Citation Nr: 18124036
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 15-00 133A
DATE:	August 6, 2018
ORDER
Entitlement to a higher initial rating for generalized anxiety disorder is dismissed.
Entitlement to a compensable rating for left ear hearing loss is dismissed.
Service connection for a neck condition, claimed as cervical injury is denied.
Service connection for peripheral neuropathy right upper extremity is denied.
REMANDED
Entitlement to a rating higher than 10 percent for internal derangement of the right knee is remanded.
Entitlement to a rating higher than 10 percent for right knee strain with Baker’s cyst is remanded.
Entitlement to a compensable rating for right knee scar is remanded.
Entitlement to a rating higher than 10 percent for left knee strain is remanded.
Entitlement to a rating higher than 10 percent for right hip strain is remanded.
FINDINGS OF FACT
1. The Veteran in this case served on active duty from August 1985 to December 1985 and from January 1987 to July 1994.
2.  At his October 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran made an explicit, unambiguous withdrawal of his appeal on the issues of increased ratings for generalized anxiety disorder and left ear hearing loss with full knowledge of the consequences of such withdrawal.
3.  The Veteran’s neck condition did not have onset during service, did not manifest to a compensable degree within the applicable presumptive period, and was not caused by an in-service injury, event, or disease.
4. The Veteran’s peripheral neuropathy right upper extremity is neither proximately due to nor aggravated by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of an appeal by the Veteran on the issue of entitlement to a higher rating for generalized anxiety disorder have been met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018).
2.  The criteria for withdrawal of an appeal by the Veteran on the issue of entitlement to a compensable rating for left ear hearing loss have been met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018).
3.  The criteria for service connection for a neck condition, claimed as cervical injury have not been met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018).
4. The criteria for service connection for peripheral neuropathy right upper extremity have not been met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1985 to December 1985 and from January 1987 to July 1994.
This matter has come before the Board of Veterans’ Appeals (Board) on appeal from August 2012 and November 2013 rating decisions of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in October 2017.  A transcript of the hearing is associated with the claims file.
Withdrawal
1. Entitlement to a higher initial rating for generalized anxiety disorder
2. Entitlement to a compensable rating for left ear hearing loss
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 (2014).  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. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the appellant has withdrawn his appeal on the issues of increased ratings for generalized anxiety disorder and left ear hearing loss.  See October 2017 hearing transcript.  Hence, there remain no allegations of errors of fact or law for appellate consideration about these issues.  Accordingly, the Board does not have jurisdiction to review the appeal and they are dismissed.
Service Connection
3. Service connection for a neck condition, claimed as cervical injury
The Veteran asserts that his current neck condition was caused either by in-service treatment for meningitis or by the weight of the rucksack and firearms she carried constantly in training capacity during service.
As an initial matter, the Board notes that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted.  38 C.F.R. § 3.303 (c); see also 38 C.F.R. § 4.9; Beno v. Principi, 3 Vet. App. 439 (1992).  A May 2016 private treatment record notes that an MRI of the Veteran’s cervical spine shows congenital stenosis.  Service connection is not available for congenital stenosis of the cervical spine.  Nevertheless, additional cervical diagnoses have been provided.  Below, the Board will address whether service connection is available for any other neck condition.
Certain chronic diseases, including arthritis, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause.  38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 
The Board concludes that, while the Veteran has cervical degenerative joint disease (arthritis), which is a chronic disease under 38 C.F.R. § 3.309(a), it did not manifest in service or manifest within a presumptive period, and continuity of symptomatology is not established.  Private treatment records show the Veteran was not diagnosed with cervical arthritis until November 2008, more than a decade after her separation from service and years outside of the applicable presumptive period.
While the Veteran is competent to report having experienced symptoms of neck pain and stiffness consistently since service.  Nevertheless, the Board finds her assertions of continued pain since service to be not credible.  Although in her March 2012 claim and subsequent testimony the Veteran reported ongoing neck pain since service, the medical evidence of record does not reflect this.  She did not report neck symptoms at the time of her May 1994 separation examination.  Similarly, she failed to report any neck symptoms at the time of her June 1999 or July 2004 Reserves examinations and those examiners found no spine abnormalities.  The evidence of record shows that the Veteran’s first documented complaint of neck pain was a November 2008 x-ray, which found mild degenerative disease of the cervical spine and retrolisthesis.  The results of a March 2009 private electrodiagnostic treatment performed in response to the Veteran’s symptoms of left-sided chest pain and stiffness in most joints, including her shoulder and neck, for several months following extensive house painting were normal.  The Veteran did not report a more than decade long history of neck pain and stiffness during the course of treatment for these similar symptoms, which weighs heavily against the credibility of her later assertions made in pursuit of a claim for VA benefits.  As such, the Board does not find credible evidence of ongoing neck symptoms since the Veteran’s separation from service.
