Case A22008377

MICHELLE P. KATZ · 2022 · Case ID: A22008377

MIXED

Summary

The veteran, who served from January 1990 to January 1996, appeals the denial of service connection for a left hand disability and the denial of reopening claims for bilateral eye, hearing loss, right ankle, left ankle, bilateral foot, and TMJ disorder. The veteran also appeals the denial of readjudication for a skin disorder. The Board dismissed the reopened claims for bilateral eye, hearing loss, right ankle, left ankle, bilateral foot, and TMJ disorder due to withdrawal by the veteran. The Board denied readjudication for the skin disorder, finding no new and relevant evidence was submitted since the March 2016 denial, which concluded the condition existed prior to service and was not aggravated by it. The Board granted service connection for a cervical spine disability, including cervical strain, finding it was secondary to the veteran's service-connected lumbosacral strain, resolving doubt in the veteran's favor. The Board denied service connection for a left hand disability, finding the evidence weighed against a current disability beyond a skin rash, and that the veteran's testimony and examination did not show functional impairment affecting earning capacity. The Board remanded the claims for increased ratings for right and left hip disabilities due to an inadequate VA examination, which failed to comply with Correia requirements for range of motion and pain measurements.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

191125-65189

Full Decision Text

Citation Nr: A22008377
Decision Date: 05/09/22 Archive Date: 05/09/22

DOCKET NO. 191125-65189
DATE: May 9, 2022

ORDER

1. Whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral eye disability has been withdrawn and is dismissed.

2. Whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral hearing loss disability has been withdrawn and is dismissed.

3. Whether new and relevant evidence has been received to reopen the claim for service connection for a right ankle disability has been withdrawn and is dismissed.

4. Whether new and relevant evidence has been received to reopen the claim for service connection for a left ankle disability has been withdrawn and is dismissed.

5. Whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral foot disability has been withdrawn and is dismissed.

6. Whether new and relevant evidence has been received to reopen the claim for service connection for temporomandibular joint (TMJ) disorder has been withdrawn and is dismissed.

7. New and relevant evidence has not been received to reopen the claim for service connection for a skin disorder and the application to readjudicate the claim is denied.

8. Entitlement to service connection for a cervical spine disability, to include a cervical strain, and as secondary to service-connected lumbosacral strain, is granted.

9. Entitlement to service connection for a left hand disability is denied.

REMANDED

10. Entitlement to a disability rating in excess of 10 percent for a right hip disability is remanded.

11. Entitlement to a disability rating in excess of 10 percent for a left hip disability is remanded.

FINDINGS OF FACT

1. At the October 29, 2021, Board hearing, the Board received explicit and unambiguous notification from the Veteran that a withdrawal of the claims of (1) whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral eye disability; (2) whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral hearing loss disability; (3) whether new and relevant evidence has been received to reopen the claim for service connection for a right ankle disability; (4) whether new and relevant evidence has been received to reopen the claim for service connection for a left ankle disability; (5) whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral foot disability; and (6) whether new and relevant evidence has been received to reopen the claim for service connection for temporomandibular joint (TMJ) disorder, were requested.

2. A March 2016 rating decision denied the claim of service connection for a skin disorder based on a finding that the Veteran's disability existed prior to service and was not permanently worsened as a result of service. In the March 2016 notification letter, the Veteran was notified of this decision, which included his appellate rights. He did not appeal the decision or submit new and relevant evidence during the applicable one-year appellate period.

3. Evidence received since the March 2016 rating decision is not new or relevant, as it does not tend to prove or disprove the claim of entitlement to service connection for a skin disorder.

4. Resolving all reasonable doubt in favor of the Veteran, his current cervical spine disability, cervical strain, was caused by his service-connected lumbosacral strain.

5. The evidence persuasively weighs against a finding that the Veteran has a current left hand disability, other than a skin rash, during the appeal period or proximate thereto, to include symptoms that caused functional impairment that affects earning capacity.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for the issue of whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral eye disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for withdrawal of the appeal for the issue of whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for withdrawal of the appeal for the issue of whether new and relevant evidence has been received to reopen the claim for service connection for a right ankle disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

4. The criteria for withdrawal of the appeal for the issue of whether new and relevant evidence has been received to reopen the claim for service connection for a left ankle disability have been met. 38 U
issue of whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

5. The criteria for withdrawal of the appeal for the issue of whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral foot disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

6. The criteria for withdrawal of the appeal for the issue of whether new and relevant evidence has been received to reopen the claim for service connection for TMJ disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

7. The March 2016 rating decision denying service connection for a skin disorder is final. New and relevant evidence has not been received and therefore, readjudication of the service connection claim for a skin disorder is not warranted. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156, 20.1103.

