Citation Nr: 21014158 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-10 808 DATE: March 11, 2021 ORDER Entitlement to a rating in excess of 50 percent for sleep apnea has been withdrawn. Entitlement to a rating in excess of 30 percent for residual scar left lateral eye, status post eyelid surgery and scars, left forehead and upper medial bridge of nose, residuals of skull and facial injuries has been withdrawn. Entitlement to service connection for cervical disc disease is granted. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy, sciatic nerve, is remanded. Entitlement to service connection for a heart disability, to include right bundle branch block and ischemic heart disease is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. At his November 2020 Board hearing, prior to the promulgation of a decision in the matter, the Veteran submitted a request to withdraw his appeal on the issue of entitlement to a rating in excess of 50 percent for sleep apnea; there are no questions of fact or law in this matter remaining for the Board to consider. 2. At his November 2020 Board hearing, prior to the promulgation of a decision in the matter, the Veteran submitted a request to withdraw his appeal on the issue of entitlement to a rating in excess of 30 percent for residual scar left lateral eye, status post eyelid surgery and scars, left forehead and upper medial bridge of nose, residuals of skull and facial injuries; there are no questions of fact or law in this matter remaining for the Board to consider. 3. The Veteran’s cervical spine disc disease is causally related to his service. 4. The Veteran’s service-connected disabilities result in his being unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met with respect to the claim for entitlement to a rating in excess of 50 percent for sleep apnea; the Board has no further jurisdiction in this matter. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for withdrawal of an appeal by the Veteran have been met with respect to the claim for entitlement to a rating in excess of 30 percent for residual scar left lateral eye, status post eyelid surgery and scars, left forehead and upper medial bridge of nose, residuals of skull and facial injuries; the Board has no further jurisdiction in this matter. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.202, 20.204. 3. The criteria for service connection for cervical disc disease have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 4. The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1967 to July 1967 and from April 1980 to March 2000. This appeal comes to the Board of Veterans’ Appeals (Board) from September 2014, September 2015, and May 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in November 2020; the hearing transcript has been associated with the file and has been reviewed. Withdrawal 1. Entitlement to a rating in excess of 30 percent for residual scar left lateral eye, status post eyelid surgery and scars, left forehead and upper medial bridge of nose, residuals of skull and facial injuries 2. Entitlement to a rating in excess of 50 percent for sleep apnea 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, at his November 2020 Board hearing, has withdrawn the issues of entitlement to an increased rating for sleep apnea and an increased rating for residual facial scars and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection 3. Entitlement to service connection for cervical disc disease The Veteran contends that he has a current cervical spine disability as a result of an in-service car crash. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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 Veteran has reported that in 1966 in service he was in a vehicle that flipped and he injured his face and skull. His February 2000 retirement examination notes that the Veteran broke facial bones in a vehicle accident during service. At his November 2020 Board hearing, the Veteran testified that his neck pain onset in service after the vehicle accident and has continued since. The Veteran also reported at an August 2011 VA examination that the initial onset of neck pain occurred after his 1966 vehicle accident. He also reported that the pain worsened after his deployment during the Gulf War in the 1990s. Imaging done in 2007 indicates that the Veteran has cervical spondylosis. In August 2011, a VA examiner opined that it is at least as likely as not that the Veteran’s cervical degenerative disc disease and spondylosis are related to his service. The examiner explained that the combination of the rigors of extreme hot and cold environments in Southwest Asia as well as heavy and frequent physical exertion, which the Veteran reported, could cause repetitive trauma to the musculoskeletal system, initiating or accelerating his cervical conditions. The Veteran has also submitted multiple opinion letters from private medical providers. In an October 2014 letter one of the Veteran’s private doctors noted that he did not have access to the Veteran’s full service medical records but did note he had seen a record of the Veteran having facial surgery in service. The doctor stated that if the in-service facial surgery was a