Citation Nr: 23023751 Decision Date: 04/25/23 Archive Date: 04/25/23 DOCKET NO. 19-03 310 DATE: April 25, 2023 ORDER Entitlement to service connection for lumbar spine degenerative disc disease (claimed as a low back disability) is granted. Entitlement to a compensable disability rating for leukopenia is denied. Entitlement to a compensable disability rating for a surgical scar on the left shoulder is denied. REMANDED Entitlement to service connection for aplastic anemia is remanded. Entitlement to service connection for a left wrist condition (also claimed as major joint pain and inflammatory disease), to include as secondary to aplastic anemia, is remanded. Entitlement to service connection for a right wrist condition (also claimed as major joint pain and inflammatory disease), to include as secondary to aplastic anemia, is remanded. Entitlement to service connection or left hip condition (also claimed as major joint pain and inflammatory disease), to include as secondary to aplastic anemia, is remanded. Entitlement to service connection or right hip condition (also claimed as major joint pain and inflammatory disease), to include as secondary to aplastic anemia, is remanded. Entitlement to a disability rating in excess of 40 percent prior to August 3, 2018, for residuals of recurrent left shoulder dislocations and 20 percent thereafter is remanded. Entitlement to a disability rating in excess of 20 percent for left shoulder impairment of the humerus from August 3, 2018, is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a disability rating in excess of 30 percent for persistent depressive disorder, dysthymia (also claimed as depression) prior to August 3, 2018, and in excess of 50 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the lumbar spine is related to an in-service back injury. 2. The Veteran's leukopenia has not required continuous medication or transfusion of platelets or red blood cells and has not resulted in recurring infections. 3. The Veteran's left shoulder surgical scar is not manifest by any disabling effects not considered under Diagnostic Codes 7800-04. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine degenerative disc disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a compensable evaluation for leukopenia are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.117, Diagnostic Code 7716. 3. The criteria for a compensable disability rating for a surgical scar on the left shoulder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. INTRODUCTION The Veteran served on active duty from December 1972 to December 1974 and from March 1975 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from February 2014 and February 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2022. A copy of the transcript is included in the record. During his hearing, the Veteran indicated that his arthritis of the wrists and hips were due to aplastic anemia which was in turn due to service. The Board has jurisdiction of service connection of aplastic anemia as an intermediate disability between the disabilities considered by the AOJ and service. DeLisio v. Shinseki, 25 Vet. App. 45, 55 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection - Lumbar Spine Disability The Veteran contends that he has a current back disability that is related to service. He has reported that he injured his back while on active duty in Italy when he was playing basketball and landed with locked knees, compressing his lower back, and that he has hospitalized for treatment for this back injury. He indicated that he had written a letter to his wife letting her know that he was hospitalized for his back. The Veteran has submitted a copy of this letter along with the envelope reflecting that it was mailed in February 1977. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran has a current diagnosis of degenerative arthritis of the lumbar spine. See December 2014 VA examination. The Board concludes that the Veteran's current degenerative arthritis of the lumbar spine is related to his in-service back 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). The Veteran was provided with a VA examination in December 2014. The examiner opined that the Veteran's lumbar spine disability was not a result of his service-connected left shoulder disability. The examiner did not provide an opinion as to whether the Veteran's back disability was directly related to service. The Veteran submitted an opinion dated in October 2019 by a private chiropractor who had examined the Veteran in March 2019. This examiner noted the Veteran's reported of having problems with his back since his February 1977 injury. The Veteran described his injury while playing basketball and discussed his inability to walk and his hospitalization in Italy after the acute injury. The examiner diagnosed degenerative joint disease of the lumbar spine with evidence of facet inflammation. The examiner opined that it was more likely than not that the Veteran's lumbar spine disability was related to his in-service injury. In his rationale, the examiner noted the lack of evidence of any back problems prior to service, the Veteran's reports of his in-service injury, and his letter to his wife confirming his February 1977 hospitalization for a back injury. The examiner stated that the phenomena of progression subsequent to injury was documented extensively in medical literature as far back as the 1970's when it was described as a "degenerative cascade" of degenerative disc disease. The examiner found that the evidence of record suggested an early injury consistent with the history and records available for the Veteran. The Board finds the opinion of the private chiropractor to be highly probative and persuasive, as it is based on a review of the evidence of record and supported with a reasoned medical explanation that is consistent with the Veteran's treatment records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008), Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Based on the foregoing, the evidence of record persuasively weighs in favor of the Veteran's claim for service connection for a lumbar spine disability. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021); 38 C.F.R. § 3.102. Increased Rating - Leukopenia The Veteran contends that his service-connected leukopenia warrants a compensable disability rating. Leukopenia is not specifically listed in the rating schedule and is instead rated by analogy based upon the closest affected body system consistent with 38 C.F.R. § 4.20. When an unlisted disease is rated by analogy, the code is built by using the part of the rating schedule most closely related to the disability for the first 2 digits and "99" for the last 2 digits. See 38 C.F.R. § 4.27. Here, the RO initially determined that the closest rated disability is that of aplastic anemia, rated under 38 C.F.R. § 4.117, Diagnostic Code 7716. On October 29, 2018, VA issued a final rule revising 38 C.F.R. § 4.117, the portion of the VA Schedule for Rating Disabilities that addresses the hemic and lymphatic systems. Because the rating criteria were changed during the appeal period, the old regulations are applicable both before and after the date of the change in regulations, and the new regulations are applicable only on or after their effective date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Under the version of Diagnostic Code 7716 effective beginning October 29, 2018, aplastic anemia requiring transfusion of platelets or red cells, on average, at least once per 12-month period; or infections recurring, on average, at least once per 12-month period, warrants a 30 percent rating. Anemia requiring transfusion of platelets or red cells, on average, at least once every three months per 12-month period; or infections recurring, on average, at least once every three months per 12-month period; or using continuous therapy with immunosuppressive agent or newer platelet stimulating factors warrants a 60 percent rating. Anemia requiring peripheral blood or bone marrow stem cell transplant; or requiring transfusion of platelets or red cells, on average, at least once every six weeks per 12-month period; or infections recurring, on average, at least once every six weeks per 12-month period, warrants a 100 percent rating. 38 C.F.R. § 4.117, Diagnostic Code 7716. The version of Diagnostic Code 7716 in effect prior to October 29, 2018, included a 10 percent disability rating applicable when the disability required continuous medication for control. Id. Private medical records in August 2014 reflect the provider's opinion that the Veteran had mild, clinically insignificant leukopenia and thrombocytopenia. The Veteran was provided with a VA examination in December 2014. The examiner noted that the Veteran's leukopenia did not require continuous medication or any other treatment for control. The Veteran did not have anemia and any other findings, signs, or symptoms due his service-connected leukopenia. At his hearing, the Veteran testified that he did not require transfusions of platelets or red blood cells and did not receive bone marrow transplants. Ongoing VA medical records do not reflect any symptoms attributed to or treatment for his service-connected leukopenia. These records reflect repeated assessments that the Veteran's aplastic anemia was asymptomatic. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that the Veteran's leukopenia has been symptomatic at any time over the appeals period. The Board places great probative weight on his medical records indicating that his leukopenia was "clinically insignificant." As the evidence does not reflect that the Veteran's leukopenia required continuous medication or transfusion of platelets or red cells and has not caused any infections at any point over the appeals period, a compensable disability rating is not warranted. Based on the foregoing, the evidence of record persuasively weighs against the Veteran's claim for a compensable rating for leukopenia. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 781-82; 38 C.F.R. § 3.102. Increased Rating - Left Shoulder Scar The Veteran's left shoulder surgical scar is rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7805 any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 are to be rated under an appropriate Diagnostic Code. The Veteran testified that he does not have any symptoms associated with his left shoulder scar. He was provided with a VA examination in August 2018. The examiner noted that the Veteran had one linear scar on his left shoulder that measured 7 centimeters long, The Board finds that the evidence of record persuasively weighs against the assignment of a compensable rating for the Veteran's left shoulder surgical scar under Diagnostic Code 7805 as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's left shoulder scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's left shoulder scar is not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that the Veteran's left shoulder scar is manifest by any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a compensable rating for left shoulder scar. As the evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 781-82; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Service Connection - Bilateral Wrist, Bilateral Hip Disabilities, Aplastic Anemia VA medical records reflect that the Veteran was being seen for multi-joint pain by a private rheumatologist, Dr. Merchant, who diagnosed him with osteoarthritis. These records are not part of the claims file and should be obtained on remand. The Veteran has contended that he has a disability that affects his wrists and hips that is the result of exposure to a solvent called "GenSolve 60" that had high concentrations of benzene. The Veteran DD-214's reflect that he was a military occupational specialty (MOS) was as a machine mechanic and a propulsion machinery technician. The Veteran testified before the undersigned that he had been evaluated at a hospital for his arthritis and was told that the arthritis may have been due to aplastic anemia or an autoimmune disorder and that the aplastic anemia could have been due to benzene exposure. No autoimmune disorder appears to have been diagnosed on review of the Veteran's treatment records. The Board finds that these specialties likely included the use of solvents, as the Veteran has contended. As there is evidence of an in-service event, a current disability, and an indication the two may be related, the Veteran should be provided with a VA examination to determine whether his bilateral wrist, bilateral hip, or aplastic anemia is related to service. 38 U.S.C. § 51403A(d); 38 C.F.R. § 3.159(c)(4). Increased Rating - Left Shoulder Disability The Veteran had contended that his service-connected left shoulder disability warrants a higher rating. The most recent examination provided to the Veteran to assess the severity of his left shoulder disability was provided in August 2018. When asked if pain, weakness, fatigability, or incoordination significantly limited the Veteran's left shoulder functional ability after repetitive use over time or during flare-ups, the examiner responded that she was unable to say without resorting to mere speculation. She noted that, as the veteran was not actively experiencing a flare-up at the time of the examination and was not being examined after repetitive movement over time, she was unable to determine if pain, weakness, fatigability, or incoordination could significantly limit functional ability during a flare up or after repetitive use over time. The August 2018 examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements. In addition, the August 2018 examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. As such, on remand, the Veteran should be provided with another VA examination to determine the current nature and severity of his service-connected left shoulder disability. Increased Rating - Persistent Depressive Disorder, Dysthymia; Service Connection - PTSD The Veteran contends that he is entitled to ratings for his persistent depressive disorder and dysthymia higher than 30 percent prior to August 3, 2018, and 50 percent thereafter. At this hearing, the Veteran reported that he was undergoing care at the Greenville VA clinic from a provider with the name Isasuka. Treatment records reflecting psychiatric treatment by a provider with this name are not part of the claims file. On remand, these records should be obtained and added to the record. As these records may reflect a diagnosis of PTSD, the Board must defer a decision on this issue. The most recent examination to determine the severity of his service-connected psychiatric disability was provided in August 2018. The record reflects that the Veteran reported worsening symptoms in a November 2020 VA medical record and testified that his memory had worsened since COVID. As these statements appear to reflect a worsening of his disability since his last examination, the Veteran should be provided with another examination to determine the current severity of the disability. TDIU Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for his psychiatric treatment by a provider named Isasuka. 2. Ask the Veteran to complete a VA Form 21-4142 for his private rheumatologist, Dr. Merchant. Make two requests for the authorized records from this provider, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination for his bilateral wrist, bilateral hip, aplastic anemia disabilities. The examiner must review the claims file. The examiner is asked to determine whether the Veteran has a current bilateral wrist, hip, or aplastic anemia disabilities that is related to service, to include exposure to benzene. The examiner is also asked to provide an opinion as to whether the Veteran's bilateral wrist or hip disabilities were caused or aggravated by his aplastic anemia. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left shoulder disability. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without 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).] 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected psychiatric disorder. 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 service-connected psychiatric disorder alone. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harrigan Smith, Maureen 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.