Service connection for a neck condition may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s neck condition and an in-service injury, event or disease.  38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
The July 2013 VA examiner opined that the Veteran’s cervical sprain was not at least as likely as not related to an in-service injury, event, or disease, including a lumbar spinal tap performed as treatment for aseptic meningitis in July 1991.  The rationale was that there was no mention of any neck condition during her July 1991 hospitalization or in any other service treatment record and this examiner knew of no scientifically based information that identifies any of the above diagnosed cervical conditions as being caused by a lumbar spinal tap.
While the Veteran believes her neck condition is related to an in-service injury, event, or disease, including either by lumbar puncture or by repeatedly carrying excessive weight on her back, she is not competent to provide a nexus opinion in this case.  This issue is also medically complex, as it requires specialized medical education.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence. 
For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for a neck condition and her appeal must be denied.  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
4. Service connection for peripheral neuropathy right upper extremity
The Veteran testified that her right upper extremity symptoms began following her neck surgery in August 2016.  The evidence of record suggests that it was symptoms including right arm numbness earlier that year that led to the diagnosis of a cervical spine condition which in turn necessitated surgery.
The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by service-connected disability.
The Board concludes that, while the Veteran has a current diagnosis of cervical radiculopathy, the preponderance of the evidence is against finding that this disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability.  38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a).  Notably, as explained above, service connection has not been established for a neck disability, or is service connection warranted for a neck disability.  Therefore, a causal relationship or aggravating relationship between the Veteran’s right upper extremity symptoms and an underlying cervical spine condition is irrelevant to the question of service connection.
Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s peripheral neuropathy of the right upper extremity is related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).  In this case, the Veteran has not suggested any in-service injury, event, or disease to which this disability could be causally linked.
For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for peripheral neuropathy of the right upper extremity and her appeal must be denied.  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REASONS FOR REMAND
1. Entitlement to a rating higher than 10 percent for internal derangement of the right knee is remanded
2. Entitlement to a rating higher than 10 percent for right knee strain with Baker’s cyst is remanded
3. Entitlement to a compensable rating for right knee scar is remanded.
4. Entitlement to a rating higher than 10 percent for left knee strain us remanded
At her October 2017 Board hearing, the Veteran testified that her right knee disability had increased in severity since her last examination in August 2016.  Specifically, she stated that her range of motion had decreased.  Additionally, she testified that her associated scars were painful, which suggests and increase in symptoms over those found during the August 2016 VA scar examination.  As such, new examinations are necessary to determine the current severity of the Veteran’s service connected right knee disabilities.  As a new VA examination of the knees may reveal additional relevant information regarding her left knee disability, the Board will await the results of that examination prior to rendering a decision on that issue.
5. Entitlement to an initial rating higher than 10 percent for right hip strain is remanded
The October 2014 and August 2016 VA examinations are inadequate because they do not comply with 38 C.F.R. § 4.59.  Subsequent to this VA examination, the U.S. Court of Appeals for Veterans Claims, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court’s holding in Correia establishes requirements that must be met prior to finding that a VA examination is adequate, that have not been met in this case.  The examination reports do not meet these requirements.  Since these examination reports do not fully satisfy the requirements of 38 C.F.R. § 4.59, VA must afford the Veteran an adequate examination of her hips.
The matters are REMANDED for the following action:
1. Ensure that the Veteran is scheduled for a VA examination(s) by an appropriately qualified examiner to address the severity of her current bilateral knee disabilities and associated right knee scars.  The claims file must be reviewed by the examiner and the examiner must note whether the claims file was reviewed.  All indicated studies should be conducted and all findings reported in detail.
In order to comply with the Court’s recent precedential decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test the range of motion of the lumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of extension and flexion. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree of flexion and/or extension at which such pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he or she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. 
If the examiner determines the Veteran is not currently suffering from a flare of any conditions, the examiner must also ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding flares by alternative means. The examiner must offer an estimate as to additional functional loss during flares regardless of whether the Veteran is undergoing a flare-up at the time. 
A complete rationale for all opinions expressed is required. If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 
2. Ensure that the Veteran is scheduled for a VA examination by an appropriately qualified examiner to address the severity of her current right hip strain.  The claims file must be reviewed by the examiner and the examiner must note whether the claims file was reviewed.  All indicated studies should be conducted and all findings reported in detail.
In order to comply with the Court’s recent precedential decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test the range of motion of the lumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of extension and flexion. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree of flexion and/or extension at which such pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he or she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. 
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If the examiner determines the Veteran is not currently suffering from a flare of any conditions, the examiner must also ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding flares by alternative means. The examiner must offer an estimate as to additional functional loss during flares regardless of whether the Veteran is undergoing a flare-up at the time. 
A complete rationale for all opinions expressed is required. If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
 
JAMES G. REINHART
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Bridgid D. Houbeck, Counsel 

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