Citation Nr: 21039775 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-15 266 DATE: July 1, 2021 ORDER The appeal for entitlement to service connection for a left wrist disability is dismissed. The appeal for entitlement to an earlier effective date for an increased 20 percent rating for degenerative arthritis of the lumbar spine is dismissed. The appeal for entitlement to an earlier effective date for the award of service connection for degenerative arthritis of the cervical spine is dismissed. The appeal for entitlement to an earlier effective date for the award of service connection for left lower radiculopathy is dismissed. The appeal for entitlement to an earlier effective date for the award of service connection for right lower radiculopathy is dismissed. The appeal for entitlement to a total temporary rating for bilateral open angle glaucoma is dismissed. REMANDED Entitlement to service connection for right foot neuropathy is remanded. Entitlement to service connection for left foot neuropathy is remanded. Entitlement to service connection for sleep apnea, to include as due to environmental exposures in Southwest Asia and/or as secondary to service-connected back, chronic fatigue syndrome, and/ or depressive disorder disabilities and/or due to medications for treatment of service-connected disabilities. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the cervical spine is remanded. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine is remanded. Entitlement to a rating in excess of 30 percent for bilateral primary open angle glaucoma is remanded. Entitlement to a compensable rating for chronic fatigue syndrome is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis from December 15, 2013 is remanded. Entitlement to special monthly compensation (SMC) based at the housebound rate from December 15, 2013 is remanded. FINDING OF FACT Prior to promulgation of a decision, during the March 2021 Board hearing, the Veteran and his attorney explicitly, unambiguously, and with full understanding of the attendant consequences, withdrew his appeal regarding the issues of entitlement to service connection for a left wrist disability, entitlement to earlier effective dates for an increased 20 percent rating for degenerative arthritis of the lumbar spine and the award of service connection for degenerative arthritis of the cervical spine and bilateral lower extremity radiculopathy, and entitlement to a temporary total rating for bilateral primary open angle glaucoma. CONCLUSION OF LAW The criteria for withdrawal of the appeal for service connection for a left wrist disability, entitlement to earlier effective dates for an increased 20 percent rating for degenerative arthritis of the lumbar spine and the award of service connection for degenerative arthritis of the cervical spine and bilateral lower extremity radiculopathy, and entitlement to a temporary total rating for bilateral primary open angle glaucoma are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1992 to January 1996, including service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2014, January 2018, and March 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the March 2014 rating decision, the RO granted service connection for degenerative arthritis of the cervical spine and assigned a noncompensable rating, effective April 10, 2013, and continued a 10 percent rating for degenerative arthritis of the lumbar spine and a noncompensable rating for chronic fatigue syndrome. In a February 2018 rating decision, the RO increased the rating for degenerative arthritis of the lumbar spine to 20 percent, effective July 7, 2016, increased the rating for degenerative arthritis of the cervical spine to 10 percent, effective April 10, 2013, and awarded service connection for bilateral lower extremity radiculopathy associated with degenerative arthritis of the lumbar spine and assigned 10 percent ratings, effective July 7, 2016. In March 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. Withdrawal of Claims 1. The appeal for entitlement to service connection for a left wrist disability is dismissed. 2. The appeal for entitlement to an earlier effective date for an increased 20 percent rating for degenerative arthritis of the lumbar spine is dismissed. 3. The appeal for entitlement to an earlier effective date for the award of service connection for degenerative arthritis of the cervical spine is dismissed. 4. The appeal for entitlement to an earlier effective date for the award of service connection for left lower radiculopathy is dismissed. 5. The appeal for entitlement to an earlier effective date for the award of service connection for right lower radiculopathy is dismissed. . 6. The appeal for entitlement to a total temporary rating for bilateral open angle glaucoma is dismissed. In the present case, the Veteran and his attorney, during the March 2021 Board hearing, advised that he wished to withdraw his appeal concerning his service connection claim for a left wrist disability, entitlement to earlier effective dates for an increased 20 percent rating for degenerative arthritis of the lumbar spine and the award of service connection for degenerative arthritis of the cervical spine and bilateral lower extremity radiculopathy, and entitlement to a temporary total rating for bilateral primary open angle glaucoma. See March 2021 Board Hearing Transcript at 2, 13; 38 C.F.R. § 20.205. The evidence demonstrates that the Veteran understood the consequences of the withdrawal at the time of the hearing, as all subsequent submissions of record pursue his remaining claims to the exclusion of the claims of entitlement to service connection for a left wrist disability, entitlement to earlier effective dates for an increased 20 percent