Citation Nr: 25006291
Decision Date: 05/08/25	Archive Date: 05/08/25

DOCKET NO. 20-29 593
DATE: May 8, 2025

ORDER

Entitlement to an initial increased rating for intervertebral disc syndrome (IVDS) of the cervical spine is dismissed.  

Entitlement to an initial increased rating for IVDS of the thoracolumbar spine is dismissed.  

Entitlement to an initial increased rating for right ankle lateral collateral ligament sprain is dismissed.  

Entitlement to an initial increased rating for right upper extremity radicular pain associated with cervical spine IVDS is dismissed.  

Entitlement to an initial increased rating for right lower extremity radiculopathy (sciatic nerve) is dismissed.  

Entitlement to an earlier effective date for right upper extremity radicular pain associated with cervical spine IVDS is dismissed.  

Entitlement to an earlier effective date for right lower extremity radiculopathy (sciatic nerve) is dismissed.  

Entitlement to service connection for first degree atrioventricular (AV) block is dismissed.  

Entitlement to service connection for right wrist disability is dismissed as moot.

Entitlement to service connection for right knee disability is dismissed as moot.

Entitlement to service connection for left knee disability is dismissed as moot.

Entitlement to service connection for left wrist disability is granted.

Entitlement to service connection for left ankle disability is granted.

Entitlement to service connection for tender and painful left shin scar is granted.

Entitlement to service connection for tender and painful right ankle scar is granted.

REMANDED

 Entitlement to an initial increased rating for left hip iliotibial band syndrome (ITBS) with painful motion, rated noncompensable prior to November 13, 2020, and 10 percent thereafter, is remanded.

Entitlement to an initial compensable rating for left hip ITBS with limitation of extension is remanded.

Entitlement to an initial compensable rating for left hip ITBS with impairment of the thigh is remanded.

Entitlement to an initial increased rating for left foot status post sprain, rated noncompensable prior to November 13, 2020, and 10 percent thereafter, is remanded.

FINDINGS OF FACT

1. At a hearing on June 7, 2024, before the undersigned Veterans Law Judge (VLJ), the Veteran notified the Board of Veterans' Appeals (Board) that he wanted to withdraw the issues of entitlement to an initial increased rating for IVDS of the cervical spine; IVDS of the thoracolumbar spine; right ankle lateral collateral ligament sprain; upper extremity radicular pain associated with cervical spine IVDS; and right lower extremity radiculopathy (sciatic nerve).

2. At the hearing on June 7, 2024, before the undersigned VLJ, the Veteran notified the Board that he wanted to withdraw the issues of entitlement to an earlier effective date for right upper extremity radicular pain associated with cervical spine IVDS and right lower extremity radiculopathy (sciatic nerve).

3. At the hearing on June 7, 2024, before the undersigned VLJ, the Veteran notified the Board that he wanted to withdraw the issue of entitlement to service connection for first degree AV block.

4. An April 2024 rating decision granted entitlement to service connection for right wrist disability.

5. A June 2022 rating decision granted entitlement to service connection for right knee disability and left knee disability.

6. The Veteran's left wrist disability began during active service.

7. The Veteran's left ankle disability began during active service.

8. The Veteran's tender and painful left shin scar is due to an in-service injury.  

9. The Veteran's tender and painful right ankle scar is due to an in-service injury.

CONCLUSIONS OF LAW

1. The criteria to withdraw the issue of entitlement to an initial increased rating for IVDS of the cervical spine have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria to withdraw the issue of entitlement to an initial increased rating for IVDS of the thoracolumbar spine have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

3. The criteria to withdraw the issue of entitlement to an initial increased rating for right ankle lateral collateral ligament sprain have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

4. The criteria to withdraw the issue of entitlement to an initial increased rating for upper extremity radicular pain associated with cervical spine IVDS have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

5. The criteria to withdraw the issue of entitlement to an initial increased rating for right lower extremity radiculopathy (sciatic nerve) have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

6. The criteria to withdraw the issue of entitlement to an earlier effective date for right upper extremity radicular pain associated with cervical spine IVDS have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

7. The criteria to withdraw the issue of entitlement to an earlier effective date for right lower extremity radiculopathy (sciatic nerve) have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

8. The criteria to withdraw the issue of entitlement to service connection for first degree AV block have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

9. The criteria to dismiss the issue of entitlement to service connection for right wrist disability have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.104.

10. The criteria to dismiss the issue of entitlement to service connection for right knee disability have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.104.

11. The criteria to dismiss the issue of entitlement to service connection for left knee disability have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.104.  

12. The criteria for entitlement to service connection for left wrist disability have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

13. The criteria for entitlement to service connection for left ankle disability have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

14. The criteria for entitlement to service connection for tender and painful left shin scar have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

15. The criteria for entitlement to service connection for tender and painful right ankle scar have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from January 2003 to May 2016.  He was also a member of the Reserve with periods of active duty from October 2017 to March 2018 and October 2018 to April 2019.  These matters come before the Board on appeal from October 2016 and August 2017 rating decisions of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ).  

The Veteran testified at a June 2024 virtual Board hearing before the undersigned VLJ.  A transcript of the hearing is associated with the claims file.  With respect to VA's duties to notify and assist, the claims decided herein are full grants.  This renders further analysis of statutory and regulatory compliance unnecessary.

Dismissal

IVDS, Right ankle lateral collateral ligament sprain, left upper extremity radicular pain, right lower extremity radiculopathy (sciatic nerve), right upper extremity radicular pain, AV block

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 an authorized representative.  Id.  

At the June 2024 hearing, the Veteran withdrew eight issues: entitlement to an initial increased rating for IVDS of the cervical spine; entitlement to an initial increased rating for IVDS of the thoracolumbar spine; entitlement to an initial increased rating for right ankle lateral collateral ligament sprain; entitlement to an initial increased rating for upper extremity radicular pain associated with cervical spine IVDS; entitlement to an initial increased rating for right lower extremity radiculopathy (sciatic nerve); entitlement to an earlier effective date for right upper extremity radicular pain associated with cervical spine IVDS; entitlement to an earlier effective date for right lower extremity radiculopathy (sciatic nerve); and entitlement to service connection for first degree AV block.

The Veteran explicitly and unambiguously requested to withdraw these issues at the hearing following clarification of the matters and discussion of the consequences of withdrawal.  Accordingly, there remain no allegations of errors of fact or law for appellate consideration, and the Board does not have authority to review these issues.  These eight issues are dismissed.

Dismissal of the issues of entitlement to service connection for right wrist disability; right knee disability; and left knee disability

The issue of entitlement to service connection for right wrist disability was addressed in a May 2020 statement of the case (SOC) and appealed to the Board in a July 2020 VA Form 9.  The issues of entitlement to service connection for left and right knee disability were addressed in a July 2020 SOC.  Although the Veteran did not file a VA Form 9 appealing the July 2020 SOC's continued denial of service connection, the issues have been treated as if they were part of a timely filed VA Form 9 and were discussed at the June 2024 hearing.  See Percy v. Shinseki, 23 Vet. App. 37 (2009).  Thus, the Board is addressing them in this dismissal.

The Board finds the issues of entitlement to service connection for right wrist disability, right knee disability, and left knee disability are moot.  An issue is moot "if an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party."  Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (internal quotation marks and citation omitted).  Similarly, the Board has the authority to "dismiss any appeal which fails to identify the specific determination with which the claimant disagrees."  38 U.S.C. § 7105(d).

A June 2022 rating decision granted service connection for disabilities of the right and left knee.  An April 2024 rating decision granted service connection for right wrist disability.  These are full grants of the benefits sought, and there is no "controversy" or "issue" currently before the Board because the claims were fully resolved in the Veteran's favor.  See Shoen v. Brown, 6?Vet. App.?456, 457 (1994) (a case or controversy must exist in order to obtain appellate review).  Accordingly, the issues of entitlement to service connection for disabilities of the right wrist, right knee, and left knee are moot and no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). 

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

When a chronic disease is shown in service sufficient "to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date" are service connected, "unless clearly attributable to intercurrent causes."  38 C.F.R. § 3.303(b).  Demonstrating a chronic disease in service requires "manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'Chronic.'  When the disease identity is established . . . , there is no requirement of evidentiary showing of continuity."  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to those listed at 38 C.F.R. § 3.309(a)).

Additionally, if a veteran served 90 days or more of active service during a war period (or after December 31, 1946), certain chronic diseases are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).  

Left Wrist Disability

The Veteran contends that service connection is warranted for a left wrist disability.  The Board concludes that the Veteran has a current disability that began during active service.

In his service treatment records (STRs), the Veteran reported left wrist pain, noting it in a May 2007 flight physical and March 2016 report of medical assessment.  He described in-service pain in multiple statements, such as those in a May 2016 VA examination, October 2017 notice of disagreement (NOD), April 2020 claim, August 2021 private evaluation, April 2022 VA examination, and the June 2024 hearing.

Although an April 2022 VA medical opinion stated that his left wrist condition was not related to service, the August 2021 private evaluation determined that the Veteran's pain "is due to and incurred in active duty."  A September 2024 VA medical opinion indicated that the Veteran had left wrist sprain and degenerative arthritis, then determined that the wrist strain was more likely than not related to service based on his statements and post-service documentation.

After considering this evidence, the Board finds an approximate balance of positive and negative evidence exists regarding whether the Veteran had a chronic wrist condition in service that continued after separation.? The Board accordingly resolves the reasonable doubt in the Veteran's favor, and entitlement to service connection is warranted for left wrist disability.  See 38?U.S.C. §?5107(b); see also Gilbert v. Derwinski, 1?Vet. App.?49, 53-54 (1990).

Left Ankle Disability

The Veteran contends that service connection is warranted for a left ankle disability.  The Board concludes that the Veteran has a current disability that began during active service.

The STRs noted a left foot sprain in July 2006.  He described in-service pain in a May 2016 claim.  At a June 2016 VA examination, he reported that his ankle pain began following a 2013 sprain while rock climbing.  In the October 2017 NOD, he reported that he had experienced left ankle symptoms "for over a decade now."  In an April 2020 claim and April 2022 VA examination, he again reported that the left ankle condition began in 2013.

The August 2021 private evaluation stated that the left ankle condition is secondary to his service-connected right ankle disability and noted that his left ankle symptoms "seem to worsen when he has an exacerbation of his service-connected right ankle."  An April 2022 VA medical opinion acknowledged a June 2016 documentation of left ankle status post sprain but determined that it had been an acute sprain without evidence of ongoing care.

At the June 2024 Board hearing, the Veteran testified that both ankles "have caused pain to me since probably in the neighborhood of 2006, 2007 while on active duty."  He also reported at the hearing that he injured his left ankle while rock climbing: "Like a, a really bad twist that swelled up for, you know, a couple weeks afterward kind of thing," with "pain and problems . . . ever since."

After considering the evidence, the Board finds an approximate balance of positive and negative evidence exists regarding whether the Veteran had a chronic left ankle condition in service that continued after separation.? The Board accordingly resolves the reasonable doubt in the Veteran's favor, and entitlement to service connection is warranted for left ankle disability.  See 38?U.S.C. §?5107(b); see also Gilbert, 1?Vet. App.?at 53-54.

Left Shin Scar

The Veteran asserts that his left shin scar was caused by an in-service injury.  The Board concludes that the Veteran has a current disability related to an in-service injury.

In his May 2017 claim, the Veteran reported "Uncomfortable scars on back, arm, shin, and calf."  He noted that his left shin scar was due to a June 2003 injury in which he "accidentally struck it with an entrenchment tool while digging a fighting position."  He made a similar report in an August 2018 NOD, the April 2020 claim, a January 2022 VA examination, an October 2022 statement, and the June 2024 hearing.  At the hearing, he testified that he did not seek treatment for the injury when it occurred.