result of significant trauma to the Veteran’s head in service, then it would be reasonable to connect his current cervical problems to that injury. Another of the Veteran’s private doctors provided a letter in October 2014, stating, without providing rationale, that it is more likely than not that the Veteran’s cervical disc disease is related to his Jeep wreck. In June 2016, the Veteran’s private chiropractor opined that it is more likely than not that the Veteran’s cervical spine degenerative disc disease is related to the Veteran’s in-service vehicle accident given the nature of the accident and the subsequent facial and skull injuries. Another private doctor provided a letter in June 2016 opining that the Veteran’s cervical degenerative disc disease is more likely than not a direct result of the Veteran’s in-service vehicle accident in which he sustained a skull fracture and facial injuries. In February 2017, the Veteran’s claims file was sent to a VA examiner to obtain an etiology opinion. The examiner opined that the Veteran’s cervical spine condition is less likely than not related to the Veteran’s vehicle accident. The examiner opined that the Veteran’s whiplash injury was acute and transient and if there is no bone fracture, post-traumatic arthritis is not a problem as whiplash is most often an injury to soft tissue. The examiner noted that records do not contain complaint of cervical spine problems until four decades after the vehicle crash. The examiner opined that the Veteran’s current neck condition is the result of chronic wear and tear, a genetic predisposition, and the loss of fluid in the disc spaces. The examiner did not opine whether the Veteran’s cervical spine disability is related to his service apart from the vehicle accident. The Board notes that there are medical opinions in favor of and against finding that the Veteran’s current cervical spine disability is related to his service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current cervical spine disability is causally related to his service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for his cervical spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating 4. Entitlement to TDIU VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has a combined rating of 70 percent as of November 2009, including a 40 percent rating for sleep apnea, as well as ratings for lumbar spine degenerative disc disease, skull and facial injuries, sinusitis, right lower extremity radiculopathy, tinnitus, and hearing loss. Therefore, the Veteran meets the schedular rating criteria for TDIU. The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In his 2013 claim for unemployability, the Veteran contended that his sleep apnea, lumbar spine disability, and facial scars prevent him from securing or following a substantially gainful occupation. He indicated he has not worked since separating from service in 2000. He reported two years of college education. A disability benefits questionnaire the Veteran submitted in September 2013 indicated he would be unable to walk or stand for an extended period of time and be unable to lift more than 16 pounds due to his cervical and lumbar disability. A VA examiner indicated in May 2014 that due to the Veteran’s lumbar spine disability he is only able to lift 10 pounds, walk a half a block at one time, walk less than a few blocks total in a day, and sit or stand for five minutes at a time. The examiner also indicated the Veteran would need frequent position changes. At his August 2015 VA radiculopathy examination, the Veteran reported that weakness in his right lower extremity makes it difficult to ambulate. At his November 2020 Board hearing, the Veteran reported he can’t stand, sit, or walk for a long period of time. He also reported that his sleep apnea as well as pain from his spine and leg disabilities keep him from sleeping well. Reviewing the evidence, the Veteran has several significant disabilities impacting his ability to perform physical duties and also limited his ability to sit for prolonged periods of time. While he has some college education, the majority of his work has been in service where he had a military occupational specialty of transportation senior sergeant. The Board finds that giving the Veteran the benefit of the doubt, and considering his physical limitations and work experience, he is entitled to TDIU. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease is remanded. The Veteran most recently underwent a VA examination of his back in September 2014. The examination report does not include range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing” as found to be necessary in Correia v. McDonald, 28 Vet. App. 158 (2016). The report further makes no discussion of flare-ups as the report indicates that the Veteran does not have flare-ups of his back condition. However, at his November 2020 Board hearing, testimony of the Veteran and his spouse suggested that he does have flare-ups. The Veteran also testified that he has problems with his bladder functioning daily that may be related to his back disability. The Board finds that a new VA examination is needed to assess the current nature and severity of the Veteran’s back disability and to ensure a report is obtained that complies with the recent decisions in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy, sciatic nerve is remanded. The Veteran most recently underwent a VA examination of his lower extremity radiculopathy in August 2015. The Veteran’s testimony at his November 2020 Board hearing suggests his condition may have worsened since that time. Therefore, the Board finds that a new VA examination is needed to assess the current nature and severity of the Veteran’s right lower extremity radiculopathy. See Allday v. Brown, 7 Vet. App. 517, 526 (1995). 