Citation Nr: 21030836 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-18 791 DATE: May 19, 2021 ORDER Service connection for cervical degenerative disc disease (DDD) is granted. Service connection for right upper extremity (RUE) peripheral neuropathy (PN) is granted. REMANDED Entitlement to service connection for a left shoulder disorder, claimed as secondary to cervical DDD, is remanded. Entitlement to service connection for a hernia is remanded. Entitlement to an initial rating in excess of 10 percent prior to October 15, 2020, and in excess of 20 percent thereafter for lumbosacral strain, DDD, and intervertebral disc syndrome (IVDS) is remanded. Propriety of the separate rating associated for radiculopathy of the left lower extremity (LLE), evaluated as 10 percent disabling as of March 31, 2017, is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his currently diagnosed cervical DDD is related to his miliary service. 2. Resolving all doubt in the Veteran's favor, his currently diagnosed RUE PN is proximately due to his cervical DDD. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical DDD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for RUE PN have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1, 1988, to July 23, 1992, which is considered honorable for VA purposes. He had additional active service from July 24, 1992, to November 29, 1996; however, such has been determined to be dishonorable for VA purposes and is a bar to VA benefits. See June 2012 Administrative Decision. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2012, January 2014, and April 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2018, the Board remanded the claims on appeal as well as a claim for service connection for a right shoulder disorder. While on remand, a January 2021 rating decision awarded service connection for right shoulder strain and acromioclavicular joint osteoarthritis. As such represents a full grant of the benefits sought with respect to the claim for service connection for a right shoulder disorder, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Additionally, in such rating decision, the Agency of Original Jurisdiction (AOJ) awarded an increased rating of 20 percent for the Veteran's back disability, which was recharacterized as lumbosacral strain, DDD, and IVDS, effective October 15, 2020, and a separate rating for radiculopathy of the LLE, evaluated as 10 percent disabling as of March 31, 2017. While the Veteran has not challenged the propriety of the assigned effective date or rating for such separate rating, such matters are part and parcel of his claim for an increased rating for his back disability. Thus, the Board has included such issue on the title page of this decision. See General Rating Formula for Diseases and Injuries of the Spine, Note (1); Chavis v. McDonough, No. 18-2928 (Vet. App. Apr.16, 2021). The case now returns for further appellate review. The Board notes that a May 2019 statement of the case addressed the issue of whether new and material had been received in order to reopen a claim of entitlement to service connection for a hernia and the Veteran filed a timely substantive appeal in June 2019. However, such issue was already on appeal. The Veteran has also perfected an appeal of the issue of whether the reduction of the rating for pseudofolliculitis barbae from 10 percent to noncompensable, effective December 1, 2018, was proper. However, as he requested a Board hearing before a Veterans Law Judge in connection with such appeal, such issue will be the subject of a separate Board decision issued at a later date, if otherwise in order. The Board also observes that an August 2017 rating decision denied service connection for an acquired psychiatric disorder and the Veteran entered a notice of disagreement in October 2017. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claim is still being developed by the AOJ. As a result, the Board declines jurisdiction over this issue until such time as an appeal to the Board is perfected. 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a disability manifested by tingling and numbness of the right fingers and arm, claimed as secondary to a neck disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The Veteran contends that he has a current neck disorder that resulted from the same incident in which he injured his back, which is currently service-connected. In this regard, his service treatment records (STRs) reveal that, in September 1988, he slipped and fell on the galley and complained of back pain. At the March 2018 Board hearing, the Veteran testified that he also reported his neck hurt at the time, but his treatment providers did not concentrate on it. Also of record is a March 2018 statement from B.M., who stated that he witnessed the Veteran fall onboard a ship sometime around 1991-1992, injuring his back and neck region. The Veteran also contends that he has a disability manifested by tingling and numbness of the right fingers and arm that is caused or aggravated by his neck disorder. Pursuant to the November 2018 remand, the Veteran was afforded a VA examination in October 2020. At such time, the examiner noted diagnoses of cervical DDD and degenerative arthritis. Further, while she opined that the Veteran's cervical DDD was not diagnosed in service, she found that such disorder was at least as likely as not incurred in or caused by or had its onset in, or is otherwise related to the Veteran's period of honorable service, to include his in-service fall as documented by B.M. In January 2021, the examiner clarified that the Veteran's neck disorder began after his in-service fall per B.M.'s statement and the Veteran's treatment records. The examiner further opined it was at least as like as not that the Veteran's diagnosed RLE PN was directly related to a head injury incurred in August 1993, which was during his period of dishonorable service. However, she also indicated that it was medically feasible that the Veteran's RUE PN was proximately due to his neck disorder and cited to an article indicating that neck pain or pressure on a nerve root or spinal cord by herniated disc or bone spur may result in pain, numbness, weakness, or tingling in the arm, fingers, or hand. She further noted that the Veteran's RUE PN had progressed beyond its natural progression as his reported current symptoms of numbness and tingling were related to his neck disorder. Therefore, the Board resolves all doubt in the Veteran's favor and finds that his neck disorder, currently diagnosed as cervical DDD, is related to his military service, and his RUE PN is proximately due to such neck disorder. Thus, service connection for such disorders is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 3. Entitlement to service connection for a left shoulder disorder, claimed as secondary to cervical DDD. Pursuant to the November 2018 remand, the Veteran was afforded a VA examination in October 2020. At such time, the examiner noted diagnoses of left shoulder strain and acromioclavicular joint osteoarthritis. She opined that it was less likely as not that the Veteran's left shoulder disorder was related to his neck disorder as acromioclavicular degenerative joint disease (DJD) was a disease of the shoulder joint and had no physiological association with the neck disorder. She also opined that that the Veteran's left shoulder disorder was not aggravated beyond it natural progression by his neck disorder, but provided a rationale that did not make sense as she noted the Veteran reported his symptoms had progressed as reported during the VA examination. Thus, the Board finds that a remand is warranted to obtain an addendum opinion that addresses such concern. 