Citation Nr: 21042803 Decision Date: 07/14/21 Archive Date: 07/13/21 DOCKET NO. 15-39 341 DATE: July 14, 2021 ORDER Entitlement to service connection for a cervical spine disorder is granted. The appeal seeking service connection for gout is dismissed. The appeal seeking service connection for hypertension is dismissed. The appeal seeking service connection for low sperm count is dismissed. The appeal seeking service connection for lichen planus is dismissed. The appeal seeking service connection for left knee arthritis is dismissed. The appeal seeking service connection for a bilateral wrist disorder, to include osteoarthritis, is dismissed. The appeal seeking a disability rating higher than 10 percent for a right knee disability is dismissed. The appeal seeking a compensable disability rating for bilateral wrist carpal tunnel syndrome scars is dismissed. REMANDED Entitlement to service connection for peripheral neuropathy of the right and left lower extremities is remanded. FINDINGS OF FACT 1. Giving the Veteran the benefit of the doubt, his cervical spine disorder is related to in-service event, injury, or disease. 2. On June 21, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal of all claims before the Board, except the claims for service connection for a cervical spine disorder and service connection for bilateral lower extremities neuropathy. 3. The claims on appeal before the Board, other than for service connection for a cervical spine disorder and bilateral lower extremities neuropathy, included claims for service connection for gout, hypertension, low sperm count, lichen planus, right and left wrist osteoarthritis, a left knee disorder, and claims for higher ratings for a right knee disorder and bilateral wrist carpal tunnel syndrome scars. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal of the claims for service connection for gout, hypertension, low sperm count, lichen planus, right and left wrist osteoarthritis, and a left knee disorder; as well as, the claims for higher ratings for a right knee disorder and bilateral wrist carpal tunnel syndrome scars have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from May 1963 to August 1983. The Veteran had a DRO hearing in July 2015 and a hearing before the undersigned Veterans Law Judge in October 2018. In March 2019, the Board, in pertinent part, reopened a claim for service connection for a cervical spine disorder and denied the service connection claim. The Board also remanded the claim for service connection for bilateral lower extremities neuropathy, to include as secondary to diabetes mellitus and polycythemia, as well as, the other claims on appeal. 1. Entitlement to service connection for a cervical spine disorder. The Veteran contends that he has had a cervical spine disorder since an in-service fall, per his July 2015 DRO hearing testimony. During his October 2018 Board hearing testimony, he indicated it occurred at the same time he injured his service-connected shoulder. He has claimed to have had a stiff neck since service. The Board concludes that the Veteran has a current disability that is related to in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Per the January 2013 VA examination, show the Veteran has a current diagnosis of a cervical spine disorder, to include degenerative disc disease and degenerative joint disease. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. Prior to his August 1983 separation from service, service treatment records do not document cervical complaints made around the time of his right shoulder injury. However, there is an April 1982 complaint of left cervical muscle spasm. An unclearly dated service treatment record also noted that the Veteran had cervical muscle spasm and complained of pain; however, there was a full range of motion. Cervical X-ray was within normal limits. An April 1982 Air Force Health Study noted that general physical examination revealed no specific abnormalities. In his December 1983 VA examination, although the Veteran complained of his right shoulder, he did not make a complaint regarding his neck. An August 1985 VA cervical spine X-ray (transcribed in November 1986), noted mild narrowing of the intervertebral disc space at C6-7, but no other pathology of the cervical spine. Subsequent medical records are generally silent as to complaints of, or treatment for, a cervical spine disorder. A June 2000 private medical record noted a report of neck pain and muscle spasm, but that "'[s]ympoms have been present the last week and a half ever since...moving some hay bales and felt something tight...in his neck." The follow-up evaluation noted that muscle spam was much improved. An October 2002 letter, Dr. T. J. reported that "arthritis changes that are newly diagnosed in his neck." An August 2002 X-ray report showed degenerative disc disease at C5-C7. In January 2013, the Veteran underwent a VA examination, which the parties to the March 2020 JMPR found to have an inadequate. As such, the Board will not further discuss that opinion. In a June 2021 private medical opinion, Dr. P.C. found that the Veteran's in-service fall was, more likely than not, the initial injury which started the degenerative process and the Veteran's subsequent history was completely consistent with the next phase of the degenerative process. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current cervical spine disorder is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a cervical spine disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. The claims for service connection for (a) gout, (b) hypertension, (c) low sperm count, (d) lichen planus, (e) right and left wrist osteoarthritis, (f) a left knee disorder, and claims for higher ratings for (g) a right knee disorder and (h) bilateral wrist carpal tunnel syndrome scars. 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. In the present case, the appellant, through his authorized representative, has withdrawn the issues of service connection for (a) gout, (b) hypertension, (c) low sperm count, (d) lichen planus, (e) right and left wrist osteoarthritis, (f) a left knee disorder, and claims for higher ratings for (g) a right knee disorder and (h) bilateral wrist carpal tunnel syndrome scars. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the right and left lower extremities is remanded. The Board previously remanded to obtain a new VA examination for the claim for bilateral lower extremities peripheral neuropathy. The Board had noted that conflicting medical evidence, including a September 2011 VA examination that found no diagnosis of peripheral neuropathy of the bilateral lower extremities, a January 2013 clarification that found small fiber sensory of the bilateral lower extremity of unknown cause and thus idiopathic small fiber sensory peripheral neuropathy, a September 2012 VA examination that did not find diabetic peripheral neuropathy), and March 2017 VA examination that found peripheral neuropathy of the bilateral lower extremities. Since that time, a new January 2020 VA examination found that the Veteran does not actually have diabetes mellitus, explaining that the prior September 2012 VA examination diagnosing it had been incorrect. This finding is also at least partially supported in the VA medical records. Also, although the June 2021 private medical opinion of Dr. P.C. found that the Veteran more likely had diabetic neuropathy over tarsal tunnel syndrome, that provider did not make an opinion on the existence of underlying diabetes mellitus, but appears to rely on prior diagnosis that has been called into question. The Board thus finds a new VA medical opinion is necessary to clarify this matter. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for the claim for service connection for a bilateral lower extremity peripheral neuropathy, to include determining whether the Veteran has underlying diabetes mellitus. All necessary testing should be performed. The examiner must review the 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: The examiner must determine whether the Veteran currently has neuropathy of the right and/or left lower extremity and clarify each diagnosis. As noted in the REMAND section above, the Veteran has had a complicated history regarding a diagnosis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including his (a) October 2019 Board hearing report of symptoms prior to his 1983 discharge and (b) in-service exposure to Agent Orange. The examiner should also opine whether it is at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression by a service-connected disability. The Veteran claims it is due to the now service-connected polycythemia and/or diabetes mellitus. In determining the Veteran's diagnosis and secondary service connection, the examiner should verify whether the Veteran has underlying diabetes mellitus. All necessary laboratory testing to verify a diagnosis of diabetes mellitus should be performed. Provide a rationale to support the opinion(s). (Continued on the next page) The claims file should be reviewed to include service treatment records, VA medical records, private medical records (including the June 2021 private medical opinion of Dr. P.C.), lay evidence such as the September 2012 lay statement, medical articles submitted (including articles received in October 2018), and prior VA examinations (as noted in the above REMAND section). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.