Citation Nr: 0812092 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-02 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial compensable evaluation for hypertension from September 18, 2003 to November 3, 2005, and 10 percent thereafter. 2. Entitlement to service connection for low back disability, to include as secondary to service-connected bilateral ankle and right knee disabilities. 3. Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The veteran served on active duty from March 1987 to June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, wherein the RO, in pertinent part, denied service connection for low back disability and sinusitis. This appeal also stems from a May 2005 rating action, wherein the RO awarded service connection for hypertension; an initial noncompensable evaluation was assigned, effective September 18, 2003. The veteran timely appealed the aforementioned rating actions to the Board. By a June 2007 rating action, the RO increased the disability rating assigned to the service-connected hypertension from noncompensable to 10 percent; effective November 4, 2005. Since this increase did not constitute a full grant of the benefit sought, the initial rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In view of the foregoing, the initial evaluation claim for service-connected hypertension has been listed as noted on the title page. In January 2008, the veteran testified before the undersigned at a hearing conduced at the Phoenix, Arizona RO (i.e., Travel Board (TB) hearing). A copy of the hearing transcript has been associated with the claims files. The issues of entitlement to service connection for low back disability and sinusitis will be addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT In January 2008, prior to the promulgation of a decision in the appeal of the matter of entitlement to an initial compensable evaluation for service-connected hypertension from September 18, 2003 to November 3, 2005, and 10 percent thereafter, the VA received notification from the appellant that he wished to withdraw his appeal of this issue. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the appellant for the issue of entitlement to an initial compensable evaluation for service-connected hypertension from September 18, 2003 to November 3, 2005, and 10 percent thereafter, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2007). In January 2008, VA received correspondence from the veteran in which he withdrew his appeal for the issue of entitlement to an initial compensable evaluation for service-connected hypertension from September 18, 2003 to November 3, 2005, and 10 percent thereafter. Therefore, as the appellant has withdrawn his appeal of this issue, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with regard to this matter and it must be dismissed. ORDER The appeal for an initial compensable evaluation for hypertension from September 18, 2003 to November 3, 2005, and 10 percent thereafter, is dismissed. REMAND I. Substantive Development A. Low Back Disorder The veteran primarily contends that his current low back disorder is the result of having performed numerous parachute jumps during active military service or, in the alterative, it is secondary to gait alterations caused by his service- connected bilateral ankle and right knee disabilities. (Transcript (T.) at pages (pgs.) 4, 6). Post-service evidence includes a May 2007 VA examination report that noted the veteran's first low back symptoms had their onset in 1995. The examiner diagnosed the veteran with lumbar spin strain and provided the following statement in an addendum: "Current low back condition not related to right and left ankle nor right knee - service medical record's [sic] and separation examination silent for low back and x- ray normal." (See, May 2007 VA spine examination report). The Board finds that the VA examiner's findings and discussion do not provide all of the information necessary to address this claim on appeal. The statements from the VA examiner are unclear, incomplete and without explanation of full rationale. While it appears that the examiner is providing findings that indicate the veteran's low back problem is not related to service, on the bases that no injury or back problem was shown during service, this is not clear. Additionally, the examiner's statements do not even mention whether the veteran's in-service parachute jumps could possibly have contributed to the veteran's current condition. Finally, while the examination stated (without rationale) that the veteran's back problem was "not related" to service-connected ankle and knee problems, the examiner did not specifically indicate whether or not the veteran's low back problem was aggravated by these conditions. A new examination with more thorough discussion of these points is indicated. Prior to any examination, any outstanding records of pertinent medical treatment should be obtained and added to the record. Specifically noted in this regard are records the veteran may have of private treatment for his low back condition. During his hearing, the veteran indicated that he intended to obtain some records from his private doctor and submit them for the record. While no such records have been received thus far, the veteran should be provided another opportunity to do so prior to being scheduled for a new examination. B. Sinusitis The veteran maintains that his current sinusitis had its onset during active service or, in the alterative, that it preexisted service and increased in severity therein. Service medical records reflect that upon enlistment into service, the veteran's sinuses were found to have been "normal" (see, enlistment examination report, dated in March 1986). On a Report of Medical History, also dated in March 1986, the veteran reported that he had had sinusitis. In the notes section of the report, the examining physician reported that the veteran had a prior history of occasional sinusitis. When seen in the acute care clinic in February 1994, the veteran complained of having chronic sinus congestion for the previous year. A diagnosis of "R/O Sinusitis" was entered. A September 1995 report contains an assessment of recurrent sinusitis/allergic (illegible). When seen for an upper respiratory infection in March 1996, the examining physician noted that the veteran had a prior history of sinus problems. An April 2000 separation examination report reflects that the veteran's sinuses were reported as "normal" at discharge. (see, April 2000 service discharge examination report). On Reports of Medical History and Assessment, dated in April 2000, the veteran gave conflicting reports as to his whether or not he had had sinus problems. To this end, while a Report of Medical History shows that the veteran denied having had sinusitis, on his Medical Assessment, he indicated that his allergy and sinus trouble had been ongoing since 1991. (see, Reports of Medical History and Assessment, dated in April 2000). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-2003. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2005). In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). Post-service evidence reflects that the veteran has been diagnosed as having sinusitis. (see, VA examination report, dated in October 2003). By a May 2004 rating action, the RO determined that the veteran's preexisting sinusitis had not been aggravated during military service. While the October 2003 VA examiner diagnosed the veteran as having sinusitis, no medical professional has ever provided an opinion as to whether any current sinusitis had its onset during active military service, or whether it preexisted service and, if so, whether it was aggravated beyond its natural progression therein. Therefore, prior to appellate consideration of the claim for service connection for sinusitis, an additional VA examination is necessary that addresses the above-referenced question. II. Procedural Development The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). Here, review of the claims files reveals that the veteran was never sent proper VCAA notification with regard to claim for service connection for low back disability as secondary to service-connected bilateral ankle and right knee disabilities. To that end, VA's April 2000 letter discussed the concept of direct service connection, but failed to inform the veteran of the type of evidence he is expected to provide and did not ask the appellant to submit any evidence in his possession pertaining to claim for service connection for low back disability as secondary to service-connected bilateral ankle and right knee disability. The above- referenced VCAA does not provide adequate notice. See 38 C.F.R. § 3.159(b)(1) (2007). The veteran must be sent VCAA notification with regard to each issue on appeal. Accordingly, the case is REMANDED for the following action: 1. Send a corrective VCCA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information and evidence needed to establish entitlement to service connection for a low back disorder as secondary to service- connected bilateral ankle and right knee disabilities. 2. With the veteran's assistance, take efforts to obtain copies of any outstanding records of pertinent medical treatment or opinion. Specifically noted in this regard are records or opinions possibly available (and noted by the veteran during his hearing) from private physicians relating to the etiology of the veteran's disorders. 3. Schedule the veteran for VA spine examination (if possible by an examiner other than the one who examined him in May 2007), to determine the nature and likely etiology of any current low back disability. The claims files must made available to the VA examiner prior to the examination. The examiner must indicate that a review of the claims file was conducted. With respect to any currently low back disability found upon examination, the VA examiner should express an opinion as to the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the veteran's low back disability is related to any aspect of the veteran's period of service, including reported parachute jumps? (b) Is it at least as likely as not (50 percent probability or more) that the veteran's low back disability is due to or aggravated by (made permanently worse) by the service-connected bilateral ankle and right knee disabilities. The examiner must provide a rationale for his or her respective opinion. 4. Schedule the veteran for an examination by an appropriate specialist to determine the etiology of any currently diagnosed sinusitis. The claims files must be made available to the examiner for review in connection with the examination. The examiner should respond to the following specific questions and provide a full statement of the basis for the conclusions reached: (a) On the basis of the clinical record, can it be concluded with clear and unmistakable certainty that the veteran's currently diagnosed sinuses preexisted the appellant's entry into active military service?; (b) If sinusitis did clearly preexist service, can it be concluded with clear and unmistakable certainty that the pre- existing sinusitis was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease?; (c) If sinusitis did not clearly preexist service, is it as least as likely as not (50 percent probability or greater) that the veteran's current sinusitis had its onset during active military service, or is related to a service- connected condition (such as rhinitis). In formulating the requested opinion, the VA examiner is requested to comment on a March 1986 Report of Medical History, containing the examining physician's notation of, " Occasional sinusitis," February 1994 and September 1995 reports, reflecting diagnoses of "R/O Sinusitis" and recurrent sinusitis/allergic (illegible), respectively, and an April 2000 discharge examination report, showing that the veteran's sinuses were reported as "normal." The examiner must provide a rationale for his or her respective opinion. 5. The RO should then readjudicate the claims of entitlement to service connection for sinusitis and a low back disability, to include as secondary to service-connected bilateral ankle and right knee disabilities. If any benefit sought on appeal remains denied, the veteran and his representative should be issued an appropriate supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purposes of this remand are to ensure notice is complete, and to assist the veteran with the development of his claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examinations, is both critical and appreciated. The appellant is also advised that failure to report for the scheduled examinations may result in the denial of his claims. 38 C.F.R. § 3.655 (2007). These claims must be afforded expeditious treatment. The law requires that all claims that is remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs