Citation Nr: 21030735 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-29 679 DATE: May 19, 2021 ORDER The appeal of entitlement to a higher rating for bilateral hearing loss is dismissed. Entitlement to service connection for a right shoulder disability, secondary to a service-connected left shoulder disability, is granted. Entitlement to service connection for a lumbar spine disability is granted. An initial disability rating of 30 percent for service-connected kidney stones is granted. REMANDED Entitlement to an initial disability rating greater than 30 percent for service-connected kidney stones is remanded. FINDINGS OF FACT 1. During his January 2021 hearing, and prior to the promulgation of a decision in the appeal, the Veteran formally withdrew his appeal for a higher rating for bilateral hearing loss. 2. The evidence is at the very least in equipoise as to whether the Veteran's lumbar spine disability had its onset during active military service. 3. The evidence of record favors a finding that the Veteran's right shoulder disability is related his service-connected left shoulder disability. 4. The Veteran has required diet and drug therapy for recurrent stone formation for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for a higher rating for bilateral hearing loss by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a right shoulder disability secondary to the service-connected left shoulder disability have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. 4. The criteria for an initial disability rating of 30 percent for service-connected kidney stones have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.115b, Diagnostic Code 7508. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1990 to August 1992 and in the United States Air Force from October 2000 to June 2001, August 2001 to January 2003, August 2004 to October 2004, and November 2007 to September 2010. The matters comes before the Board of Veterans' Appeals on appeal of April 2015 and February 2016 rating decisions. In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. As will be discussed below, in April 2021, the Veteran's attorney submitted a computer disc containing records of both VA and private care that he wished to be associated with the record and considered in this appeal. While the cover letter has been uploaded to the file, it does not appear the information on the disc itself has been associated with the file. Insofar as the Veteran had already expressed a desire to withdraw his rating claim for hearing loss, there is no prejudice in the Board's dismissing that issue below. Similarly, as will be discussed, the Board is granting entitlement to service connection for both the back and right shoulder disability. As such, the Board's inability to view the records contained on the submitted disc also has no prejudicial effect on the adjudication of these issues. The evidence of record is also already sufficient to warrant an award of a higher initial rating for recurrent kidney stones to 30 percent; however, because the Board is unable to view the additionally submitted medical records, it would be premature to adjudicate the question of whether an initial rating higher than 30 percent is warranted for the Veteran's kidney stone disorder. As such, that matter will be remanded to the agency of original jurisdiction (AOJ) for additional development. Claim Not in Appellate Status Higher Rating for Bilateral Hearing Loss 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, during his January 2021 hearing, the Veteran withdrew this appeal as it pertained to entitlement to a higher rating for his service-connected hearing loss disability; therefore, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the issue and it is dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be awarded on a secondary basis for disability which is caused or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a lumbar spine disability The Veteran seeks entitlement to service connection for a lumbar spine disability. He contends that he initially injured his lower back on a land navigation course while in the Army in October 1990. He further contends that he was treated for lower back pain in July 2000 and was diagnosed with lumbar facet syndrome. Additionally, he contends that he was treated for back pain after his November 2007 ejection accident. See July 2014 VA Form 21-4138. VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Here, the Veteran's 1990 enlistment examination notes back pain/injury with respect to an October 1988 football injury. See August 1990 enlistment examination report. While the Veteran's history of back pain was documented at the time of the Veteran's enlistment, the consulting physician did not diagnose him as having a back disability. Though intractable back pain is noted, the record indicates the Veteran received conservative treatment, herniated nucleus pulposus (HNP) was not confirmed, and he was released to play football. Additionally, the Veteran's clinical evaluation at enlistment notes a normal spine. See August 1990 enlistment clinical evaluation. Therefore, given the normal entrance examination, the Board finds that the evidence is not clear and unmistakable that any lumbar spine disability pre-existed service and was not aggravated in service, and the Veteran is presumed sound at service entrance. 