8. The criteria for entitlement to service connection for a cervical spine disability, cervical strain, as secondary to service-connected lumbosacral strain, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

9. The criteria for entitlement to service connection for a left hand disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1990 to January 1996.

The Veteran submitted a claim to reopen the issues on appeal in December 2018. In November 2019, the agency of original jurisdiction (AOJ) issued the rating decisions on appeal, which found that new and relevant evidence had been received for the service connection claims of cervical spine and left hand disabilities, and denied the claims based on the evidence of record at the time of that decision. As the AOJ has already determined that new and relevant evidence has been submitted as to these claims, the Board need not address new and relevant evidence herein. Additionally, the AOJ made favorable findings that are discussed further herein, by which the Board is bound.

In the November 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may consider only the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing and within 90 days following the hearing. 38 C.F.R. § 20.302(a). In October 2021, the Veteran provided testimony in a virtual Board hearing before a Veterans Law Judge (VLJ). Neither the Veteran nor his representative submitted any evidence following the hearing. The requisite 90-day period has expired, and the Board may proceed to adjudicate the claim.

Withdrawal

1. Whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral eye disability; whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral hearing loss disability; whether new and relevant evidence has been received to reopen the claim for service connection for a right ankle disability; whether new and relevant evidence has been received to reopen the claim for service connection for a left ankle disability; whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral foot disability; and whether new and relevant evidence has been received to reopen the claim for service connection for TMJ disorder.

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
has been received to reopen the claim for service connection for a bilateral hearing loss disability; whether new and relevant evidence has been received to reopen the claim for service connection for a right ankle disability; whether new and relevant evidence has been received to reopen the claim for service connection for a left ankle disability; whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral foot disability; and whether new and relevant evidence has been received to reopen the claim for service connection for TMJ disorder.

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. § 20.205. Withdrawal may be made by the appellant or by her authorized representative. Id.

At the October 2021 hearing, the Veteran and his representative stated that the Veteran wished to withdraw the issues of (1) whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral eye disability; (2) whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral hearing loss disability; (3) whether new and relevant evidence has been received to reopen the claim for service connection for a right ankle disability; (4) whether new and relevant evidence has been received to reopen the claim for service connection for a left ankle disability; (5) whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral foot disability; and (6) whether new and relevant evidence has been received to reopen the claim for service connection for TMJ disorder. The undersigned confirmed this during the hearing after the Veteran was sworn in. The Board finds that the Veteran withdrew these issues explicitly, unambiguously, and with a full understanding of the consequences of such action. See Hearing Transcript on page 2.

Accordingly, there remain no allegations of errors of fact or law for appellate consideration in regard to the issues of (1) whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral eye disability; (2) whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral hearing loss disability; (3) whether new and relevant evidence has been received to reopen the claim for service connection for a right ankle disability; (4) whether new and relevant evidence has been received to reopen the claim for service connection for a left ankle disability; (5) whether new and relevant evidence has been received to reopen the claim for service connection for a bilateral foot disability; and (6) whether new and relevant evidence has been received to reopen the claim for service connection for TMJ disorder, and they are dismissed.

New and Relevant Evidence

2. Whether new and relevant evidence has been received to reopen the claim for service connection for a skin disorder.

The Veteran asserts that new and relevant evidence has been submitted which warrants readjudication of the claim for service connection for a skin disorder.

In general, decisions of a VA regional office (RO) that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. However, a finally disallowed claim will be reopened, and the former disposition will be reviewed if new and relevant evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. "New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed." 38 C.F.R. § 3.2501(a)(1).

After a careful review of the evidence of record, the Board finds that new and relevant evidence has not been received and, therefore, readjudication is not required. The reasons follow.

