteran has submitted a relevant medical opinion by Dr. S. As noted in the directives below, given this opinion, additional development is necessary. THE REMAND DIRECTIVES FOLLOW. 2. Obtain VA examinations to determine the current severity of the Veteran’s right knee and low back disabilities. The examiner must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. If this testing cannot be done, the examiner should clearly explain why this is so. The examiner should also note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. The examiner must also comment on or describe, to the extent possible, the impact the Veteran’s knee and low back disabilities have on his functioning during flare-ups or with repeated use over a period of time. In doing so, the examiner MUST elicit from the Veteran subjective reports of his functioning under such conditions and consider such reports along with all other pertinent evidence. If the examiner is still unable to provide such an opinion, he or she MUST explain why that is so in specificity. The examiner should note that the inability to directly observe functioning under such conditions IS NOT a valid reason to avoid providing an opinion in this matter per se. 3. Obtain a VA examination to determine whether the Veteran’s hypertension is caused or aggravated by his service-connected back or right knee disabilities on a theory of obesity as an intermediary step. The EXAMINER IS ADVISED THAT the Veteran claims his currently diagnosed hypertension is secondary to his orthopedic disabilities in that his service-connected knee and back disabilities rendered him unable to exercise, resulting in obesity, which, in turn, resulted in hypertension. In other words, but for the sedentary lifestyle caused by the Veteran’s severe back and knee pain, he would not be obese and would not have hypertension. VA’s Office of General Counsel has held that a claim for secondary service connection may rest on obesity as an intermediary between the claimed secondary disability and the service-connected primary disability. See VAOPGCPREC 1-2017. A separate claim of service connection for obesity is pending. The treatment records show a current diagnosis of hypertension since 2009. Regarding relation to the Veteran’s service-connected disabilities, non-VA physician Dr. S reported that he reviewed medical records, VA records, and interviewed the Veteran. He noted the Veteran was diagnosed with hypertension in 2009. In addition to pharmacologic intervention, it was recommended that he lose weight; however, the Veteran has been unable to do so. He stated that due to the Veteran’s ongoing back and knee discomfort, he has been unable to engage in significant physical activity due solely to the pain he experiences, which has caused a gradual and consistent weight gain. Dr. S explained it is well settled that hypertension is one of the main illnesses associated with obesity. He also explained that a decreased ability to exercise and chronic pain causes weight gain. In considering the Veteran’s individual circumstances, there are numerous references to his continued pain throughout the record. Dr. S concluded that given that the Veteran developed obesity as a result of his service-connected orthopedic conditions, it is at least as likely as not that the Veteran’s hypertension is service-connected. The examiner is requested to consider and opine (1) whether the service-connected back and/or knee disabilities caused the Veteran to become obese/aggravated the Veteran’s obesity; (2) if so, whether the obesity/aggravation of obesity as a result of the service-connected disability was a substantial factor in causing the current hypertension; and (3) whether the hypertension would not have occurred but for obesity caused/obesity aggravated by the service-connected right knee or low back. In reaching a conclusion, the examiner is asked to review the medical records, address any relevant evidence, and provide a thorough rationale for his or her opinion. In that regard, the examiner is asked to address the significance, if any, to the notations of the Veteran’s poor nutrition and alcohol abuse as it relates to obesity. Following the development outlined above, the RO will readjudicate the claims, including a claim of TDIU, and follow all other appellate procedures. VITO A. CLEMENTI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.