4. Entitlement to service connection for a hernia. Pursuant to the November 2018 remand, the Veteran underwent a VA examination in connection with his claim for service connection for a hernia. At such time, the examiner found that he did not have a current diagnosis of a hernia as he reported no symptoms of a hernia and she could not confirm which side his hernia was located. She also noted that the Veteran stated it was found on a routine exam, but per a review of the record, he did not have a current or had never had a diagnosis of a hernia. However, as noted in the November 2018 remand, a diagnosis of inguinal hernia was noted in a June 2017 private treatment record. The examiner opined that the Veteran's was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, she noted that there was no was no hernia in 1989, but an inguinal hernia was diagnosed in September 1995. However, she also opined that it was at least as likely than not that any currently diagnosed condition related to the Veteran's claimed hernia disorder was at least as likely as not incurred in, caused by, had its onset during, or is otherwise related to his period of honorable service, to include his in-service complaints and treatment referable to bilateral inguinal hernia as noted in 1988. In this regard, the examiner stated that the Veteran was diagnosed with bilateral inguinal hernias in 1988 and a nexus had been established, but there was insufficient evidence to confirm a diagnosis of an umbilical hernia. She further noted that there was clear and unmistakable evidence that the bilateral inguinal hernia did not pre-exist his service as such was diagnosed after the Veteran's entry into service. However, the Veteran's STRs reflect a notation of an umbilical, rather than inguinal hernia, in May 1988, and July 1989, August 1989, and September 1999 STRs reflect a possibility of an inguinal hernia. Thus, as it is unclear whether the Veteran has a current inguinal hernia and, if so, whether such disorder is related to his military service, the Board finds that a remand is warranted to obtain an addendum opinion that addresses such concerns. 5. Entitlement to an initial rating in excess of 10 percent prior to October 15, 2020, and in excess of 20 percent thereafter for lumbosacral strain, DDD, and IVDS. 6. Propriety of the separate rating associated for radiculopathy of the LLE, evaluated as 10 percent disabling as of March 31, 2017. Pursuant to the November 2018 remand, the Veteran was afforded a VA examination in connection with his claim for an increased rating for his back disability in October 2020. At such time, the examiner noted diagnoses of lumbosacral strain, DDD, DJD, and IVDS. She indicated that the Veteran had unfavorable ankylosis of the entire spine, but also found that he had normal range of motion of his spine. Thus, the Board finds that a remand is necessary to obtain an addendum opinion to reconcile such findings and clarify whether the Veteran has ankylosis of the spine. Additionally, a March 2019 private treatment record reveals that the Veteran thought he had left foot drop and an MRI and EMG/NCS was ordered to assess the radiculopathy and foot drop on the left side; however, the results of such testing is not of record. Therefore, on remand, such records should also be obtained. The matters are REMANDED for the following action: 1. The Veteran should be requested to submit or authorize VA to obtain his records from Atrium Health in Charlotte, North Carolina, records reflecting the results of the MRI and EMG/NCS referable to his LLE radiculopathy and claimed left foot drop ordered in March 2019. Following the receipt of any necessary authorization from the Veteran, attempt to obtain such outstanding records by making at least two (2) attempts to obtain them. If the records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Return the record, to include a copy of this remand, to the VA examiner who conducted the Veteran's October 2020 shoulder examination. If she is not available, the record should be provided to an appropriate clinician so as to render the requested opinion. Specifically, following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left shoulder disorder, currently diagnosed as strain and acromioclavicular joint osteoarthritis, was aggravated by his service-connected cervical DDD. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. 3. Return the record, to include a copy of this remand, to the VA examiner who conducted the Veteran's October 2020 hernia examination. If she is not available, the record should be provided to an appropriate clinician so as to render the requested opinion. (A) After a review of the record, the examiner should clarify whether the Veteran has a current diagnosis of an inguinal hernia that has been present at any time since February 2013, or in close proximity thereto, even if such is asymptomatic or has resolved. If he or she finds that the Veteran does not have an inguinal hernia, such determination should be reconciled with the June 2017 private treatment record reflecting such diagnosis. (B) If the examiner determines that the Veteran has a current diagnosis of inguinal hernia, he or she is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder had its onset during, or is otherwise related to, the Veteran's period of honorable service, to include his in-service complaints and treatment referable to an inguinal hernia. Specifically, the examiner should consider and discuss the July 1989, August 1989, and September 1991 STRs indicating the Veteran may have had an inguinal hernia. A rationale for any opinion offered should be provided. 4. Return the record, to include a copy of this remand, to the VA examiner who conducted the Veteran's October 2020 back examination. If she is not available, the record should be provided to an appropriate clinician so as to render the requested opinion. Specifically, following a full review of the record, the examiner should reconcile her determination that the Veteran's back disability results in normal range of motion with her notation that the Veteran has unfavorable ankylosis of the entire spine. Specifically, the examiner should clarify whether the Veteran has ankylosis of the spine or not. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark, 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.