38 U.S.C. § 1111. Thus, the question for the Board becomes one of direct service connection. A review of the Veteran's service treatment records reveals that the Veteran had a back injury on a land navigation course in October 1990. See October 1990 service treatment record. The record indicates that the Veteran reported a long history of lower back pain after flying. The record notes that x-rays demonstrated L5/S1 osteoarthritis and reduced disc space. See July 2000 service treatment records. The record indicates that the Veteran reported several weeks of lower back pain in August 2000 and that he was assessed with mechanical lower back pain/muscle strain, and facet involvement. However, an August 2000 lumbosacral spine MRI identified no abnormality. See August 2000 service treatment records. The record includes a November 2005 MRI of the lumbar spine that showed diffuse disc bulging, as well as degenerative facet joint changes and ligamentous hypertrophy results in mild to moderate bilateral foraminal narrowing at the L2-3 and L3-4 levels, as well as moderate bilateral foraminal narrowing at the L4-5 and L5-S1 levels. See November 2005 service treatment records. A February 2008 private treatment record indicates that the Veteran reported experiencing low back pain since injury in November 2007 associated with the ejection accident. At that time, his lumbar spine x-ray was normal. See February 2008 private treatment record. Private treatment records note that the Veteran's MRI shows some bulging at L4-5 and moderate stenosis at L3-4 L4-5. See February 2017 private treatment records. The key question at issue in this case is whether the Veteran's current spine disorder is related to his in-service injuries. The Veteran was afforded a VA back conditions examination in March 2015. During the examination, the VA examiner noted that the Veteran had not been diagnosed with a thoracolumbar spine condition. The Veteran reported that in 2007 he made an emergency ejection from a plane that broke apart, injuring his back. He reported receiving physical therapy for a time and that he has occasional stiffness in the lumbar spine. The examiner stated that there was no objective medical evidence on the day of exam or in the claims file to support a current or chronic back diagnosis. As a result of the examination, the VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He explained that symptoms are subjective only, the objective exam is normal, there is no objective evidence of a chronic condition, and a nexus has not been established. He further opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. He explained that temporary aggravation is plausible, but there is no evidence of permanent aggravation of the claimed pre-existing condition. He noted that the current medical literature does not support, and a nexus has not been established. See March 2015 VA examination report. To the extent that the examiner appears to assess the Veteran's claim for service connection under the theory of aggravation, as noted above, in this case the Veteran is presumed sound upon entry. Moreover, the examiner did not reconcile the lack of diagnosis with prior imaging of record showing the presence of a back disability. Therefore, the March 2015 opinion is afforded little probative weight in the resolution of the claim. See Reonal v. Brown, 5 Vet. App. 460, 461 (1991). The Veteran was afforded another VA back conditions examination in March 2017. During this examination, the examiner noted that the Veteran had been diagnosed with degenerative arthritis of the lumbar spine in November 2005. The examiner noted that the Veteran's November 2005 lumbar spine MRI showed disc bulging and degenerative changes resulting in foraminal narrowing at multiple levels, and that his August 2000 MRI of the lumbosacral spine noted that no abnormality was identified. He further commented that there was no pre-existing lower back condition, but an in-service treatment record for onset of low back pain in June 1993 noted a report of spasm in the right lower back during high school football in 1988, and "Took cortisone shot which helped, no sequelae, and no LBP since." As a result of the examination, the VA examiner opined that the Veteran's degenerative arthritis lumbar spine diagnosed in November 2005 is less likely than not related to military service. He explained that the Veteran's degenerative arthritis lumbar spine is more likely related to the aging process and stresses on the back over Veteran's lifetime. See March 2017 VA examination report. However, as the VA examiner did not provide any further rationale for the opinion, nor did the opinion reflect adequate consideration of the Veteran's in-service back injuries, this opinion is also afforded little probative value. The record includes a request for an opinion regarding aggravation of a pre-existing condition with respect to the lumbar disability; however, the request was not addressed by the VA examiner. However, as noted above, the question for the Board is one of direct service connection, not aggravation of a pre-existing condition. While the VA medical nexus opinions of record do not link the Veteran's current back disability to his claimed in-service injury, for the reasons discussed above, the Board affords them little probative value. The Board finds probative the Veteran's consistent reports to physicians of back pain originating with his in-service injury. The Board finds no reason to call into question the Veteran's credibility as to his report of having symptoms affecting his back during and since service. After considering his descriptions of in-service injuries resulting in back pain, his private medical records showing complaints of back pain since service, post-service imaging showing degenerative changes, and the Veteran's longstanding complaints of back pain, the Board finds the evidence of record to be at the very least in equipoise as to whether the Veteran's back disability had onset during his period of active duty service. The evidence, in the Board's view, is at least evenly balanced as to whether the Veteran's lumbar spine disability is related to service. As reasonable doubt must be resolved in favor of the Veteran, entitlement to service connection for a lumbar spine disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right shoulder disability as secondary to a service-connection left shoulder disability. The Veteran seeks entitlement to