Citation Nr: 22018749 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-19 748 DATE: March 30, 2022 ORDER Entitlement to service connection for tinnitus is dismissed. Entitlement to service connection for myopia is dismissed. Entitlement to a compensable disability rating for left shoulder surgical scar is dismissed. Entitlement to a disability rating in excess of 30 percent for left shoulder painful scars is dismissed. Entitlement to increased disability ratings for degenerative disc and joint disease of the lumbosacral spine, rated as 10 percent disabling prior to August 30, 2015, and as 20 percent disabling since August 20, 2015, is dismissed. Entitlement to an effective date prior to June 19, 2014, for the grant of service connection for left shoulder surgical scar is dismissed. Entitlement to an effective date prior to April 2, 2013, for the grant of service connection for degenerative disc and joint disease of the lumbosacral spine is dismissed. Entitlement to an effective date prior to April 2, 2013, for the grant of service connection for postoperative left shoulder ankylosis is dismissed. Entitlement to an effective date prior to April 2, 2013, for the grant of service connection for femoral nerve radiculopathy of the left lower extremity is dismissed. Entitlement to a 30 percent disability rating effective April 22, 2015, for postoperative left shoulder ankylosis is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for femoral nerve radiculopathy of the left lower extremity is remanded. Entitlement to a disability rating in excess of 10 percent for sciatic nerve radiculopathy of the left lower extremity is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to an effective date prior to October 4, 2016, for the grant of service connection for left shoulder painful scars is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At his November 2021 Board hearing and in correspondence received in December 2021, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeal as to the issues of entitlement to service connection for tinnitus and myopia; entitlement to higher disability ratings for left shoulder surgical scar, left shoulder painful scars, and degenerative disc and joint disease of the lumbosacral spine; as well as entitlement to earlier effective dates for the grant of service connection for left shoulder surgical scar, degenerative disc and joint disease of the lumbosacral spine, postoperative left shoulder ankylosis, and femoral nerve radiculopathy of the left lower extremity. 2. The evidence shows that the Veteran's postoperative left shoulder ankylosis was manifested by ankylosis in abduction between favorable and unfavorable since April 22, 2015, the date of his left shoulder surgery. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to service connection for myopia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to a higher disability rating for left shoulder surgical scar have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to a higher disability rating for left shoulder painful scars have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to a higher disability rating for degenerative disc and joint disease of the lumbosacral spine have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to an earlier effective date for the grant of service connection for left shoulder surgical scar have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to an earlier effective date for the grant of service connection for degenerative disc and joint disease of the lumbosacral spine have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to an earlier effective date for the grant of service connection for postoperative left shoulder ankylosis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to an earlier effective date for the grant of service connection for femoral nerve radiculopathy of the left lower extremity have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 10. Resolving reasonable doubt in the Veteran's favor, the criteria for a 30 percent rating, but no higher, for postoperative left shoulder ankylosis have been met effective April 22, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5010, 5200. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to November 1973, and from July 1974 to August 1990. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2014 and January 2017 Rating Decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2021 Board virtual hearing. A transcript of that hearing has been associated with the claims file. In Rice v. Shinseki, 22 Vet. App. 447 (2009), 22 Vet. App. 447, the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of a rating claim when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal. Here, the Veteran expressly raised the issue of entitlement to a TDIU at his November 2021 Board hearing. As such, the issue of entitlement to a TDIU is also on appeal. The Board recognizes that additional VA-generated evidence relevant to the issues on appeal was added to the record following the issuance of Statements of the Case in March 2018 and September 2019. Specifically, VA Back (Thoracolumbar Spine) Conditions, Shoulder and Arm Conditions, and Scars/Disfigurement examination reports were added to the record in January 2022. The Veteran provided a waiver of Agency of Original Jurisdiction (AOJ) during the November 2021 Board hearing. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 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 by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55 (a). The withdrawal should be filed with the Board and must include the name of the veteran, the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, then the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 19.55 (b)(1). Withdrawals are effective when received by the Board if a decision has not been promulgated. 38 C.F.R. § 19.55 (b)(3). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55(c). In this case, prior to the promulgation of a decision in the appeal, testimony received at the November 2021 Board hearing and a December 2021 written correspondence indicated that the Veteran wished to withdraw his claims of entitlement to service connection for tinnitus and myopia; entitlement to higher disability ratings for left shoulder surgical scar, left shoulder painful scars, and degenerative disc and joint disease of the lumbosacral spine; as well as entitlement to earlier effective dates for the grant of service connection for left shoulder surgical scar, degenerative disc and joint disease of the lumbosacral spine, postoperative left shoulder ankylosis, and femoral nerve radiculopathy of the left lower extremity. Here, the Board finds that the Veteran's testimony and correspondence satisfies the requirements of a written withdrawal as to these issues and that there remain no allegations of errors of fact or law for appellate consideration. 38 C.F.R. § 19.55. Accordingly, the Board does not have jurisdiction to review the appeal and the issues of entitlement to service connection for tinnitus and myopia; entitlement to higher disability ratings for left shoulder surgical scar, left shoulder painful scars, and degenerative disc and joint disease of the lumbosacral spine; as well as entitlement to earlier effective dates for the grant of service connection for left shoulder surgical scar, degenerative disc and joint disease of the lumbosacral spine, postoperative left shoulder ankylosis, and femoral nerve radiculopathy of the left lower extremity are dismissed. Increased Rating An August 2014 Rating Decision initially granted entitlement to service connection for postoperative left shoulder ankylosis and assigned a 20 percent disability rating under Diagnostic Code 5200 effective April 2, 2013. The Veteran subsequently underwent arthroscopy of the left shoulder with labral repair and debridement of partial rotator cuff tear on April 22, 2015, and submitted timely Notice of Disagreement in July 2015 in which he disagreed with the assigned rating. He was then afforded a VA Shoulder and Arm Conditions examination on August 30, 2015. Based on the result of this examination, a March 2018 Rating Decision increased the Veteran's disability rating to 30 percent under Diagnostic Code 5200 effective August 30, 2015 (the date of the VA examination). Significantly, at his November 2021 Board virtual hearing, the Veteran clarified that the only benefit sought on appeal with respect to this claim was a 30 percent disability rating effective April 22, 2015, the date of his left shoulder surgery. The Veteran competently testified that his left shoulder symptomatology worsened after the April 22, 2015, surgery. Crucially, however, the Veteran and his attorney were clear that the Veteran was not seeking a disability rating in excess of 20 percent prior to April 22, 2015, or a disability rating in excess of 30 percent since April 22, 2015. As such, the Board's inquiry is narrowly limited to whether the Veteran was entitled to a 30 percent disability rating for his service-connected postoperative left shoulder ankylosis as of April 22, 2015. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Board notes that the Veteran is right hand dominant; as such, his left shoulder is considered his minor side. The Veteran's left shoulder condition is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5200. Under Diagnostic Code 5200, for favorable ankylosis with abduction to 60 degrees and ability to reach mouth and head, a 20 percent rating is warranted for the minor side. For intermediate ankylosis between favorable and unfavorable, a 30 percent rating is warranted for the minor side. For unfavorable ankylosis and abduction limited to 25 degrees from the side, a 40 percent rating is warranted for the minor side. Additionally, where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. See Mitchell v. Shinseki, 25 Vet. App. 31 (2011). Within this context, the Board notes that a veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, including as due to pain. 38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117(2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2020). However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). Here, it is not in dispute that the Veteran underwent arthroscopy of the left shoulder with labral repair and debridement of partial rotator cuff tear on April 22, 2015. Additionally, at his November 2021 Board virtual hearing, the Veteran testified that he experienced an increase in his left shoulder symptomatology as a result of this surgery. The August 2015 VA Shoulder and Arm Conditions examination confirmed this increase in left shoulder symptomatology, indicating ankylosis in abduction between favorable and unfavorable (intermediate ankylosis), which warrants a 30 percent rating for the minor side under Diagnostic Code 5200. Moreover, there is no evidence of an intervening event between the April 22, 2015, shoulder surgery and the August 2015 VA examination that could account for the worsening of his left shoulder symptomatology. The Board emphasizes that the Veteran is competent to report his symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). Here, given that the Veteran underwent left shoulder surgery on April 22, 2015; that he competently testified that his left shoulder symptomatology increased in severity following the April 22, 2015, surgery; and that a subsequent August 2015 VA examination report confirmed ankylosis in abduction between favorable and unfavorable, the Board finds that the Veteran is entitled to a 30 percent disability rating under Diagnostic Code 5200 for his postoperative left shoulder ankylosis effective April 22, 2015, the day of his surgery. This constitutes a full grant of the benefits sought on appeal by the Veteran with respect to this issue. REASONS FOR REMAND The Veteran also seeks entitlement to service connection for a neck disability; entitlement to higher disability ratings for femoral nerve radiculopathy of the left lower extremity and sciatic nerve radiculopathy of the left lower extremity; entitlement to an earlier effective date for the grant of service connection for left shoulder painful scars; and entitlement to a TDIU. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to the Veteran's claim of entitlement to service connection for a neck disability, the Veteran testified at his November 2021 Board virtual hearing that he initially injured his neck in 1987 when he fell out of a Jeep during field reconnaissance on the 38th parallel while stationed in Seoul, South Korea. The Veteran further testified that this injury became more painful within a three-month period of the initial injury and progressed into the present day. In a November 2021 statement, a former servicemember stationed with the Veteran at Fort Lee, Virginia, in 1988 indicated that he witnessed the Veteran experience excruciating and nearly debilitating neck pain at that time. The Veteran's post-service treatment records contain complaints of neck pain, which has been diagnosed as cervicalgia, degenerative disc disease of the cervical spine, spinal stenosis in the cervical region, and cervical radiculopathy. Although private medical treatment records dated in 2015 indicated that the Veteran is service-connected for chronic neck and left shoulder pain resulting from a 1987 military injury, this appears to be merely information provided to the clinician by the Veteran. The Board emphasizes that, as a lay person, the Veteran is competent to report that which he discerns through his senses, such as neck pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As such, on remand, the Veteran should be provided with a VA examination to determine the likely etiologies of all diagnosed disabilities of the cervical spine. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With respect ot the Veteran's claims of entitlement to higher disability ratings for femoral nerve radiculopathy of the left lower extremity and sciatic nerve radiculopathy of the left lower extremity, the Veteran was provided with a VA Back (Thoracolumbar Spine) Conditions examination in February 2018, at which time he was diagnosed as having radiculopathy involving the left sciatic nerve but not the left femoral nerve. However, the Veteran was also afforded a VA Peripheral Nerves Conditions examination in February 2018, at which time he was diagnosed as having radiculopathy of both the left sciatic nerve and the left femoral nerve. Over three years later, at his November 2021 Board virtual hearing, the Veteran testified that his service-connected radiculopathy of the left lower extremity worsened. Although the Veteran was subsequently provided with another VA Back (Thoracolumbar Spine) Conditions examination in January 2022, the Board emphasizes that this examination diagnosed him as only having radiculopathy involving the left sciatic nerve, with no mention of the previous diagnosis of radiculopathy involving the left femoral nerve. As such, the Board finds that the January 2022 VA examination is inadequate for purposes of evaluating the severity of the Veteran's left lower extremity radiculopathy. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007) (once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). Accordingly, the Veteran should be afforded a new VA Peripheral Nerves Conditions examination to thoroughly assess the current nature, extent, and severity of his service-connected left lower extremity radiculopathies of the sciatic and femoral nerves. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). With respect to the Veteran's claim of entitlement to an earlier effective date for the grant of service connection for left shoulder painful scars, a January 2017 Rating Decision granted entitlement to service connection for painful scars of the left shoulder and assigned a 30 percent disability evaluation effective October 4, 2016. In his March 2017 Notice of Disagreement, the Veteran disagreed with both the effective date of this award as well as the evaluation assigned to the disability. However, in its September 2019 Statement of the Case, the RO only addressed the evaluation assigned to the left shoulder painful scars. Significantly, the September 2019 Statement of the Case did not appear to directly adjudicate the earlier effective date issue. To date, the RO has not issued a Statement of the Case addressing this issue. Consequently, the Board finds that a remand is required for this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). With respect to the TDIU claim, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, this issue is inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to assess the probable nature and etiology of his diagnosed cervicalgia, degenerative disc disease of the cervical spine, spinal stenosis in the cervical region, and cervical radiculopathy. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed cervicalgia, degenerative disc disease of the cervical spine, spinal stenosis in the cervical region, and/or cervical radiculopathy were caused by, incurred in, or otherwise related to his periods of active service from July 1973 to November 1973, and from July 1974 to August 1990. Complete rationales must be provided for the opinions proffered. In rendering the requested rationales, the examiner must address the Veteran's testimony that he initially injured his neck in 1987 when he fell out of a Jeep during field reconnaissance on the 38th parallel while stationed in Seoul, South Korea, and that he experienced continuous neck pain since that time. The examiner is also asked to address the November 2021 statement in which a former servicemember stationed with the Veteran at Fort Lee, Virginia, in 1988 indicated that he witnessed the Veteran experience excruciating and nearly debilitating neck pain at that time. If the examiner is unable to render any opinion without resorting to speculation or if the examiner finds the Veteran is not credible for any reason, then a complete explanation must be provided. In formulating these opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. (Continued on the next page) 2. Schedule the Veteran for a VA Peripheral Nerves Conditions examination to ascertain the current severity and manifestations of his left lower extremity radiculopathies of the sciatic and femoral nerves. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. 3. Issue the Veteran and his attorney a Statement of the Case and notification of his appellate rights with respect to the issue of entitlement to an earlier effective date for the grant of service connection for a left shoulder painful scars. Inform the Veteran that to vest jurisdiction over this issue with the Board, a timely substantive appeal must be filed following the issuance of the Statement of the Case. If the Veteran perfects an appeal as to the claim, then it must be certified to the Board for appellate review. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.