Citation Nr: 21030469 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-65 401 DATE: May 19, 2021 ORDER The appeal regarding entitlement to an effective date prior to September 5, 2018 for entitlement to service connection for right ear hearing loss is dismissed. The appeal regarding entitlement to service connection for left ear hearing loss is dismissed. The appeal regarding entitlement to a disability rating in excess of 30 percent for aphakia of the right eye, associated with shell fragment would with traumatic cataract, with corneal transplant and interocular lens replacement, is dismissed. The appeal regarding entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with persistent depressive symptoms and alcohol use disorder in sustained remission with traumatic brain injury (TBI) is dismissed. The appeal regarding entitlement to a compensable disability rating for right ear hearing loss is dismissed. REMANDED Entitlement to service connection for a cervical disability is remanded. Entitlement to a disability rating in excess of 10 percent for lateral collateral ligament sprain of the right ankle is remanded. Entitlement to a disability rating in excess of 10 percent for lateral collateral ligament sprain of the left ankle is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. FINDING OF FACT On January 13, 2021, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeals regarding (1) an effective date prior to September 5, 2018 for entitlement to service connection for right ear hearing loss; (2) entitlement to service connection for left ear hearing loss; (3) entitlement to a disability rating in excess of 30 percent for aphakia of the right eye, associated with shell fragment would with traumatic cataract with corneal transplant and interocular lens replacement; (4) entitlement to a disability rating in excess of 70 percent for PTSD with persistent depressive symptoms and alcohol use disorder in sustained remission with TBI; and (5) entitlement to a compensable disability rating for right ear hearing loss. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding entitlement to an effective date prior to September 5, 2018 for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal regarding entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal regarding entitlement to a disability rating in excess of 30 percent for aphakia of the right eye, associated with shell fragment would with traumatic cataract, with corneal transplant and interocular lens replacement have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal regarding entitlement to a disability rating in excess of 70 percent for PTSD with persistent depressive symptoms and alcohol use disorder in sustained remission with TBI have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the appeal regarding entitlement to a compensable disability rating for right ear hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 1966 until July 1969. A Board hearing was held in January 2021. A transcript is of record. Withdrawn Issues 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. At his Board hearing, the Veteran withdrew his appeals regarding (1) an effective date prior to September 5, 2018 for entitlement to service connection for right ear hearing loss; (2) entitlement to service connection for left ear hearing loss; (3) entitlement to a disability rating in excess of 30 percent for aphakia of the right eye, associated with shell fragment would with traumatic cataract with corneal transplant and interocular lens replacement; (4) entitlement to a disability rating in excess of 70 percent for PTSD with persistent depressive symptoms and alcohol use disorder in sustained remission with TBI; and (5) entitlement to a compensable disability rating for right ear hearing loss. Accordingly, the Board does not have jurisdiction to review the above issues on appeal, and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. The Veteran asserts that during combat operations in Vietnam, an AK-47 bullet went through his helmet and into his head, snapping his head back resulting in the rear of the helmet smashing into his neck, which has caused the current cervical spine disability. See January 2021 Board Hearing Tr. at 4. Alternatively, the Veteran asserts that his cervical spine disability is associated with his service-connected lateral collateral ligament sprain of the bilateral ankles. The Board notes that although the Veteran relates his neck disability to his head injury from the bullet wound or secondary to his bilateral ankles, the fact that the Veteran had other head injuries in service (i.e. parachute accident that resulted in his being knocked unconscious) must also be considered. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in October 2020. The Board notes that the October 2020 VA examiner did not provide an opinion on direct service connection. Additionally, the October 2020 VA examiner opined only that the Veteran's cervical spine disability is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected ankle disabilities and did not provide an opinion addressing if the Veteran's cervical spine disability is aggravated beyond its natural progression due to a service-connected disability (including but not limited to his service-connected ankle disabilities). Because the October 2020 VA examiner failed to address direct service connection nor aggravation beyond the natural progression of the disability, the Board finds that the October 2020 VA examination is inadequate and for the above reasons, remand is required. 2. Entitlement to a disability rating in excess of 10 percent for lateral collateral ligament sprain of the right ankle is remanded. 3. Entitlement to a disability rating in excess of 10 percent for lateral collateral ligament sprain of the left ankle is remanded. During the January 2021 Board hearing, the Veteran asserted that his bilateral ankle disabilities have worsened since the previous examination. Therefore, remand is required for a new VA examination to determine the current severity of the Veteran's bilateral ankle disabilities. 4. Entitlement to service connection for a right shoulder disability is remanded. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The AOJ did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, has a presumptive disease during the pertinent presumptive period, or is service-connected for a disability that may have caused or aggravated the Veteran's disability; and (3) indicates that the claimed disability may be associated with the in-service event, injury, disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran has shoulder pain; reports in-service shoulder injuries and parachute jumps; the current disability may be related to in-service injuries and/or parachute jumps. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. The Board notes that the Veteran was afforded a VA examination for his left shoulder disability in February 2018, but not his right shoulder disability. As will be addressed below, the Board finds that the February 2018 shoulder VA examination is inadequate. 5. Entitlement to service connection for a left shoulder disability is remanded. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the Veteran's left shoulder disability, the AOJ obtained a VA examination and nexus opinion in February 2018. The February 2018 VA examiner opined that the Veteran's left shoulder condition was less likely than not (less than 50 percent probability) incurred in or caused by getting hurt while jumping out of airplanes during service because there was no medical note or documentation during service showing a left shoulder injury, diagnosis, or prescriptions and that the separation examination was silent for any shoulder disability. The Board notes that during the January 2021 Board hearing, the Veteran testified that he did not have any post-service shoulder injuries and that he worked in a sales job. However, the Board notes that the Veteran's private treatment records reflect a 2018 motorcycle accident in which the Veteran subsequently reported bilateral shoulder pain. See May 2, 2018 Paramount Medical Imaging private treatment records. Despite the apparent inconsistency, the Board notes that the Veteran's VA treatment records also reflect issues with his shoulders prior to the May 2018 private treatment records documenting a motorcycle accident. Finally, the Board finds that the Veteran is credible. The Board notes that the Veteran testified during the January 2021 Board hearing that his 1969 separation examination was conducted by an ophthalmologist that did not provide an adequate separation examination, noting disabilities that were not addressed during the separation examination that he is now service connected for and that the ophthalmologist concentrated on his eye disability rather than addressing other disabilities. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and private treatment records and associate the same with the claims file. 2. Thereafter, provide the Veteran with an appropriate examination to determine the etiology of his cervical spine disability. The entire claims file 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. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater probability) that the Veteran's cervical spine disability had onset in, or is otherwise related to, active military service, including but not limited to the Veteran being shot in the forehead by an AK-47, knocking his head back, and causing the back of his helmet smash into his neck; and/or from a his parachuting accident(s) including him being knocked unconscious, and/or from his helicopter hard landing (crash). The examiner must also provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater probability) that the Veteran's cervical spine disability was caused or aggravated by his service-connected ankle disability. 3. After the development requested in item #1 above is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lateral collateral ligament sprain of the bilateral ankles. 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. 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). Furthermore, in so doing, 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). 4. After the development requested in item #1 above is completed, schedule the Veteran for a VA examination for his bilateral shoulder disabilities. The examiner must review the entire claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are the Veteran's bilateral shoulder disabilities at least as likely as not related to service, including training and operations with parachute jumps out of aircraft? Provide a detailed rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injuries and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (Continued on the next page) 5. Readjudicate. DONNIE R. HACHEY 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.