service connection for a right shoulder disability. He contends that his right shoulder disability is the result of overuse of his right shoulder due to not being able to use his service-connected left shoulder. During his hearing, the Veteran testified credibly that he had right shoulder pain after his November 2007 ejection incident during which he sustained his left shoulder injury. He testified that, at the time, physicians concentrated on treating the left shoulder dislocation/fracture. He testified that his right shoulder pain has been manageable until recently; however, because of the left shoulder injury, he has favored his left shoulder, and he does more with his right shoulder. He testified that, over time, he has had discomfort in his right shoulder. He testified that he has had physical therapy and that diagnostic imaging has revealed a labral tear and arthritis in his right shoulder. He further testified that he recently had surgery on his right shoulder, from which he was still recovering, and that his surgeon had also discovered a partial rotator cuff tear. See January 2021 Hearing Transcript. The record reflects that the Veteran complained of right shoulder pain in November 2007 following his severe left shoulder injury; however, the right shoulder sonogram showed normal examination and no rotator cuff tear. See November 2007 private treatment records. Physical therapy records note chronic bilateral shoulder pain. See October 2016 and February 2018 private treatment records. A December 2017 MRI of the right shoulder showed a large labral tear; moderate rotator cuff tendinopathy without evidence of full-thickness tear; and degenerative changes. December 2017 right shoulder x-rays showed mild right acromioclavicular (AC) joint osteoarthritis. See December private treatment records. Therefore, the existence of a current right shoulder disability is not at issue. Additionally, the Veteran is service-connected for a left-shoulder disability. The first two elements for service connection having been met, the key question at issue is whether there is a nexus, or link, between the current disability and the Veteran's service. The Veteran was afforded a VA shoulder and arms conditions examination in March 2015. However, at that time, the VA examiner found no objective medical evidence on the day of the exam or in the Veteran's file to support a current or chronic right shoulder diagnosis. The examiner noted negative right shoulder imaging and normal range of motion. As a result of the examination, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that during service, the condition was acute only, and there is no evidence of chronicity of care; therefore, a nexus has not been established. See March 2015 VA Shoulder and Arm Conditions examination report. The Veteran was afforded another shoulder and arms conditions examination in September 2018. During this examination, the examiner noted diagnoses of a right labral tear and right AC joint osteoarthritis. The Veteran reported pain with motion above horizontal and against resistance and noted that to date his treatment had included conservative care. The Veteran reported functional loss or impairment as, due to pain, his bilateral shoulder range of motion and physically demanding activities are limited. As a result of the examination, the examiner opined that, with respect to the right shoulder, the claimed condition is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's service-connected condition. The examiner explained that a prior diagnosis and rated extensive trauma with residuals were evident in left shoulder examination. Due to left shoulder limitations, compensatory and excessive usage of right shoulder has been necessary since 2007. Findings in the right shoulder are the result of the compensatory overuse of the right shoulder. As a result, a secondary service connection for right labral tear with AC-DJD can be verified. See September 2018 VA examination report. Weighing the Veteran's credible statements and the positive nexus opinion, the Board finds that it is at least as likely as not that the Veteran's right shoulder disability is etiologically related to his service-connected left shoulder disability. Accordingly, the claim of entitlement to service connection for a right shoulder disability secondary to the service-connected left shoulder disability is granted. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Reports of examination should be reconciled with the whole recorded history of each disability so that the current rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Entitlement to an increased initial rating for kidney stones The Veteran's kidney condition is currently rated as noncompensable under Diagnostic Code (DC) 7508 for nephrolithiasis. The Veteran contends that he should be entitled to an increased initial rating for this condition. Under 38 C.F.R. § 4.115b, DC 7508, nephrolithiasis is to be rated as hydronephrosis, DC 7509, except a 30 percent disability rating is warranted for recurrent stone formation requiring one of more of the following: (1) diet therapy; (2) drug therapy; (3) invasive or non-invasive procedures more than two times per year. Under DC 7509, a 10 percent disability rating is warranted for only an occasional attack of colic, not infected and not requiring catheter drainage. A 20 percent disability rating is warranted for frequent attacks of colic, requiring catheter drainage. A 30 percent disability rating is warranted for frequent attacks of colic with infection (pyonephrosis), kidney function impaired. Severe hydronephrosis is rated as renal dysfunction under 38 C.F.R. § 4.115a. The Veteran was afforded a VA kidney conditions examination in March 2015 to assess the severity of his kidney condition, diagnosed as nephrolithiasis. At that time, the Veteran reported an onset of right flank pain in 2001 and a diagnosis of kidney