January 2022 and July 2024 VA medical opinions indicated that the left shin scar was unrelated to service because there were no service records showing injury or treatment.

A layperson is competent to report events about which he has personal knowledge, including the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The Board assesses not only the competence of evidence but also its credibility to determine what weight to give that evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  When deciding whether lay evidence is satisfactory, the Board may consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

In this case, the Board finds the Veteran's statements regarding a 2003 injury to his left shin are credible.  The Board therefore finds the evidence is at least in equipoise as to whether the Veteran's left shin scar is due to the reported in-service injury.  Thus, after resolving reasonable doubt in his favor, the Board finds that service connection for tender and painful left shin scar is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Right Ankle Scar

The Veteran asserts that his right ankle scar was caused by an in-service injury.  The Board concludes that the Veteran has a current disability related to an in-service injury.

At the outset, the Board notes that the evidence is jumbled regarding the circumstances, placement, and size of the scars on the Veteran's right lower extremity.  He reported a scar on his "right calf was caused by a G-suit zipper in 2007" in the August 2018 NOD.  The January 2022 VA examination listed scars on the right medial shin from being "caught in zipper" in 2008 and the right medial ankle from "running in boots" in 2015; it also indicated that the right ankle scar has "pain and will open up if bumped" and the right shin scar has "pain from time to time."  A July 2024 VA examination listed a right ankle scar and right shin scar that the Veteran stated had "developed . . . while in service." 

In the October 2022 statement, he described a right keratosis (identified by a dermatologist in a June 2012 STR) as well as a right shin scar "due to improperly fitted boots."  At the June 2024 hearing, he testified that the keratosis is on his right calf and did not reference a right ankle scar.

The Board finds this evidence sufficient to show that there are two scars on his lower extremity: one on the ankle and another on the calf or shin.  Each is painful, as documented in the January 2022 VA examination.  Although some details are muddled, the existence of the right ankle scar is not in question.  Thus, a current disability is shown.

As with the left shin scar, the January 2022 and July 2024 VA medical opinions determined that the right ankle scar was not related to service because there were no records showing injury or treatment.  The Board again notes that the Veteran is competent to report in-service injuries, and, resolving reasonable doubt in his favor, the Board finds his reports credible.  This meets the in-service occurrence and nexus elements of service connection.

Therefore, after resolving reasonable doubt in his favor, the Board finds that service connection for tender and painful right ankle scar is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

Left Hip ITBS 

Remand is necessary to obtain an additional VA examination.  A January 2022 VA examination noted that the Veteran takes ibuprofen daily as treatment for his left hip.  The VA examination did not estimate how the medicine impacted the Veteran's disability, however.  Moreover, the Veteran testified at the June 2024 hearing that flare ups occurring two to three times a month limit his ability to lift his leg and make climbing stairs "quite difficulty."  This represents a worsening of his disability, and the VA examination must note (or estimate) his range of motion during these flare ups.

Left Foot Status Post Sprain

Remand is necessary to obtain an additional VA examination.  A January 2022 VA examination noted that the Veteran takes ibuprofen as needed to treat his left foot.  Unfortunately, the VA examination did not estimate how the medicine impacted the Veteran's disability.  Thus, an additional VA examination is needed.  

The matters are REMANDED for the following action:

1. Schedule a VA examination to determine the severity of the Veteran's left hip ITBS.? The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria, exclusive of any beneficial effects due to medications such as ibuprofen.

2. Schedule a VA examination to determine the severity of the Veteran's left foot status post sprain.? The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria, exclusive of any beneficial effects due to medications such as ibuprofen.

3. Then, readjudicate the claim.  If the benefits sought remain denied, issue a supplemental statement of the case and return the matter to the Board, if otherwise in order.

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. Ripplinger, 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.