Citation Nr: 22012166 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-48 669 DATE: March 2, 2022 ORDER Entitlement to service connection for gaze convergence palsy is dismissed. Entitlement to an initial compensable rating for bilateral cataracts with dry eye syndrome is dismissed. Entitlement to an initial rating higher than 20 percent for right foot plantar fasciitis is dismissed. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for dysphagia is remanded. Entitlement to service connection for right wrist carpal tunnel syndrome is remanded. Entitlement to service connection for left wrist tunnel syndrome is remanded. Entitlement to service connection for right arm disability is remanded. Entitlement to an initial compensable rating for allergic rhinitis is remanded. Entitlement to an initial rating higher than 10 percent for asthma is remanded. Entitlement to an initial rating higher than 10 percent for a cervical spine disability is remanded. Entitlement to an initial rating higher than 10 percent for a lumbosacral spine disability is remanded. Entitlement to an initial rating higher than 30 percent for multiple sclerosis with left eye optic neuritis is remanded. Entitlement to an initial rating higher than 30 percent for dysthymic disorder is remanded. FINDING OF FACT At the videoconference hearing in April 2021, the Veteran stated he wished to withdraw his appeals seeking entitlement to service connection for gaze convergence palsy, an initial compensable rating for bilateral cataracts with dry eye syndrome, and an initial rating higher than 20 percent for right foot plantar fasciitis. CONCLUSION OF LAW 1. The criteria for dismissal of entitlement to service connection for gaze convergence palsy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of entitlement to an initial compensable rating for bilateral cataracts with dry eye syndrome have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. The criteria for dismissal of entitlement to an initial rating higher than 20 percent for right foot plantar fasciitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1999 to November 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. 1. Entitlement to service connection for gaze convergence palsy, an initial compensable rating for bilateral cataracts with dry eye syndrome, and an initial rating higher than 20 percent for right foot plantar fasciitis 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. 38 C.F.R. § 19.55. In the present case, at the April 2021 Board hearing, the Veteran testified that he wished to withdraw his appeal for service connection for gaze convergence palsy, and increased ratings for bilateral cataracts with dry eye syndrome and right foot plantar fasciitis. It was explained to the Veteran that by withdrawing these appeals, VA would take no further action and that if he wanted to file for service connection or an increased rating for these same disabilities in the future, he would have to file a new claim. The Veteran was further advised that if any benefits were granted, they would be effective from the date of his new claim. The Veteran expressed understanding, and his representative also confirmed at the hearing that she had discussed the withdrawal with the Veteran beforehand and she agreed with the withdrawals. Therefore, the Veteran has withdrawn these issues from the appeal, and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. REASONS FOR REMAND The Board notes there are outstanding VA treatment records. A review of the record shows the most recent VA treatment records are from September 2017. However, the Veteran's representative has submitted additional VA treatment records indicating continued VA care and the outstanding records that may assist with the Veteran's claims. 1. Entitlement to service connection for sinusitis is remanded. At the April 2021 hearing, the Veteran testified that he had had sinus problems most of his adult life, including prior to service. He also testified, however, that his sinus problems worsened during service and noted that he had surgery during service to fix a deviated septum as well as some endoscopic sinus surgery in 2007. He also reported a diagnosis for chronic sinusitis, which was not indicated on the May 2016 VA examination (conducted prior to the Veteran's separation from service). Additional private medical records show a history of chronic sinusitis. See September 2016 private treatment record. In light of the foregoing, another VA examination is needed for a medical opinion that addresses whether the Veteran has a current sinus disability that clearly and unmistakably existed prior to service and if so, whether it was clearly and unmistakably not aggravated by service. 2. Entitlement to service connection for dysphagia is remanded. At the April 2021 hearing, the Veteran reported that he continues to have difficulty swallowing. The Veteran also contends the dysphagia is related to the service-connected multiple sclerosis. The service medical records show that Veteran experienced dysphagia during service. Although the May 2016 VA examination (which was conducted prior to his separation from service) stated the disability resolved, additional medical records show continued difficulty swallowing and frequent issues with dysphagia. See September 2016 private treatment record. In light of the foregoing, another VA examination is necessary to determine whether the Veteran has a current diagnosis of dysphagia and if so, whether it is related to the dysphagia he experienced in service or secondary to his service-connected multiple sclerosis. 3. Entitlement to service connection for right and left wrist carpal tunnel syndrome is remanded. At the April 2021 hearing, the Veteran testified that he had a diagnosis of carpal tunnel syndrome. The service medical records show that Veteran was diagnosed during service. See August 2010 service treatment record. Although the May 2016 VA examination (which was conducted prior to his separation from service) stated there was no diagnosis, additional medical records show continued complaints of numbness or tingling in the shoulder, elbow, or wrist. In light of the foregoing, another VA examination for a medical opinion is necessary. 