Citation Nr: 21028843 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-20 392A DATE: May 12, 2021 ORDER Entitlement to an initial compensable disability rating prior to January 17, 2018, in excess of 10 percent from January 17, 2018 and in excess of 30 percent from September 6, 2020 for residuals of a cold injury of the left foot is dismissed. Entitlement to an initial disability rating in excess of 10 percent prior to September 6, 2020 and in excess of 30 percent thereafter for residuals of a cold injury of the right foot has been withdrawn. REMANDED Entitlement to service connection for glaucoma is remanded. Entitlement to service connection for right eye blindness is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for lumbar spondylosis is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to an initial disability rating in excess of 10 percent for hypertension is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected conditions is remanded. FINDING OF FACT At the Board hearing in February 2021, the Veteran requested to withdraw the appeal as to the issues of entitlement to increased initial ratings for residuals of a cold injury of the left foot and residuals of a cold injury of the right foot. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an initial compensable disability rating prior to January 17, 2018, in excess of 10 percent from January 17, 2018 and in excess of 30 percent from September 6, 2020 for residuals of a cold injury of the left foot by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to an initial disability rating in excess of 10 percent prior to September 6, 2020 and in excess of 30 percent thereafter for residuals of a cold injury of the right foot by the Veteran 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 from May 1979 to May 1983. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board of Veterans' Appeals (Board) in February 2021. A transcript of that hearing has been associated with the claims file. During the pendency of this appeal, service connection for tinnitus was granted by a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), thereby constituting a full grant of the benefits sought on appeal and thus, this issue is no longer in appellate status before the Board. Withdrawal 1. Increased Initial Ratings for Residuals of a Cold Injury of the Left Foot and Residuals of a Cold Injury of the Right Foot Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing or in testimony at a hearing. 38 C.F.R. § 19.55. During the February 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of entitlement to increased ratings for residuals of a cold injury of the left foot and residuals of a cold injury of the right foot. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to the appeal of these two issues. See Board Videoconference Hearing Transcript at 2. The Veteran's full understanding of the consequences is shown based on the fact that prior to the hearing, the consequences of withdrawal of these issues were fully discussed by the undersigned, the Veteran and his representative. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). REASONS FOR REMAND 1. Glaucoma, Right Eye Blindness, Left Hand Disability, Bilateral Knee Disability During the February 2021 video conference hearing, the Veteran testified that his glaucoma and right eye blindness were secondary to his service-connected hypertension. In this hearing, the Veteran also testified that his left hand was initially injured in service as it was an overuse injury resulting from exercising during the time he was stationed in Germany. He stated that he sustained nerve damage at that time and symptoms have continued to the present time. In addition, the Veteran testified at this hearing that his bilateral knee disabilities are related to his service-connected foot disabilities. The Veteran is currently service-connected for hypertension and residuals of cold injuries of the left foot and right foot. VA medical records reflect the Veteran has current diagnoses of glaucoma, right eye blindness, left ulnar neuropathy, left hand atrophy and left knee pain and arthralgias. These records also reflect the Veteran has been treated for and diagnosed with hypertension with retinopathy as well as ocular hypertension. A June 2020 VA outpatient treatment report reflects the Veteran reported a history of frostbite in service and has had chronic pain in the hands and feet since that time. In a July 2020 VA outpatient treatment report, the Veteran's history and diagnoses reflect peripheral neuropathy secondary to frostbite in the bilateral lower extremities. In light of this evidence, VA examinations with opinions are necessary to identify whether it was at least as likely as not that the current left hand disability was incurred in or otherwise related to the Veteran's active service and whether glaucoma, right eye blindness, a left hand disability and bilateral knee disability are proximately due to or aggravated by a service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1276 (2010); Allen v. Brown, 7 Vet. App. 439, 448 (1995). 2. Lumbar Spondylosis Although a VA examination and opinion were provided in June 2011 with respect to the issue of lumbar spondylosis, the VA examiner did not consider the Veteran's lay statements of a continuity of service. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran testified at the February 2021 virtual hearing that his lumbar spine disability was treated during his active service and he has continued to have back problems since that time. In addition, the Veteran testified that his lumbar spine disability was made worse by his service-connected residuals of a cold injury in the left foot and right foot, as these disabilities caused him to fall more and injure his back. Therefore, a new VA examination with an opinion is necessary to identify whether it was at least as likely as not that the current lumbar spondylosis was incurred in or otherwise related to the Veteran's active service and whether the current lumbar spondylosis is proximately due to or aggravated by a service-connected disability. McLendon, 20 Vet. App. at 83; Locklear, 20 Vet. App. 410; see Waters, 601 F.3d at 1276; Allen, 7 Vet. App. at 448. 