The Veteran's claim for service connection for a skin disorder, claimed as a rash, was previously considered and denied by the RO in a March 2016 rating decision, as the RO concluded that the evidence of record reflected that the skin disorder existed prior to service but did not show that it was permanently worsened as a result of service. At the time of the March 2016 rating decision, the Veteran's claims file contained service treatment records and a March 2016 VA examination report, which showed a clinical finding of left hand eczema and noted that the Veteran reported that he had eczema just before enlistment of the hands and feet, diagnosed as "2 foot 1 hand disease." The Veteran was notified of that decision and of his appellate rights in April 2016. The Veteran did
as a rash, was previously considered and denied by the RO in a March 2016 rating decision, as the RO concluded that the evidence of record reflected that the skin disorder existed prior to service but did not show that it was permanently worsened as a result of service. At the time of the March 2016 rating decision, the Veteran's claims file contained service treatment records and a March 2016 VA examination report, which showed a clinical finding of left hand eczema and noted that the Veteran reported that he had eczema just before enlistment of the hands and feet, diagnosed as "2 foot 1 hand disease." The Veteran was notified of that decision and of his appellate rights in April 2016. The Veteran did not submit new and relevant evidence within one year of the March 2016 decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

Based on the foregoing, for the Board to readjudicate the previously denied claim, the Veteran must provide or identify new evidence that is relevant to his claim.

During the October 2021 Board hearing, the Veteran testified that he had "more eruptions of [rashes]" and "new locations," and explained that prior to service the rash was located on his left hand and left foot, but that it spread from his left foot to his right foot going in to service. The Veteran's testimony regarding his symptoms is not new evidence, as it is redundant of the Veteran's statements during the March 2016 VA examination report, which noted the Veteran's reports that his skin disorder was on both feet and his left hand, noted above. The Veteran also provided testimony about pseudofolliculitis barbae. The Board finds that this testimony is not relevant to the Veteran's current claim of a skin disorder, claimed as a rash [of the left hand and feet], as it is a separate claim and the Veteran is already in receipt of service-connection for pseudofolliculitis barbae and associated facial scarring and painful scarring.

Since the March 2016 rating decision, evidence has been associated with the record including a December 2018 VA examination for skin disease which only addresses pseudofolliculitis barbae and private medical records that reflect November 2016 treatment for abscess and folliculitis. The Board finds this evidence, while new, is not relevant, as it does not address the Veteran's claimed rashes on his left hand and feet nor tend to prove or disprove that such rashes were permanently aggravated by service.

In sum, the Board finds that the evidence received since the March 2016 rating decision is not new or relevant to the claim for service connection for a skin disorder. Therefore, the Board finds that new and relevant evidence has not been received to readjudicate the claim for service connection for a skin disorder and the application to readjudicate the claim is denied.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury.

3. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbosacral strain.

The Veteran asserts that his cervical spine disability is due to his service-connected lumbar spine disability.

In a November 2019 rating decision, the AOJ found that there is evidence of a current disability of a cervical strain confirmed in a
disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury.

3. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbosacral strain.

The Veteran asserts that his cervical spine disability is due to his service-connected lumbar spine disability.

In a November 2019 rating decision, the AOJ found that there is evidence of a current disability of a cervical strain confirmed in a September 2019 VA examination report. The Board is bound by this favorable finding. See 38 C.F.R. § 3.104(c).

The question in this case is whether the Veteran's current cervical spine disability is caused by or otherwise related to an event in service or secondary to a service-connected disability. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a cervical spine disability as secondary to a lumbar spine disability is warranted.

During the October 2021 Board hearing, the Veteran's representative indicated that a private examiner opined that the Veteran's neck disorder is due to his service-connected back disability. The Veteran testified that his cervical spine disability began during service in 1993, developing after his back condition first became problematic, and has become progressively worse.

In an August 2020 opinion, Dr. T. S. stated that the Veteran's current chronic cervical spine disability developed secondarily to his lumbar spine condition. He added that the [lumbar spine] condition first became symptomatic in approximately 1992 while the cervical spine condition first became symptomatic afterwards in approximately 1993.

Dr. T. S. explained that he reviewed the current medical literature regarding cervical spine sprain developing from lumbar spine condition, and that the lumbar spine is well known to negatively affect the cervical spine. He explained that the primary mechanism is that the "spatial interrelationship of thoracolumbar and cervical spine columns" (Jalai 2016) allows for pathological transmission of force along the vertebral columns so that "regional spinal pathologies... can have significant impact beyond the region of the focus." (Jacobs 1990). Dr. T. S. cited to several additional studies/statements in medical literature that support an association between the lumbar spine and cervical spine disabilities.