4. Entitlement to service connection for right arm disability is remanded. At the April 2021 hearing, the Veteran testified that he experienced numbness in the right arm during service. His current symptoms began a few years again. The Veteran contends the current numbness is due the service-connected cervical spine disability, as suggested in the November 2010 service treatment record and February 2011 private treatment record. The Veteran's representative stated the Veteran was diagnosed with radiculopathy. In light of the foregoing, another VA examination is necessary to determine whether the Veteran has a current right arm disability (to include a neurological condition) that is either related to the symptoms he experienced in service or to his service-connected cervical spine disability. 5. Entitlement to an initial compensable rating for allergic rhinitis is remanded. At the April 2021 hearing, the Veteran contended his allergic rhinitis had worsened since his last VA examination and that his doctors had told him he has polyps. The May 2016 VA examination did not show any nasal polyps. As the May 2016 VA examination does not represent the current level of severity of the Veteran's disability, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo an additional VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). 6. Entitlement to an initial rating higher than 10 percent for asthma is remanded. At the May 2016 VA examination, the examiner indicated that the Veteran's asthma was stable with seasonal symptoms. However, at the April 2021 hearing, the Veteran reported he was using daily inhalers, taking oral medication, and had a rescue inhaler. As the May 2016 VA examination does not represent the current level of severity of the Veteran's disability, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo an additional VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). 7. Entitlement to a rating higher than 10 percent for a cervical spine disability is remanded. The Veteran reported constant discomfort at the April 2021 hearing. While he was unsure whether his range of motion had worsened, the pain continued and his neck tired. As the May 2016 VA examination does not represent the current level of severity of the Veteran's disability, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo an additional VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). 8. Entitlement to an initial rating higher than 10 percent for a lumbosacral spine disability is remanded. At the May 2016 VA examination, the examiner indicated the Veteran's lumbar spine disability was stable, and that surgery had been delayed due to the recent multiple sclerosis diagnosis. At the April 2021 hearing, the Veteran reported that he experienced increased pain, flare-ups, radiculopathy, and received yearly MRIs. Additional medical records show pain radiating down the right buttock. See September 2019 VA treatment record. As the May 2016 VA examination does not represent the current level of severity of the Veteran's disability, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo an additional VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). 9. Entitlement to an initial rating higher than 30 percent for multiple sclerosis with left eye optic neuritis is remanded. The Veteran has relapsing and remitting multiple sclerosis with flare-ups. The Veteran testified at the April 2021 hearing that during flare-ups he experiences headaches and frequent urination with nighttime awakenings. See April 2016 Service treatment records (STRs). In addition, he testified that he had left eye pain from the strain of optic neuritis. Given the reports of worsening since the May 2016 VA examination, the Board finds an updated examination is necessary. Snuffer v. Gober, 10 Vet. App. 400 (1997). 10. Entitlement to an initial rating higher than 30 percent for dysthymic disorder is remanded. At the April 2021 hearing, the Veteran reported thoughts of harming himself or others and panic attacks. The Veteran stated that he had attention deficit hyperactive disorder (ADHD) that had worsened and prevented him from getting things done. Specifically, he indicated that his sleep and ability to concentrate has worsened since the May 2016 VA examination. As such, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo an additional VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from September 2017 to the present. 2. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of a sinus disability. The examiner must review the claims file. The examiner should then opine whether: (a) the diagnosed sinus disability clearly and unmistakably (undebatable) preexisted the Veteran's service. (b) If the diagnosed sinus disability did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? (c) If the diagnosed sinus disability either did not clearly and unmistakably preexist service or was not clearly and unmistakably not aggravated by service, is it at least as likely as not related to service? In addressing the foregoing questions, the examiner should consider the Veteran's reported history of in-service surgery, and continuity of symptomatology since service. A complete rationale is requested for all opinions provided. 3. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of the claimed dysphagia. The examiner must review the claims file. The examiner should then opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's dysphagia is etiologically related to service. The examiner must also opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's dysphagia was caused or aggravated by his service-connected multiple sclerosis. Aggravation in the secondary service connection context is defined as any increase in disability. In rendering the above opinions, the VA examiner must specifically consider and discuss the Veteran's April 2021 hearing testimony that this condition began during service and his statements regarding the continuity of symptomatology. The examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A complete rationale is requested for all opinions provided. 4. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of the claimed bilateral carpal tunnel syndrome. The examiner must review the claims file and opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's carpal tunnel syndrome is etiologically related to service. The examiner must also opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's carpal tunnel syndrome is caused or aggravated by his service-connected cervical spine disability. Aggravation in the secondary service connection context is defined as any increase in disability. In rendering the above opinions, the VA examiner must specifically consider and discuss the Veteran's April 2021 hearing testimony that this condition began during service and his statements regarding the continuity of symptomatology. The examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A complete rationale is requested for all opinions provided. 5. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of the claimed right arm disability. The examiner must review the claims file and identify whether the Veteran has a right arm disability manifested by numbness. 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). Specifically, the examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's claimed right arm disability is etiologically related to service. The examiner must also opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's claimed right arm disability was caused or aggravated by his service-connected cervical spine disability. Aggravation in the secondary service connection context is defined as any increase in disability. Provide a rationale to support the opinion(s). 6. Schedule the Veteran for a VA examination by an appropriate examiner to determine the current severity of his service-connected allergic rhinitis. The examiner must review the record and must note that review in the report. The examiner should identify all current manifestations of the Veteran's allergic rhinitis. The examiner is specifically asked whether the Veteran has polyps. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. A complete rationale is requested for all opinions provided. 7. Schedule the Veteran for a VA examination by an appropriate examiner to determine the current severity of his service-connected asthma. The examiner must review the record and must note that review in the report. The examiner should identify all current manifestations of the Veteran's asthma. 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. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. A complete rationale is requested for all opinions provided. 8. Schedule the Veteran for a VA examination by an appropriate examiner to evaluate the Veteran's cervical spine and lumbar spine disabilities. The examiner must review the record and must note that review in the report. All indicated tests should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to describe fully the current severity of the Veteran's cervical spine and lumbar spine disabilities. In addition, the examiner should address the following: (a.) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and lack of coordination present. (b.) The examiner should state whether the examination is taking place during a flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the impairment associated with flare-up episodes or after repetitive use over time, to include: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or the extent of functional limitations. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited range of motion caused by functional loss during a flare-up or after repeated use over time. If rendering this opinion is not possible, the clinician must provide an adequate explanation as to why. (c.) Range of motion testing must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges, if possible, obtain range of motion of the opposite undamaged joint. If such are not applicable, the examiner should state such along with an explanation. (d.) The examiner should also comment on the cervical spine and lumbar spine disabilities. (e.) The examiner should identify and describe any upper and lower extremity neurologic disabilities identified due to the service-connected cervical spine and lumbar spine disabilities, the nerves affected, and the level of impairment. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any identified radiculopathy disability had its onset during active service or is related to any incident of service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any identified radiculopathy disability is due to been aggravated by the service-connected cervical spine and lumbar spine disabilities. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not medically appropriate in this case, the examiner should clearly explain why that is so. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 9. Schedule the Veteran for a VA examination with a neurologist or other medical professional who treats multiple sclerosis. The examiner must review the record and must note that review in the report. The examiner should provide a detailed description of the Veteran's residuals of multiple sclerosis, and their severity, to include and left eye neuritis. The examiner should also state whether the Veteran experiences any other or new residual symptoms of multiple sclerosis, including headaches, urinary frequency, and swallowing difficulties. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. 10. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected dysthymic disorder. The examiner must review the record and must note that review in the report. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his dysthymic disorder alone. The examiner should also state whether a separate diagnosis for ADHD is warranted. If so, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's ADHD was caused or aggravated by his service-connected dysthymic disorder. Aggravation in this context is defined as any increase in disability. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.