Citation Nr: 21013489 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-58 046 DATE: March 9, 2021 ORDER The appeal seeking entitlement to a disability rating in excess of 10 percent for eye movement spasms and photophobia due to TBI (also claimed as sensitivity to light, nystagmus, and convergence palsy) is dismissed. The appeal seeking entitlement to a disability rating in excess of 10 percent for cervical spine degenerative disc disease with cervical strain (previously rated as cervical strain) is dismissed. The appeal seeking entitlement to service connection for right bicep muscle strain is dismissed. The appeal seeking entitlement to service connection for right elbow disability with weakness in the right hand is dismissed. REMANDED Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for loss of feeling of the right hand is remanded. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) (formerly diagnosed as an anxiety disorder (also claimed as insomnia)) with residuals and traumatic brain injury (TBI) is remanded. Entitlement to a disability rating in excess of 10 percent for lumbar spine degenerative joint disease status post fusion prior to February 13, 2017 is remanded. Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative joint disease status post fusion from May 1, 2017 is remanded. Entitlement to a disability rating in excess of 10 percent for migraine headaches associated with PTSD (formerly diagnosed as anxiety disorder) with residuals of TBI is remanded. Entitlement to a disability rating in excess of 10 percent prior to May 1, 2017 and 20 percent from May 1, 2017 for radiculopathy of the right leg is remanded. Entitlement to a disability rating in excess of 10 percent prior to May 1, 2017 and 40 percent from May 1, 2017 for radiculopathy of the left leg is remanded. Entitlement to a compensable disability rating for tendonitis of the right shoulder is remanded. Entitlement to a compensable disability rating for right ankle disability (also claimed as chronic right foot and ankle pain) is remanded. Entitlement to a compensable disability rating for left ear hearing loss is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative right wrist with residual decreased range of motion, status post-surgery is remanded. Entitlement to a compensable disability rating for right hip labrum tear with limitation of extension is remanded. Entitlement to a compensable disability rating for right hip labrum tear with limitation of flexion is remanded. FINDINGS OF FACT 1. On February 5, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, with his authorized representative, that a withdrawal of the appeal for entitlement to a disability rating in excess of 10 percent for eye movement spasms and photophobia due to TBI (also claimed as sensitivity to light, nystagmus, and convergence palsy); is requested. 2. On February 5, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, with his authorized representative, that a withdrawal of the appeal for entitlement to a disability rating in excess of 10 percent for cervical spine degenerative disc disease with cervical strain (previously rated as cervical strain); is requested. 3. On February 5, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, with his authorized representative, that a withdrawal of the appeal for entitlement to service connection for right bicep muscle strain; is requested. 4. On February 5, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, with his authorized representative, that a withdrawal of the appeal for entitlement to service connection for right elbow disability with weakness in the right hand; is requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal seeking entitlement to a disability rating in excess of 10 percent for eye movement spasms and photophobia due to TBI (also claimed as sensitivity to light, nystagmus, and convergence palsy) by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal seeking entitlement to a disability rating in excess of 10 percent for cervical spine degenerative disc disease with cervical strain (previously rated as cervical strain) by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal seeking entitlement to service connection for right bicep muscle strain by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal seeking entitlement to service connection for right elbow disability with weakness in the right hand by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 2007 until his honorable discharge in February 2013. During the Veteran’s service, he was awarded the Army Commendation Medal, Purple Heart, Army Achievement Medal (2nd Award), Army Good Conduct Medal, National Defense Service Medal, Afghanistan Campaign Medal with two campaign stars (2nd Award), Global War on Terrorism Service Medal, Army Service Ribbon, Overseas Service ribbon, NATO Medal, Combat Medical Badge, and Parachutist Badge. These matters come before the Board of Veterans’ Appeals (Board) on appeal from the August 6, 2013 and May 30, 2014 rating decisions by the Seattle/Tacoma, Washington Regional Office (RO) and the Honolulu, Hawaii RO of the United States Department of Veterans Affairs (VA). In February 2020, the Veteran and his spouse testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Albuquerque, New Mexico. A transcript of the hearing has been associated with the record on appeal. Withdrawn Issues 1. Entitlement to a disability rating in excess of 10 percent for eye movement spasms and photophobia due to TBI (also claimed as sensitivity to light, nystagmus, and convergence palsy) 2. Entitlement to a disability rating in excess of 10 percent for cervical spine degenerative disc disease with cervical strain (previously rated as cervical strain) 3. Entitlement to service connection for right bicep muscle strain 4. Entitlement to service connection for right elbow disability with weakness in right hand Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. 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 appellant or by his or her authorized representative. Id. In the present case, the appellant, with his authorized representative, has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Specifically, during the Veteran’s February 2020 Board hearing, the Veteran requested for the above issues to be withdrawn. Accordingly, the Board does not have jurisdiction to review the appeals of the above issues and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for right knee disability is remanded. 