In November 2019, the Veteran was provided a VA examination for his claimed cervical spine disability. The Veteran reported to the examiner at this time that the cervical spine condition occurred gradually over time with physical training, starting in 1993. In November 2019, the examiner opined that the claimed cervical spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service event, or illness. The examiner explained in her addendum opinion that the complaint of neck pain documented on active duty was more likely an acute event without long term sequela, since there was no sign of continuation of symptomology during and/or after separation from service. However, the examiner did not address or provide an opinion on the relationship between the Veteran's cervical spine disability and his service-connected lumbar spine disability.

Accordingly, taking into consideration the totality of the evidence, including the favorable opinion, the Board finds that resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise as to whether his current cervical spine disability is etiologically related to his service-connected lumbosacral strain. Therefore, the Veteran's service connection claim for a cervical spine disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

4. Entitlement to service connection for a left hand disability.

The Veteran contends that service connection for a left hand disability is warranted because it was aggravated by service.

During the October 2021 Board hearing, the Veteran's representative clarified that the left hand disability claimed is "essentially the skin rash issue." As reopening of the claim for a skin disorder is denied herein, the Board may not address the merits of the claim for a skin disorder, or a rash, of the left hand.

The Board has carefully reviewed the evidence of record and finds that the weight of the evidence is persuasively against a finding that the Veteran has a current left hand disability, other than a skin rash (i.e., musculoskeletal), during the appeal period. Therefore, service connection is not warranted for the claimed disability.

The Veteran was provided a VA examination for his claimed left hand disability in November 2019.
.

The Veteran was provided a VA examination for his claimed left hand disability in November 2019. The examiner found that the Veteran did not have a current diagnosis of a left hand disorder. Specifically, the history was noted as a condition that occurred spontaneously over time in 1990 and the Veteran complained of a rash on the hand and not the joint. The examiner noted that there was no current joint pain of the hand. She stated that, after performing a physical examination and reviewing medical records, there was no current pathology and/or hand condition to render an opinion.

The Board is aware of the holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the U.S. Court of Appeals for the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. The Veteran does not contend that that he has experienced functional impairment affecting his earning capacity related to the left hand, and the evidence of record does not show that the Veteran has had such functional impairment. The November 2019 VA examiner found that there was no functional impact on the Veteran's ability to perform any type of occupational task as a result of a left hand disorder. Upon examination, the Veteran's left hand exhibited all normal range of motion, and no pain was noted. The persuasive weight of the evidence is against a finding of a current musculoskeletal left hand disability, to include symptoms that cause functional impairment of earning capacity.

In the absence of a showing of functional impairment of earning capacity involving the left hand or a current left hand disability, service connection is not warranted. As the evidence persuasively weighs against the claim of service connection for a left hand disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. Lynch v. McDonough, 21 F.4 th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102.

REASONS FOR REMAND

10. Entitlement to a disability rating in excess of 10 percent for a right hip disability is remanded.

11. Entitlement to a disability rating in excess of 10 percent for a left hip disability is remanded.

The Veteran seeks increased disability ratings for his right and left hip disabilities. The Board finds a remand is necessary to correct a pre-decisional duty to assist error.

The Veteran was afforded a VA examination in September 2019 for his service-connected bilateral hip disabilities; however, the Board finds that the examination is inadequate as it did not comply with the requirements in Correia. The examination report indicated that the Veteran experienced pain on non-weight bearing but does not contain range of motion measurements for the Veteran's pain on weight-bearing or non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, during the October 2021 Board hearing, the Veteran's representative stated that only a single set of measurements was noted in the examination report, however, it was indicated that both passive and active range of motion was performed.

Therefore, a pre-decisional duty to assist error has occurred, and a new VA examination should be scheduled for the Veteran's right and left hip disabilities which complies with the requirements of Correia.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left hip disabilities.

All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the right and left hips and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees).

*Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH active and passive motion AND in weight-bearing and non-weight-bearing.

If either the left or right hip(s) cannot be tested on "weight
reia.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left hip disabilities.

*Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH active and passive motion AND in weight-bearing and non-weight-bearing.

If either the left or right hip(s) cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done.

(Continued on the next page)

*In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so.

The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.

MICHELLE P. KATZ

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board D. Cheng, 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.

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