Citation Nr: 22019690 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 16-50 007A DATE: April 2, 2022 ORDER The appeal as to entitlement to an effective date earlier than September 28, 2012, for the award of service connection for benign skin lipomas has been withdrawn and is dismissed. The appeal as to entitlement to an effective date earlier than September 28, 2012, for the award of an increased 10 percent rating for a left shoulder disability has been withdrawn and is dismissed. From September 28, 2012, entitlement to a rating of 20 percent, but no higher, for a left shoulder disability is granted. From September 28, 2012, entitlement to an initial rating of 30 percent, but no higher, for benign skin lipomas is granted. New and material evidence has been received and the petition to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include without limitation PTSD, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a disability manifested by right lower extremity pain and numbness, to include as secondary to a left shoulder and/or low back disability, is remanded. FINDINGS OF FACT 1. During the April 2021 Board hearing, the Veteran's attorney explicitly, unambiguously, and with a full understanding of the consequences of such action withdrew the appeal seeking entitlement to an earlier effective date of service connection for benign skin lipomas and entitlement to an earlier effective date of an increased 10 percent rating for a left shoulder disability. 2. The Veteran's right arm is his major extremity. 3. From September 28, 2012, the Veteran's left shoulder disability more closely approximated limitation of motion of the arm to the shoulder level; but not limitation to midway between the side and shoulder level or limitation to 25 degrees from the side. 4. From September 28, 2012, the Veteran's benign skin lipomas were manifested by impairment akin to five or more scars that were painful but not unstable. 5. A March 2006 rating decision denied entitlement to service connection for PTSD due to the absence of a current diagnosis of PTSD and the absence of a stressor and a link between a current diagnosis and an in-service stressor. The Veteran did not appeal this decision and new and material evidence was not actually or constructively received within one year of the issuance of the decision. 6. Evidence received more than one year after the March 2006 rating decision reflects the presence of a current acquired psychiatric disorder and an in-service stressor. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal seeking entitlement to an earlier effective date of service connection for benign skin lipomas and entitlement to an earlier effective date of an increased 10 percent rating for a left shoulder disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. From September 28, 2012, the criteria for a rating of 20 percent, but no higher, for a left shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.27, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5010-5201. 3. From September 28, 2012, the criteria for an initial rating of 30 percent, but no higher, for benign skin lipomas are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.20, 4.27, 4.118, Diagnostic Codes 7819-7804. 4. The March 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 5. New and material evidence has been received and the criteria for reopening the claim of entitlement to service connection for PTSD are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1990 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In April 2021, the Veteran testified at a virtual hearing before the undersigned as to the timeliness of the substantive appeal filed in October 2016, as well as with respect to the merits of the underlying appeal. In November 2021, the Board determined that the Veteran filed a timely Substantive Appeal as to the April 2014 Statement of the Case (SOC). In June 2021 and August 2021, the Board granted the Veteran's requests for 60-day extensions of time to submit additional evidence and argument. In February 2022, the Veteran withdrew any pending hearing requests. 1. The appeal as to entitlement to an effective date earlier than September 28, 2012, for the award of service connection for benign skin lipomas has been withdrawn and is dismissed. 2. The appeal as to entitlement to an effective date earlier than September 28, 2012, for the award of an increased 10 percent rating for a left shoulder disability has been withdrawn and is dismissed. The Board may dismiss any appeal that fails to allege a 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, and withdrawal may be made by the appellant or by his or her authorized representative in writing or on the record during a hearing before the Board. 