rating for degenerative arthritis of the lumbar spine and the award of service connection for degenerative arthritis of the cervical spine and bilateral lower extremity radiculopathy, and entitlement to a temporary total rating for bilateral primary open angle glaucoma. The Veteran's attorney also made the withdrawal with the Veteran at the hearing, and the attorney is in a position to know the full consequences of such a withdrawal. Acree v. O'Rourke, 891 F.3d 1009, 1013 (Fed. Cir. 2018). Accordingly, he has withdrawn the appeal and, hence, there remains no allegation of error of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review the issues of entitlement to service connection claim for a left wrist disability, entitlement to earlier effective dates for an increased 20 percent rating for degenerative arthritis of the lumbar spine and the award of service connection for degenerative arthritis of the cervical spine and bilateral lower extremity radiculopathy, and entitlement to a temporary total rating for bilateral primary open angle glaucoma and they are dismissed. REASONS FOR REMAND 7. Entitlement to service connection for right foot neuropathy is remanded. 8. Entitlement to service connection for left foot neuropathy is remanded. The Veteran asserts that his bilateral foot neuropathy was incurred during service due to engaging in physical activities while wearing boots in bootcamp. To this end, he maintains that developed feet problems, including pain and a burning sensation, as a result and that the sensation is different than the radiculopathy in his neck and back and has continued since service. The Veteran was afforded a VA feet examination in April 2020. However, the examiner's opinion is inadequate, as it relied on an inaccurate factual premise when rendering negative opinion and failed to conduct a nerve study as mentioned was necessary in the report. Thus, a new VA examination with an NCV/EMG study and an addendum opinion is warranted on remand that adequately addresses these issues. 9. Entitlement to service connection for sleep apnea, to include as due to environmental exposures in Southwest Asia and/or as secondary to service-connected back, chronic fatigue syndrome, and/ or depressive disorder disabilities and/or due to medications for treatment of service-connected disabilities. The Veteran maintains that his sleep apnea was incurred during service. Specifically, he asserts that he began to have sleep problems during service including his wife and fellow servicemen witnessing him snoring loudly at night. See March 2021 Board Hearing Transcript at 18-19. To this end, he maintains that he experienced sleep problems since that time. Additionally, he asserts that his sleep apnea is due to environmental exposures in Southwest Asia and/or as secondary to service-connected back, chronic fatigue syndrome and/or depressive disorder and/or due to medications for treatment of any service-connected disabilities. Id. VA and private examination and treatment records show a diagnosis of obstructive sleep apnea. Thus, given the current diagnosis and the Veteran's lay statements, the Board finds a VA examination and medical opinion is warranted on remand to determine the etiology his sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 10. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the cervical spine is remanded. 11. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine is remanded. 12. Entitlement to a rating in excess of 30 percent for bilateral primary open angle glaucoma is remanded. 13. Entitlement to a compensable rating for chronic fatigue syndrome is remanded. 14. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. 15. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. During the March 2021 Board hearing, the Veteran indicated that his neck, chronic fatigue syndrome, and bilateral lower extremity radiculopathy disabilities have continued to worsen in exacerbation, frequency, and severity of symptoms that are not currently reflected by the evidence of record. He recently submitted records showing placement of a cervical spinal cord stimulator. See April 2021 private treatment records. As such, updated VA examinations are needed, as the January 2013 and December 2017 VA examinations may no longer be reflective of the Veteran's current level or nature of his disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997). Updated treatment records should also be secured, and the Board will defer adjudication of the glaucoma and lumbar spine increased rating claims pending such development. Additionally, the Board notes that the Veteran's attorney indicated he would be willing to withdraw the back claim from appellate consideration, if a TDIU were to be awarded from December 15, 2013. However, as the Board is not able to award an extraschedular TDIU in the first instance, it will continue to defer action on that claim pending development indicated below. 16. Entitlement to a TDIU on an extraschedular basis is remanded. 17. Entitlement to SMC based at the housebound rate from December 15, 2013 is remanded. The issue of TDIU remains in appellate status from August 14, 2012, in conjunction with the claim for an increased rating for his lumbar spine disability. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The evidence of record indicates that the Veteran is unemployable due to his service-connected lumbar spine disability. Thus, as the Board cannot make an extraschedular determination in the first instance, remand for referral for extraschedular consideration is warranted. As entitlement to SMC is inextricably intertwined with the TDIU claim, action on this claim is deferred pending this development. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, to include from Optim Neurosurgery in Macon, Georgia. 