3. Hearing Loss Although prior VA examinations in June 2011 and March 2018 did not find the Veteran had a current hearing loss disability for VA compensation purposes, the Veteran testified at the February 2021 virtual hearing that his hearing problems had worsened since that time. In light of the possibility that the Veteran's hearing loss may qualify as a disability for VA compensation purposes, the Board finds a new VA examination is warranted to determine whether the Veteran has a current hearing loss disability and whether any current hearing loss disability was incurred in or otherwise related to the Veteran's active service. McLendon, 20 Vet. App. at 83; Locklear, 20 Vet. App. 410; see Waters, 601 F.3d at 1276. 4. Hypertension Since the last March 2018 VA examination, the Veteran testified at the February 2021 virtual hearing that his hypertension has gotten worse since that time. Therefore, it is necessary to adequately determine the current severity of the Veteran's hypertension and the functional effects of such disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPCGPREC 11-95 (April 7, 1995); see also 38 C.F.R. § 3.327. 5. TDIU In this case, although the Veteran meets preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) from February 10, 2021, he does not meet this criteria prior to this time and, in light of the Board's remand for VA examinations, the results may affect the outcome of the issue of entitlement to TDIU for the entire appeal period. Accordingly, the Board will defer a decision pending further consideration by the Agency of Original Jurisdiction (AOJ). See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies. 2. The Veteran should be afforded a VA examination to determine the current nature and etiology of glaucoma and right eye blindness. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS: (1) the Veteran's reported history carefully, including, the VA medical records demonstrating diagnoses of hypertension with retinopathy in August 2013 as well as ocular hypertension in March 2016. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: The examiner is asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed glaucoma and right eye blindness are PROXIMATELY DUE TO OR AGGRAVATED by a service-connected disability, to include hypertension, OR the medications for service-connected disabilities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 3. The Veteran should be afforded a VA examination to determine the current nature and etiology of his left hand disability. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS: (1) the Veteran's reported history carefully, including, his lay statement of an overuse injury to the left hand in service and a continuity of symptoms since that time; (2) VA outpatient treatment reports reflecting a diagnosis of left ulnar neuropathy; AND (3) a June 2020 VA outpatient treatment report reflecting a history of frostbite in service and reports of chronic pain in the hands and feet since that time as well as a July 2020 VA outpatient treatment report demonstrating the Veteran's history and diagnoses of peripheral neuropathy secondary to frostbite in the bilateral lower extremities. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: The examiner is asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed left hand disability: (1) had its onset during the Veteran's period of active service; or, (2) was caused by any incident or event that occurred during such period, including exposure to frostbite; or (3) is PROXIMATELY DUE TO OR WAS AGGRAVATED by a service-connected disability, to include residuals of cold injuries to the left foot and right foot, OR the medications for service-connected disabilities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 4. The Veteran should be afforded a VA examination to determine the current nature and etiology of his bilateral knee disability. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: The examiner is asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed bilateral knee disability: (1) had its onset during the Veteran's period of active service; or, (2) is PROXIMATELY DUE TO OR WAS AGGRAVATED by a service-connected disability, to include residuals of cold injuries to the left foot and right foot, OR the medications for service-connected disabilities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 5. The Veteran should be afforded a VA examination to determine the current nature and etiology of his lumbar spondylosis. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS: the Veteran's reported history carefully, including, his lay statements of a back injury in service and a continuity of symptoms since that time; PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: The examiner is asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed lumbar spine disability: (1) had its onset during the Veteran's period of active service; or, (2) was caused by any incident or event that occurred during such period; or (3) is PROXIMATELY DUE TO OR WAS AGGRAVATED by a service-connected disability, to include residuals of cold injuries to the left foot and right foot, OR the medications for service-connected disabilities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 6. The Veteran should be afforded a VA examination to determine the current nature and etiology of his hearing loss disability. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. PLEASE REVIEW AND ADDRESS: (1) the Veteran's reported history carefully, including exposure to excessive noise in service; AND (2) the STRs and the Veteran's service records demonstrating his military occupational specialty (MOS) of an infantryman. PLEASE NOTE: the Veteran is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: The examiner is asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that: (1) the Veteran has a currently diagnosed hearing loss disability for VA compensation purposes; (2) had its onset during the Veteran's period of active service; or, (3) was caused by any incident or event that occurred during such period, including exposure to excessive noise. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 7. Upon receipt of any additional records, schedule the Veteran for a VA examination of his hypertension. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The evaluation of hypertension should consist of all necessary testing. To the extent possible, the examiner should identify any functional effects and functional impairment of the Veteran's hypertension on his occupational functioning, daily life, and ordinary activities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 8. Following the above VA examinations, and after any additional development that may be indicated, adjudicate the issue of entitlement to TDIU. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.