38 C.F.R. § 19.55. On the record during the April 2021 Board hearing, the Veteran's attorney withdrew any appeal as to entitlement to an earlier effective date of service connection for benign skin lipomas and entitlement to an earlier effective date for an increased 10 percent rating for a left shoulder disability. The undersigned clearly identified the withdrawn issues and explained that by withdrawing her appeal he would not be entitled to any benefits, including additional compensation, for these disabilities. The Veteran's attorney affirmed that he was requesting a withdrawal as to these appealed issues. Thus, the Board finds that the Veteran has withdrawn this issue explicitly, unambiguously, and with a full understanding of the consequences. As there is no remaining allegation of error of fact or law for appellate consideration regarding these issues, the Board does not have jurisdiction to review the issues and they are dismissed. 3. From September 28, 2012, entitlement to a rating of 20 percent, but no higher, for a left shoulder disability is granted. The Veteran asserts that he is entitled to a 20 percent rating for his left shoulder disability and that the assignment of a 20 percent rating would satisfy his appeal as to this issue in full. See, e.g., April 2021 Board Hearing Transcript at 8. The Board agrees that a 20 percent rating throughout the appeal is warranted. The Veteran is in receipt of service connection for left shoulder degenerative joint disease status post glenohumeral dislocation. The Veteran is rated under Diagnostic Codes 5010-5201 (post-traumatic arthritis rated by analogy to limitation of motion of the arm) with an assigned 10 percent rating from September 28, 2012, the date of claim, through October 27, 2016. Thereafter, he is in receipt of a 20 percent rating. Post-traumatic arthritis is rated under Diagnostic Code 5010 and may be rated by analogy to limitation of motion. While other rating methods are available for arthritis, they cannot result in a rating higher than the 20 percent rating that this decisions awards throughout the appeal. Limitation of motion of the arm is rated under Diagnostic Code 5201. This Diagnostic Code was amended during the pendency of this appeal. Prior to the date of amendment, the Board must apply the pre-amendment criteria. Prospectively from the date of amendment, the Board must apply the more favorable of the pre-amendment and post-amendment criteria. Under the pre-amendment criteria, where motion is limited to shoulder level, a 20 percent rating is warranted for either the major (dominant) or minor arm. Where motion is limited to midway between the side and shoulder level, a 30 percent rating is warranted for the major arm and a 20 percent rating is warranted for the minor arm. Where motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major arm and a 30 percent rating is warranted for the minor arm. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Flexion and abduction of the arm to 90 degrees is at shoulder level. See Marino v. Principi, 17 Vet. App. 305, 315 (2003). Thus, as the arm against the side represents zero degrees of flexion or abduction, midway between the side and the shoulder is at 45 degrees of flexion or abduction. The amended criteria that went into effect in February 2021 made explicit these ranges of motion in terms of degrees of limitation and did not substantively modify the pre-amendment criteria. Handedness for the purpose of a dominant rating is determined by the evidence of record or by testing on VA examination. Only one hand shall be considered dominant. The injured extremity, or the most severely injured extremity of an ambidextrous individual will be considered the dominant hand for rating purposes. The Veteran presented for a VA examination in July 2013. The examiner noted that the Veteran was right hand dominant and noted left shoulder flexion limited to 140 degrees, with pain beginning at 90 degrees of flexion. The examiner also noted left shoulder abduction limited to 130 degrees, with pain beginning at 90 degrees of abduction. The examiner noted functional loss due to left shoulder pain and noted guarding. Here, a 20 percent rating is warranted throughout the appeal under Diagnostic Code 5201. Onset of pain at 90 degrees of flexion and abduction is consistent with limitation of motion limited to "shoulder level," i.e., 90 degrees from the side. The record does not show, and the Veteran does not assert, that a rating in excess of 20 percent or a separate rating is warranted. Indeed, the Veteran's attorney explicitly stated that the award of a 20 percent rating would satisfy the appeal. See Board Hearing Transcript at 8. Accordingly, entitlement to a rating of 20 percent, but no higher, is warranted throughout the appeal from September 28, 2012, the date of claim. 