3. Then schedule the Veteran for a VA examination with a different examiner than the April 2020 examiner to determine the nature and etiology of any bilateral neurological foot disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should address the following: (a) Conduct an NCV/EMG study, as referenced in the April 2020 VA examination report. (b) Diagnose any bilateral foot neurological disability present since November 2017, even if resolved. (c) For each disability diagnosed in part (b), to include peripheral pedal neuropathy (see April 2019 VA podiatry note), please opine on whether it is at least likely as not (a 50 percent or greater probability) that such disability: (1) had its onset in service or is otherwise related to service, to include as a result of the cumulative impact of recurring injuries from wearing boots and engaging in physical activity during bootcamp. In addressing this opinion, please assume as true the Veteran's report that his bilateral foot pain and burning sensation began as a result of wearing boots and engaging in physical activity at bootcamp and has continued since that time, and determine whether a nexus to service is "medically plausible" based on the same; (2) is proximately due to the Veteran's lumbar spine disability and/or associated radiculopathy, to include or medications used to treat the same; or (3) has been aggravated (worsened) by the Veteran's lumbar spine disability and/or associated radiculopathy, to include or medications used to treat the same A complete rationale should be provided for all opinions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Then schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should address the following: (a) For diagnosed obstructive sleep apnea (see March 2014 and July 2014 VA treatment records and October 2016 private treatment records), please opine on whether it is at least likely as not (a 50 percent or greater probability) that such disability had its onset in service, is related to presumed environmental exposures in Southwest Asia, or is otherwise related to service. If no diagnosis of obstructive sleep apnea is warranted, please reconcile your findings with diagnoses of the same in the above-mentioned VA and private treatment records. (b) In addressing this question, please assume as true the Veteran's lay statements that he began to experience sleep problems during service, including loud snoring witnessed by his wife and fellow servicemen, and that he continued to experience sleep problems since that time as well as conceded environmental exposures and provide an opinion on whether a nexus to service is "medically plausible" based on the same. Otherwise, the opinion will be rendered inadequate. See March 2021 Board Hearing Transcript at 18. (c) Please opine on whether it is at least likely as not (a 50 percent or greater probability) that such disability: (i) is proximately due to service-connected degenerative arthritis of the lumbar spine; (ii) has been aggravated (worsened) by service-connected degenerative arthritis of the lumbar spine; (iii) is proximately due to service-connected chronic fatigue syndrome; (iv) has been aggravated (worsened) by service-connected chronic fatigue syndrome; (v) is proximately due to service-connected depressive disorder; (vi) has been aggravated (worsened) by service-connected depressive disorder; (vii) is proximately due to medications used to treat any service-connected disabilities; or (viii) has been aggravated (worsened) by medications used to treat any service-connected disabilities. In addressing questions (c)(i)- (c)(viii) the examiner should note that two separate opinions are required: one for proximate causation and one for aggravation for each primary disability. Additionally, the examiner should note that the primary disability (back, chronic fatigue syndrome, depressive disorder, and medications used to treat service-connected disabilities) need not be service-connected, or even diagnosed, at the time sleep apnea is incurred and reliance on this fact will render the opinion inadequate. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then schedule the Veteran for a VA examination to determine the current nature and severity of his neck disability. The claims file should be made available to and reviewed by the examiner and all findings should be reported in detail. (a) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and, if applicable (5) with range of motion 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. (b) Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's neck disability due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. (c) Determine whether any separate neurological disability, including radiculopathy, is present in the bilateral upper extremities. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 6. Then schedule the Veteran for a VA examination to determine the current nature and severity of his chronic fatigue syndrome. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. All findings should be reported in detail, including any functional effects associated with the Veteran's chronic fatigue syndrome. 7. Then schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral lower extremity radiculopathy. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. All findings should be reported in detail, including any functional effects associated with the Veteran's bilateral lower extremity radiculopathy. 8. Refer the issue of entitlement to an extraschedular TDIU since August 14, 2012, to the Director of Compensation Service. The examiner's attention is drawn to the December 2013 Social Security Administration determination. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.