stones. He further reported that he had multiple lithotripsy procedures, with the last in August 2008. The Veteran reported that he takes continuous mediation for the condition. The examiner reported the Veteran did not have any signs or symptoms due to renal dysfunction, including proteinuria, edema, anorexia, weight loss, generalized poor health, lethargy or weakness due to renal dysfunction, or markedly decreased function of other organ symptoms. Additionally, the examiner noted the Veteran had a history of kidney, ureter, and bladder calculi that required invasive or noninvasive procedures no more than one time per year. Diet therapy was not indicated on examination, but the Veteran's drug therapy was noted. The examiner indicated there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran's kidney condition, diagnosed as nephrolithiasis. See March 2015 VA Kidney Conditions examination report. The record includes a Disability Benefits Questionnaire (DBQ) provided by the Veteran that was completed by his private physician, Dr. R.F., in April 2015 which notes a diagnosis of kidney stones in 2006. The physician noted a history of urethral and bladder calculi as well as treatment for recurrent stone formation including diet therapy beginning in June 2006 and drug therapy beginning in September 2008. See April 2015 DBQ. The record includes another DBQ provided by the Veteran that was completed by another private physician, Dr. S.B., in June 2015 which notes a diagnosis of nephrolithiasis in 2008. This physician also noted a history of urethral and bladder calculi as well as treatment for recurrent stone formation including diet and drug therapy beginning in July 2009. See July 2015 DBQ. The Veteran was afforded another VA kidney conditions (nephrology) examination in March 2017. The Veteran reported he had passed a renal stone in November 2001, he had lithotripsy treatment for a right kidney stone in June 2006, he had lithotripsy treatment for two left kidney stones in August 2006, and he had lithotripsy treatment for a left kidney stone in August 2008. The Veteran reported that his treatment plan included taking continuous medication for the condition. The examiner reported the Veteran did not have any signs or symptoms due to renal dysfunction, including persistent proteinuria, hematuria, or GFR greater than 60 cc/min/1.73m2. The examiner indicated the Veteran had diet and drug therapy treatment for recurrent stone formation in the kidney (urolithiasis). The examiner reported the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections, or benign or malignant neoplasm or metastases, or any other pertinent physical finding, complications, conditions, signs or symptoms related to his service-connected renal condition. See March 2017 VA Kidney Conditions DBQ. In consideration of the evidence of record, the Board finds that the Veteran is entitled to an initial disability rating of 30 percent under DC 7508 for the entire period on appeal for nephrolithiasis. The Board observes that the record consistently indicates that the most recent invasive or non-invasive treatment for recurrent stone formation was in 2008. The Board also observes that the March 2015 VA examination did not indicate diet therapy for recurrent stone formation. However, the April 2015 and June 2015 DBQs completed by Dr. R.F. and Dr. S.B. both indicated the Veteran's treatment plan had included both diet and drug therapy, and the March 2017 VA examination also noted the Veteran's diet therapy since 2001 and drug therapy since 2006. The Veteran provided sworn testimony indicating as much as well at his Board hearing. The Board finds that such evidence supports a finding that the Veteran's disability has required both diet and drug therapy to treat recurrent stone formation for the entire period on appeal, warranting an initial 30 percent disability rating under 38 C.F.R. § 4.115b, DC 7508. To this extent only, the appeal is granted. The question of whether a rating higher than 30 percent may be granted is discussed in the Remand section below. (Continued on Next Page) REASONS FOR REMAND Entitlement to an initial rating greater than 30 percent for a kidney stone disorder is remanded. As noted above, the Veteran's attorney attempted to submit additional medical evidence in April 2021 that was located on a computer disc. It is unclear whether the disc was not attached to the April 2021 cover letter, whether the disc was unreadable or defective, or whether the files were simply not uploaded to the Veteran's claims file. Notably, in his cover letter, the Veteran's attorney highlighted the fact that some of the submitted records included VA treatment records that are not already on file. As such, on remand, all outstanding VA treatment records should be obtained by VA and associated with the file. The Veteran and his attorney should also be afforded another opportunity to submit, or authorize VA to obtain on the Veteran's behalf, any records of private care relevant to the remaining issue on appeal. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding records of VA care dating from September 2018 to the present. 2. Send the Veteran and his attorney a letter explaining that the medical evidence submitted on a computer disc to VA in April 2021 has not been associated with the file, and invite the Veteran to re-submit such evidence, or authorize VA to obtain records of private care on his behalf. Take all appropriate steps to obtain identified records. 3. Then, after considering whether any newly added evidence would require an updated assessment as to the severity of the Veteran's service-connected kidney stone disability, readjudicate the issue of entitlement to an initial rating greater than 30 percent for service-connected kidney stones. If the benefit sought remains denied, in whole or in part, send the Veteran and his attorney a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.