2. Entitlement to service connection for left knee disability is remanded. The Veteran was afforded a VA examination in August 2011. The August 2011 examiner found that the Veteran’s examination for bilateral knee disabilities produced a normal clinical evaluation. hile waiting for his VA examination, the Veteran was observed bending over and able to flex 80 degrees without difficulty or pain in the waiting room. During the examination, the Veteran was observed standing, extending his back, and twisting but was unable to do those same movements while being measured asserting that he was limited to only 15 degrees of flexion. The Veteran asserted bilateral knee pain, asserting intermittent pain approximately 10 times per day, lasting for approximately five minutes causing weakness, stiffness, swelling, instability, locking, fatigability, and lack of endurance with flare ups twice per week of approximately 30 minutes. The VA examiner found that the Veteran’s gait was normal without objective findings of pain, and there was no deformity, swelling, crepitus or instability. There was a negative McMurray’s sign and normal range of motion. Furthermore, the August 2011 VA examiner noted that with repetition, there was no additional loss of motion secondary to pain, weakness or lack of endurance. Finally, the VA examiner found that joint space height was preserved, patellofemoral joint space was intact, and the patella tracks were normal with no fractures or dislocations of the knee, and found that the Veteran’s bilateral knees were normal. At the February 2020 hearing, the Veteran testified that his knees “hurt all the time. When I’m walking, they hurt. When I stand up, they hurt. They pop. It feels like there’s something like clicking or like it’s not like how it used to be.” He contends that he has a bilateral knee disability due to his service duties as a paratrooper and medic as well as from exposure to an IED blast. The Board will afford the Veteran another VA examination and obtain a VA opinion. 3. Entitlement to service connection for loss of feeling of the right hand is remanded. The Veteran was afforded a VA examination in August 2011. The August 2011 examiner found that the Veteran’s examination for loss of feeling in the right hand produced a normal clinical evaluation. At the February 2020 hearing, the Veteran appeared to suggest a relationship between his service-connected right wrist disability and symptoms he claims to experience in his hand. The Board will afford the Veteran another VA examination and obtain a VA opinion. 4. Entitlement to a disability rating in excess of 30 percent for PTSD (formerly diagnosed as an anxiety disorder (also claimed as insomnia)) with residuals and TBI is remanded. 5. Entitlement to a disability rating in excess of 10 percent for lumbar spine degenerative joint disease status post fusion prior to February 13, 2017 is remanded. 6. Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative joint disease status post fusion from May 1, 2017 is remanded. 7. Entitlement to a disability rating in excess of 10 percent for migraine headaches associated with PTSD (formerly diagnosed as anxiety disorder) with residuals of TBI is remanded. 8. Entitlement to a higher disability rating for radiculopathy of the right leg is remanded. 9. Entitlement to a higher disability rating for radiculopathy of the left leg is remanded. 10. Entitlement to a compensable disability rating for tendonitis of the right shoulder is remanded. 11. Entitlement to a compensable disability rating for right ankle disability (also claimed as chronic right foot and ankle pain) is remanded. 12. Entitlement to a compensable disability rating for left ear hearing loss is remanded. 13. Entitlement to a disability rating in excess of 10 percent for degenerative right wrist with residual decreased range of motion, status post-surgery is remanded. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Here, during the Veteran’s February 2020 Board hearing, he testified that his symptoms for the above disabilities have worsened since his last evaluation. Therefore, remand is required. 14. Entitlement to a compensable disability rating for right hip labrum tear with limitation of extension is remanded. 15. Entitlement to a compensable disability rating for right hip labrum tear with limitation of flexion is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s right hip labrum tear with limitations of extension and flexion, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements nor pain on weight-bearing testing. Furthermore, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 26, 2017 to the present. 2. After the Veteran’s updated VA treatment records are obtained, schedule the Veteran for an examination to determine the nature and etiology of any bilateral knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including his service duties as a paratrooper and medic as well as from exposure to an IED blast. The examiner must indicate whether such knee disability is consistent with the type of knee injury that the Veteran has described as having occurred in service (i.e., whether the in-service claimed knee trauma left chronic residuals). The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. 3. After the Veteran’s updated VA treatment records are obtained, schedule the Veteran for an examination to determine the nature and etiology of any right hand disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to an IED blast. The examiner must indicate whether such hand disability is consistent with the type of hand injury that the Veteran has described as having occurred in service (i.e., whether the in-service claimed hand trauma left chronic residuals). The examiner must also opine whether any right hand disability is at least as likely as not caused OR aggravated by the service-connected right wrist disability. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. 4. After the Veteran’s updated VA treatment records are obtained, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD (formerly diagnosed as an anxiety disorder (also claimed as insomnia)) with residuals and TBI. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD (formerly diagnosed as an anxiety disorder (also claimed as insomnia)) with residuals and TBI alone. 5. After the Veteran’s updated VA treatment records are obtained, schedule the Veteran for all appropriate examinations by appropriate clinician(s) to determine the current severity of his service-connected lumbar spine, migraine headaches, bilateral radiculopathy, right shoulder tendonitis, right ankle, right wrist, and hearing disabilities. The examiner(s) should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner(s) must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (in appropriate examinations). If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner(s) must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. After the Veteran’s updated VA treatment records are obtained, provide the Veteran with an appropriate examination to determine the severity of the service-connected right hip labrum tear disabilities. The entire claims file, including this remand, must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the Veteran’s right hip in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner must also conduct the same testing on the left hip. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner is also asked to describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.