4. From September 28, 2012, entitlement to an initial rating of 30 percent, but no higher, for benign skin lipomas is granted. The Veteran asserts that he is entitled to an initial 30 percent rating for his benign skin lipomas and states that the award of an initial 30 percent rating would satisfy his appeal. See Board Hearing Transcript at 6. The Board agrees that an initial 30 percent rating is warranted. The Veteran is in receipt of service connection for benign skin lipomas of the bilateral lower arms and upper thighs. He is in receipt of an initial noncompensable (zero percent) rating under Diagnostic Codes 5299-7819 (unlisted musculoskeletal condition rated by analogy to benign skin neoplasms). The period on appeal is from September 28, 2012, the effective date of service connection. Initially, the Board observes that the AOJ assigned an incorrect Diagnostic Code. The Veteran's benign skin lipomas are not a musculoskeletal condition and should be rated under Diagnostic Code 7819 which, as noted below, directs the Board to consider other appropriate Diagnostic Codes. Diagnostic Code 7819 directs the Board to rate benign skin neoplasms as disfigurement (Diagnostic Code 7800), scars (Diagnostic Codes 7801 to 7805), or by impairment of function. See 38 C.F.R. § 4.118. The Veteran presented for a VA examination in July 2013. The examiner noted the Veteran's reports of lipomas all over his body, including the legs, arms, back, and stomach. The examiner noted multiple small subcutaneous lipomas palpable nodules to bilateral lower arms, times two, and two nodules on the left upper thigh and one on the right upper thigh. The examiner stated that the Veteran's lipomas were "benign and asymptomatic." Notwithstanding the July 2013 examiners notation that the Veteran's lipomas were asymptomatic, the Veteran reported painful lipomas at the Board hearing. He testified as to having lipomas all over the torso, the back of his neck, his arms, his legs, and his groin. The Veteran reported that these are painful to the touch, and that he had discussed surgery, but was informed that the scar could be just as painful. See Board Hearing Transcript at 4-6. The Veteran's competent and credible report that his lipomas are painful to the touch is corroborated by his service treatment records (STRs). See, e.g., November 1993 Consultation Sheet (noting Veteran's complaints of tender lipomas). As noted above, Diagnostic Code 7819 directs the Board to rate benign skin neoplasms by analogy. Here, the most appropriate Diagnostic Code is 7804 (painful or unstable scars). Diagnostic Code 7804 provides that a 10 percent rating is warranted for one or two scars that are painful or unstable, a 20 percent rating is warranted for three or four scars that are painful or unstable, and a maximum schedular 30 percent rating is warranted for five or more scars that are painful or unstable. If at least one scar is both painful and unstable, the rating assigned is increased by 10 percent. Here, an initial rating of 30 percent under Diagnostic Code 7819-7804 (benign skin neoplasms rated by analogy to painful scars) is warranted throughout the appeal. The Veteran's report of lipomas that are painful to the touch are akin to painful scars. Moreover, the July 2013 examiner noted more than five lipomas, which is consistent with the Veteran's competent and credible testimony at the Board hearing. The record does not show, and the Veteran does not assert, that an initial rating in excess of 30 percent is warranted. Indeed, the Veteran's attorney explicitly stated that the award of an initial 30 percent rating would satisfy the appeal. See Board Hearing Transcript at 6. Accordingly, entitlement to an initial rating of 30 percent, but no higher, is warranted throughout the appeal from September 28, 2012, the effective date of service connection. 5. New and material evidence has been received and the petition to reopen the claim of entitlement to service connection for PTSD is granted. Under VA's legacy appeals system, which governs this appeal, a rating decision is final unless it is timely appealed or new and material evidence is actually or constructively received within one year of the issuance of the decision. However, a final claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 U.S.C. § 5108 (as in effect prior to February 19, 2019); 38 C.F.R. § 3.156. The March 2006 rating decision denied entitlement to service connection for PTSD due to the absence of a current diagnosis of PTSD and the lack of verified stressor. The Veteran did not appeal that decision and the present record does not show that new and material evidence was actually or constructively received within one year of that decision. Thus, it is final for purposes of a reopening determination. See also Dallman v. Wilkie, 33 Vet. App. 101 (2020) (finality decisions in the context of reopening a claim are not "final" so as to limit subsequent awards of an earlier effective date). More than one year since the March 2006 rating decision, additional evidence has been received including evidence relating to a current diagnosis of PTSD and the Veteran's hearing testimony as to in-service stressors. See, e.g., Board Hearing Transcript at 11-13; October 21, 2014 DeKalb Community Service Board Clinical Report (noting past diagnoses including PTSD and trauma during the Veteran's 20's in the Persian Gulf War). This evidence is new, and as it relates to the presence of a current diagnosis of PTSD and a stressor, it is also material. Thus, as new and material evidence has been received, the claim is reopened. REASONS FOR REMAND 6. Entitlement to service connection for an acquired psychiatric disorder, to include without limitation PTSD, is remanded. Remand is necessary for additional development. Here, the evidence shows various acquired psychiatric disorders diagnosed during the appeal, including PTSD. Moreover, the evidence shows the Veteran's reports of stressful events in service. However, the evidence of record does not meet the criteria for entitlement to service connection for PTSD or any other mental disorder. Accordingly, on remand the Veteran's reported stressors should be developed and he should be afforded an examination. Additionally, complete VA treatment records should be secured, as well as any outstanding relevant private treatment records. 