Citation Nr: 21014201 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 19-28 329 DATE: March 11, 2021 ORDER Entitlement to service connection for a left shoulder condition, is granted. Entitlement to service connection for cervical strain, is granted. Entitlement to service connection for a lung condition, is dismissed. REMANDED Entitlement to a rating greater than 20 percent for lumbosacral strain (claimed as thoracic spine), is remanded. Entitlement to a total disability based on individual unemployability (TDIU), is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his left shoulder disability began during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his cervical strain disability began during active service. 3. At the February 2021 Board hearing before the undersigned, the Veteran explicitly and unambiguously withdrew the issue of entitlement to service connection for a lung condition with a full understanding of the consequences of such action. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a left shoulder condition have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for cervical strain have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 3. The criteria for withdrawal of the appeal regarding entitlement to service connection for a lung condition have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Marine Corps from July 1990 to January 1991 and from January 1991 to April 1992 in the Marine Corps Reserve. The Veteran also served on active duty in the United States Air Force from May 1999 to July 1999; from October 2001 to February 2002; from April 2002 to May 2002; and from June 2002 to October 2002, with an unspecified period of Air National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 and an August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via live videoconference. A transcript of the proceeding will be associated with the electronic claims file. The issue of entitlement to TDIU benefits is part and parcel of the underlying increased rating issue. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the present case, the record reveals that TDIU has been raised in conjunction with the Veteran’s initial rating claim for lumbosacral strain and addressed in the remand section below. Withdrawn Issue 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. 38 C.F.R. § 20.204. Withdrawal of a claim during a hearing must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011). At the February 2021 Board hearing before the undersigned, the Veteran explicitly and unambiguously withdrew the issue of entitlement to service connection for a lunch condition with a full understanding of the consequences of such action. Hence, there remains no allegation of error of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it must be dismissed. Service Connection Service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In each case where a veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the veteran’s service as shown by the veteran’s service record, the official history of each organization in which the veteran served, the veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left shoulder condition 2. Entitlement to service connection for cervical strain The Veteran contends that service connection is warranted for a left shoulder and cervical strain conditions because the injuries first manifested while he was serving on active duty. The Veteran adds that he was medically discharged as a result of his injuries from the United States Marine Corps. See February 2021 Hearing Transcript; April 1992 military personnel discharge record. The Veteran added that he was granted service connection for a back condition, but not for the cervical strain and left shoulder condition, although the conditions manifested at the same time as a result of carrying a heavy backpack on active duty. Id. A review of the record shows that the August 2018 rating decision granted service connection for the back condition as a pre-existing condition that was aggravated beyond natural progression during his second period of active duty in the United States Air Force. The Veteran’s Marine Corps reserve service treatment records (STRs) show that he was diagnosed with cervical pain in July 1992, although the practitioner noted that his symptoms fist began when he was on active duty in December 1990. A May 1991 reserve STR shows bilateral clavicle and shoulder pain as well. Based on a review of the record, the evidence shows that the Veteran has a current disability of a left shoulder condition, as well as cervical condition. His STRs show treatment for both conditions as either occurring in-service when he served in the United States Marine Corps, or aggravated as a result of his service in the United States Air Force. The Board observes that due to improper instructions provided by the RO to only evaluate the Veteran’s back condition, he was not evaluated for the left shoulder and cervical spine condition by the VA medical examiner. In February 2021, the Veteran testified that he has trouble looking up repeatedly for his job as a pest management specialist as his neck becomes tense. The Veteran also added that he has had several surgeries on his shoulders and that they have frequently bothered him since service and as a result of his shoulder and cervical spine condition, and a surgery nearly six months ago for a rotor cuff tear, he has been unable to work. As the Board has found evidence of a diagnosis, as well as an in-service incurrence based on STRs, as well as corroboration based on the Veteran’s testimony, and based on the relatedness to the Veteran’s back disability, the Board observes that a nexus is apparent. For these reasons, and after resolving reasonable doubt in the Veteran's favor, the Board finds that the cervical spine and left shoulder disabilities began during service, that is, was "incurred in" active service; thus, the criteria for direct service connection have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to a rating greater than 20 percent for lumbosacral strain (claimed as thoracic spine), is remanded The Veteran testified that his back condition is worse since the last VA examination. See February 2021 Hearing Transcript. An August 2018 rating decision granted a 20 percent evaluation based on the findings of an August 2018 VA examination. The record reveals that another VA examination was conducted in August 2019 to assess current severity. However, where a Veteran contends that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A(d); see also Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). Although the August 2019 VA examination is less than two years old, based on the Veteran’s credible testimony provided in February 2021 regarding worsening, the Board finds that an updated examination is warranted, considering the nature of his disability. On remand, the AOJ should afford the Veteran a new VA examination to determine the current severity of his lumbosacral strain. 4. Entitlement to a total disability based on individual unemployability (TDIU), is remanded The Board finds that the claim of entitlement to a TDIU is inextricably intertwined with the claims for service connection being remanded herein. All issues “inextricably intertwined” with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). The issue of entitlement to a TDIU is intertwined with the claims being remanded herein, and may have an impact on the TDIU claim. Thus, the claim of entitlement to a TDIU must be remanded for the appropriate development, as well as contemporaneous adjudication. Id. Accordingly, the matters are REMANDED for the following action: 1. Verify the Veteran's periods of Air National Guard service, including periods of ACDUTRA/INACDUTRA. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral strain, as well as separate Disability Benefits Questionnaire’s (DBQ) for his cervical spine condition and left shoulder condition in order to conduct range of motion (ROM) testing, prior to assigning a proper rating. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). The examiner 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). (Continued on the next page)   3. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefit sought in connection with the claim remain denied, the Veteran should be provided with a supplemental statement of the case (SSOC) and given the opportunity to respond and appropriate period should be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.