3. Entitlement to service connection for a heart disability, to include right bundle branch block and ischemic heart disease, is remanded. 4. Entitlement to service connection for hypertension is remanded. The Veteran has claimed service connection for a heart condition and hypertension. The Veteran’s March 1989 service examination states that an electrocardiogram (EKG) revealed a normal sinus rhythm and right bundle branch block. On his February 2000 retirement examination, the Veteran’s heart was noted to be abnormal with a note that he has occasional escape beats. At his July 2000 VA examination shortly after his separation from service, he was noted to have an EKG that showed normal sinus rhythm with incomplete right bundle branch block. Blood pressure readings were 142/85, 139/75, and 134/79. The Veteran had a stroke in December 2010. An August 2011 VA examination notes the Veteran to be on continuous medication for control of hypertension. In a January 2012 letter, the Veteran’s private cardiologist opined that the Veteran’s sleep apnea contributes to some of his cardiac problems. A private October 2012 nuclear stress test was noted to indicate inferior ischemia. A VA opinion was obtained in June 2013 in which the examiner opined that the Veteran’s only heart condition was left ventricular hypertrophy, which was not related to the Veteran’s service, but due to chronic inadequately controlled hypertension. A November 2013 private EKG was interpreted to show mild concentric left ventrical hypertrophy and grade 1 diastolic abnormality and mild mitral regurgitation. Another VA opinion was obtained in July 2014 in which the examiner indicated a diagnosis of right bundle branch block in 2014 but offered no opinion as to whether the condition onset in or was related to service, only opining that the condition was not caused by the Veteran’s hypertension. At an August 2015 VA examination, the Veteran reported he was initially diagnosed with hypertension in 2000 and had high blood pressure since leaving service but was not placed on medication to treat it until after he had a stroke in 2010. The examiner opined that the Veteran’s sleep apnea did not cause the Veteran’s hypertension but did not offer an opinion as to whether his sleep apnea aggravated the Veteran’s hypertension. In a December 2020 letter, one of the Veteran’s private doctors opined that the Veteran’s sleep apnea is more than likely a contributing factor in his hypertension and his right bundle branch block. The Board finds that a new VA opinion should be obtained that considers all of the evidence and offers an opinion, for each of the Veteran’s diagnosed heart conditions and hypertension, whether the condition onset in service, is causally related to service, or was caused or aggravated by any of his service-connected conditions, to include sleep apnea. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. Range of motion measurements should be specified in all areas outlined above. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also provide an opinion describing functional impairment of the Veteran’s back disability, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The examiner should ensure that all neurological manifestations of the Veteran’s back disability are described, to include any bladder impairment. A complete rationale must be given for all opinions and conclusions expressed. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his right lower extremity radiculopathy. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. 3. For each of the Veteran’s diagnosed or claimed heart conditions, to include right bundle block and left ventricular hypertrophy, obtain a VA opinion as to whether the condition onset in service, is causally related to the Veteran’s service, or was caused or aggravated by any of his service-connected conditions, to include sleep apnea. A complete rationale must be given for all opinions and conclusions expressed. A new VA examination is not necessary unless the VA reviewer opines one is needed. 4. Obtain a VA opinion as to whether it is at least as likely as not that that the Veteran’s hypertension onset in service, is causally related to his service, or was caused or aggravated by any of his service-connected conditions, to include sleep apnea. (Continued on the next page)   A complete rationale must be given for all opinions and conclusions expressed. A new VA examination is not necessary unless the VA reviewer opines one is needed. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen 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.