7. Entitlement to service connection for a low back disability is remanded. Remand is necessary to correct a pre-decisional duty to assist error. In this regard, the July 2013 VA examiner opined that it was less likely than not that the Veteran's low back disability was due to service. The examiner explained that review of the claims file was negative for lower back musculoskeletal complaint in service. See July 2013 Medical Opinion. However, a report of medical history completed in connection with the Veteran's final physical indicates that he checked "yes" when asked if he had ever worn a brace or back support. See November 1993 Report of Medical History. Thus, the examiner's opinion is based on an inaccurate factual basis and is inadequate. On remand, an adequate medical opinion should be secured and the Veteran should be afforded an updated examination. The examiner should address the Veteran's testimony as to injuring his back when he injured his left shoulder. 8. Entitlement to service connection for a disability manifested by right lower extremity pain and numbness, to include as secondary to a left shoulder and/or low back disability, is remanded. Action on this issue is deferred pending completion of the development noted above. The matters are REMANDED for the following action: 1. Secure the Veteran's complete VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records, if any. 3. Provide the Veteran with a copy of VA Form 21-0781 and instructions for completing the same. If a completed form is returned, attempt to verify all reported stressors. Please note that any requirement of a 60-day window for research purposes is in violation of the duty to assist. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (VA's duty to assist is not bound by a 60-day limitation for stressor verification requests, and the fact that multiple records searches would burden employees does not mean that those efforts would be "futile"). Accordingly, any attempt to verify the reported stressors must be completed in 60-day increments to cover any time period identified by the Veteran. If the Veteran returns a completed form, please provide all findings in a detailed memorandum, including a complete rationale if a reported stressor cannot be verified. 4. After completing #1, #2, and #3, schedule the Veteran for an examination to determine the nature and etiology of any acquired psychiatric disorder(s) found to be present. The claims file should be made available to and should be reviewed by the examiner. Any necessary testing should be performed. The examiner should address the following: (a) Diagnose all current acquired psychiatric disorders present since September 2012, even if resolved. In addressing this item, a diagnosis of PTSD should be explicitly ruled in or excluded, and if diagnosed, the stressor(s) upon which such diagnosis is based should be identified. If the Veteran does not meet the criteria for a diagnosis of PTSD, the examiner should discuss the basis for this conclusion. (b) For each acquired psychiatric disorder identified in subpart (a), opine whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset during or is otherwise etiologically related to the Veteran's active service. In addressing this item, the examiner should discuss the Veteran's reported stressors, to include his report of traumatic experiences during the Persian Gulf War. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 5. After completing #1, #2, and #3, schedule the Veteran for an examination to determine the nature and etiology of his claimed low back disability. The claims file should be made available to and should be reviewed by the examiner. Any necessary testing should be performed. The examiner should address the following: (a) Diagnose all current low back disabilities present since September 2012, even if resolved. In addressing this item, the examiner is advised that a functional impairment due to pain or other causes constitutes a current disability for VA purposes, even in the absence of diagnosed pathology. (b) For each disability identified in subpart (a), opine whether it is at least as likely as not (a 50 percent or greater probability) that such disability had its onset during or is otherwise etiologically related to the Veteran's active service. In addressing this item, the examiner should discuss the Veteran's report of injuring his back when he injured his left shoulder in a fall, as well as the Veteran's report at separation of having worn a brace or back support in service. See November 1993 Report of Medical History (STRs); Board Hearing Transcript at 8. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, Associate 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.