Citation Nr: 0812313 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 07-18 913 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for pain of the left ear. 3. Entitlement to service connection for periodic memory loss and dizziness. 4. Entitlement to service connection for a low back disability, to include as secondary to the service-connected disability of postoperative internal derangement of the left knee. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL The veteran and his friend (L.W.) ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty from May 1980 to June 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Jurisdiction over the veteran's appeal now lies with the RO in North Little Rock, Arkansas. In August 2007, the veteran testified at a personal hearing over which the undersigned Acting Veterans Law Judge presided at the RO. The issue of entitlement to service connection for a back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT On the record at the August 31, 2007, hearing before the undersigned Acting Veterans Law Judge, prior to the promulgation of a decision on appeal, the Board received notification from the veteran requesting withdrawal of the appeal of his claims for entitlement to service connection for tinnitus, for pain of the left ear, and for periodic memory loss and dizziness. CONCLUSION OF LAW The criteria for withdrawal by the appellant of the substantive appeal on the issues of entitlement to service connection for tinnitus, for pain of the left ear, and for periodic memory loss and dizziness, have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. § 7105(d)(5), the Board has the authority to dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See also 38 C.F.R. § 20.202 (the Board may dismiss any appeal which fails to allege specific error of fact or law in the determinations being appealed). A substantive appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a), (b)(3). Such withdrawal may be made by an appellant or by his or her authorized representative and if done on the record at a hearing, it need not be in writing. 38 C.F.R. § 20.204(a). At the August 31, 2007, hearing before the Board, while on the record, the veteran withdrew his appeal of three service connection issues-entitlement to service connection for tinnitus, for pain of the left ear, and for periodic memory loss and dizziness. See Transcript, pp. 2-3 (August 31, 2007). Hence, there remain no allegations of error of fact or law for appellate consideration in the appeal of those three issues. Accordingly, the Board does not have jurisdiction to review the appeal of those issues and the appeal of those three issues is dismissed. ORDER The appeal of entitlement for service connection for tinnitus, for pain of the left ear, and for periodic memory loss and dizziness, is dismissed. REMAND The veteran seeks service connection on alternative theories. First, he asserts that his current low back pain had its onset during service. In the alternative, he asserts that his low back pain is caused by, or aggravated by, his service-connected left knee disability. But while there are several statements by medical professionals about the veteran's low back condition, none are sufficiently clear as to make possible a decision on the issue of service connection. Thus, a medical examination and opinion is necessary. Pursuant to 38 C.F.R. § 3.159(c)(4), VA must provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) establishes that the veteran suffered an event, injury, or disease in service; (2) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. There are two references to low back pain in the veteran's service medical records (SMRs). See SMRs dated November 21, 1983, and November 29, 1983. The claims folder also contains evidence of in-service injuries to the veteran's left knee, for which service connection has been granted for postoperative internal derangement of the left knee. After service, the veteran complained of low back pain in a March 1988 VA report. The March 1988 lumbar spine X-ray report indicates a partial sacralization of S1 showing spina bifida deformity and slight cortical thickening of the posterior aspect of the S1 is noted. The significance of that finding was undetermined from that study. Slight narrowing of the disc at L1-L2 was also seen with very minimal spurring. The veteran is currently being treated for chronic low back pain, especially in the sacro-iliac region. An October 2006 X-ray report indicates the veteran has disc narrowing at L1- L2 and L3-L4. An undated letter to whom it may concern from Dr. Jackie Hill states that displacement of the veteran's pelvis has caused a shift of his lumbo-pelvic region. In an August 2007 treatment record, a VA staff physician stated that persistent antalgic limp will always impact on the status of his back pain. That same physician wrote an August 2007 letter pointing out that the veteran has developed traumatic arthritis of the left knee and degenerative arthritis of the right knee. According to that VA physician, the chronically painful knees caused him to walk with a limp resulting in altered gait mechanics and that as long as he continues to walk with a limp because of chronically painful arthritic knees, he will continue to have back pain. [The veteran has been denied service connection for degenerative arthritis of various joints, including the right knee.] In light of the foregoing, the Board finds that fundamental fairness requires that the veteran be afforded a VA examination to specifically designed to elicit an opinion on etiology, or medical causation, as to the claimed low back pain. Moreover, since the veteran has also asserted a secondary service connection claim, opinions are needed as to whether the service-connected left knee disability caused or aggravated his low back disability. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the veteran's VA treatment records for low back pain, dated since August 2007, from the Central Arkansas Healthcare System. 2. Make arrangements to obtain the veteran's treatment records from any non- VA health care provider(s) that the veteran identifies as having treated him since August 2007 for his low back condition. Associate any evidence obtained with the claims folder. 3. After the above development has been completed, make arrangements for the veteran to have an appropriate examination to determine the etiology of his current low back condition. The claims folder should be made available and reviewed by the examiner. Any indicated studies should be performed. The examination report must provide complete rationale for all opinions. The report should identify all diagnoses with respect to the veteran's low back, and for each diagnosis, address the following matters: (a) Is it at least as likely as not (that is, a 50 percent or greater probability) that the veteran's low back condition had its onset during his active service? (b) Is it at least as likely as not (that is, a 50 percent or greater probability) that the veteran's service-connected left knee disability caused his current back disability? (c) Is it at least as likely as not (that is, a 50 percent or greater probability) that the veteran's left knee disability made his current low back condition worse than it otherwise would have been from the natural progress of the low back condition? (d) To the extent any of the above opinions differ from any other medical opinions on these questions (including the undated letter from Dr. Jackie Hill or the August 2007 letter from the VA staff physician) contained in the claims file, please indicate how and why your opinion is different. 5. Readjudicate the issue on appeal. If the claim remains denied, provide the veteran and his representative with a supplemental statement of the case. Allow an appropriate period for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs