Citation Nr: 21015418 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-55 599 DATE: March 17, 2021 ORDER Entitlement to an initial compensable rating for left hand cellulitis is dismissed. Entitlement to an initial rating in excess of 20 percent for right shoulder strain is dismissed. Entitlement to service connection for erectile dysfunction to include as secondary to post-traumatic stress disorder is dismissed. Entitlement to special monthly compensation based on loss of use is dismissed. Entitlement to a temporary 100 percent evaluation for convalescence for December 7, 2015 right carpal tunnel procedure is dismissed. REMANDED Entitlement to an initial rating in excess of 10 percent for carpal tunnel syndrome left upper extremity for the period prior to December 14, 2015, and in excess of 20 percent thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for carpal tunnel syndrome right upper extremity for the period prior to December 14, 2015, and in excess of 30 percent thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for cervical strain is remanded. FINDING OF FACT At the March 2021 Board hearing, the Veteran stated on the record that he wished to withdraw his appeal of the issues of increased ratings for left hand cellulitis and right shoulder strain, service connection for erectile dysfunction, special monthly compensation for loss of use and entitlement to a temporary 100 percent evaluation for convalescence for a December 2015 right carpal tunnel procedure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of an initial compensable rating for left hand cellulitis have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 2. The criteria for withdrawal of the appeal of the issue of an initial rating in excess of 20 percent for right shoulder strain have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 3. The criteria for withdrawal of the appeal of the issue of service connection for erectile dysfunction to include as secondary to post-traumatic stress disorder been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § § 19.55 (2020). 4. The criteria for withdrawal of the appeal of the issue of special monthly compensation based on loss of use have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 5. The criteria for withdrawal of the appeal of the issue of a temporary 100 percent evaluation for convalescence for a December 7, 2015 right carpal tunnel procedure have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 2010 to March 2011 and from September 2013 to June 2014. This matter came before the Board of Veterans Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a March 2021 hearing. Withdrawal 1. Entitlement to an initial compensable rating for left hand cellulitis 2. Entitlement to an initial rating in excess of 20 percent for right shoulder strain 3. Entitlement to service connection for erectile dysfunction to include as secondary to post-traumatic stress disorder 4. Entitlement to special monthly compensation based on loss of use 5. Entitlement to a temporary 100 percent evaluation for convalescence for December 7, 2015 right carpal tunnel procedure An appeal may be withdrawn by an appellant or his or her authorized representative 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. At the March 2021 Board Hearing, the Veteran confirmed on the record that he wished to withdraw his appeal of the issues of increased ratings for left hand cellulitis and right shoulder strain, service connection for erectile dysfunction, special monthly compensation for loss of use and entitlement to a temporary 100 percent evaluation for convalescence for a December 2015 right carpal tunnel procedure. The undersigned Veteran’s Law Judge advised the Veteran of the impact of such a withdrawal and the Veteran confirmed his wish to withdraw. As the Veteran confirmed on the record that he wished to withdraw his appeal regarding this issue after being advised of withdrawal’s impact, the Board finds that the withdrawal was explicit, unambiguous and done with the full understanding of the consequences of such an action. See DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Accordingly, the Board does not have jurisdiction to review the issues of increased ratings for left hand cellulitis and right shoulder strain, service connection for erectile dysfunction, special monthly compensation for loss of use and entitlement to a temporary 100 percent evaluation for convalescence for a December 2015 right carpal tunnel procedure and the appeal as it pertains to these issues is dismissed. 38 C.F.R. § 19.55. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for carpal tunnel syndrome left upper extremity for the period prior to December 14, 2015, and in excess of 20 percent thereafter is remanded. 2. Entitlement to an initial rating in excess of 10 percent for carpal tunnel syndrome right upper extremity for the period prior to December 14, 2015, and in excess of 30 percent thereafter is remanded. 3. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is remanded. At the March 2021 Board hearing, the Veteran reported that his left and right upper extremity carpal tunnel syndrome (CTS) and lumbar spine disabilities have worsened since his last VA examinations in May 2015 and August 2017.. He specifically reported that his pain has increased, and he now has ganglion cysts associated with his CTS. As the evidence of record suggests his service-connected disabilities have increased in severity since the most recent VA examinations, the Board finds that the Veteran should be afforded new examinations. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board also notes that since the May 2015 VA lumbar spine examination, the U.S. Court of Appeals for Veteran’s Claims (the Court) has issued the decision in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) concerning the adequacy of VA orthopedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board’s review indicates that the May 2015 VA lumbar spine examination did not include the testing required under Correia and thus remand for a new examination is required. In addition, the May 2015 VA lumbar spine examiner found pain on range of motion testing but did not indicate the point in the range of motion that pain began. This does not allow the Board to properly assess the functional impairment caused by the disability. As noted above, examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. These questions should therefore be addressed upon remand. 4. Entitlement to service connection for a bilateral hearing loss disability is remanded. The June 2015 VA examination found that the Veteran’s bilateral hearing loss disability did not meet the threshold criteria to be considered a disability for VA purposes, diagnosing normal hearing in both ears. However, at the March 2021 Board hearing the Veteran testified that his hearing loss disability had worsened since that examination. Due to the remoteness of the most recent VA examination and as the evidence of record suggests his hearing may have increased in severity since the most recent VA examination, there is a possibility that he may now meet the disability threshold. The Board therefore finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 5. Entitlement to service connection for a left shoulder disability is remanded. 6. Entitlement to service connection for cervical strain is remanded. At the March 2021 Board hearing, the Veteran reported that his left shoulder and cervical spine disabilities began in service after an IDF attack during deployment when he was close to an explosion and was knocked down. Consistent with the Veteran’s reports, the record contains a September 2016 Line of Duty request noting two instances during deployment when he was thrown to the ground 30 meters from an explosive device while doing maintenance work, once in August 2014 and once in March 2015. In addition, a May 2014 post deployment health assessment reported joint and back pain during deployment. At the March 2021 hearing, the Veteran reported shoulder and neck problems that began after the explosions in service and continued to the present day. The Board notes that the Veteran is competent to report the onset of lay-observable symptoms such as neck and shoulder pain. In addition, October 2014 VA treatment records noted neck pain that the Veteran related to wearing heavy gear and doing heavy labor, and the provider stated that neck pain was likely due to repetitive strain injury. The Veteran also reported that his gait had been altered due to his service connected back disability and that this also caused neck problems. A May 2015 VA examination found that the Veteran’s left shoulder disability was not likely caused by his right shoulder disability. The Board notes that the opinion discussed causation but did not address the issue of aggravation of the left shoulder by the service-connected right shoulder, and therefore finds that the opinion is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140–41 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The examiner also did not address the question of direct service connection and remand for a new examination is required to consider the Veteran’s reports of injury in service. A May 2015 VA cervical spine examination diagnosed cervical sprain. The examiner did not provide an etiological opinion regarding either direct or secondary service connection. As the record shows that the Veteran was knocked down by two close range explosions in service, he has submitted competent lay evidence regarding left shoulder and cervical spine pain in service and the May 2015 VA examinations diagnosed current disabilities, remand for new VA examinations and opinions is required to consider the evidence and provide opinions regarding direct and secondary service connection. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of his left and right upper extremity carpal tunnel syndrome. The examiner should review the file and provide a complete rationale for all opinions expressed. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lumbar spine disability. The examiner should review the file and provide a complete rationale for all opinions expressed The examiner should identify all lumbar spine pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current bilateral hearing loss disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current bilateral hearing loss disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 4. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current left shoulder disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current left shoulder disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include being knocked to the ground after a close-range explosion in August 2014 and one in March 2015. The opinion should also address whether the left shoulder disability was caused or aggravated by the Veteran’s service-connected right shoulder disability. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 5. Schedule the Veteran for an appropriate VA examination to determine the etiology of his cervical strain. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical strain is related to active service, to include being knocked to the ground after a close-range explosion in August 2014 and one in March 2015. The opinion should also discuss whether the any cervical spine disability was caused or aggravated by the Veteran’s service-connected lumbar spine disability. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 6. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.