Citation Nr: 1300806 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-32 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of loss of a digit, left hand. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for shin splints. 5. Entitlement to service connection for a lumbar spine disorder. 6. Entitlement to service connection for diarrhea and stomach pains, to include as the result of an undiagnosed illness. 7. Entitlement to service connection for a high fever, to include as the result of an undiagnosed illness. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from December 1987 to December 1991. These matters come before the Board of Veterans' Appeals (BVA or Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran filed a July 2009 notice of disagreement, and a June 2010 statement of the case was issued which included the issues of a higher rating for tinnitus and entitlement to nonservice-connected pension. However, the Veteran did not file a substantive appeal as to these issues. In fact, he limited his July 2010 substantive appeal to the issues listed on the title page of this decision. As the issues regarding tinnitus and nonservice-connected pension were clearly not appealed, they are not before the Board and will not be addressed further herein. The Veteran was scheduled for a BVA Video Hearing in June 2011, as requested in his July 2010 substantive appeal. The Veteran withdrew his request for a hearing. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). The issues of entitlement to service connection for residuals of loss of a digit, left hand, a right knee disorder, a left knee disorder, shin splints, and a lumbar spine disorder are 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 a statement received by the Board in July 2011, and prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeals for entitlement to service connection for diarrhea and stomach pains, to include as a result of an undiagnosed illness and for a high fever, to include as the result of an undiagnosed illness. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for diarrhea and stomach pains, to include as a result of an undiagnosed illness have been met. 38 U.S.C.A. §§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for a high fever, to include as a result of an undiagnosed illness have been met. 38 U.S.C.A. §§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which 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 (2012). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2012). In June 2009, the RO issued a rating decision that denied entitlement to service connection for diarrhea and stomach pains, to include as a result of an undiagnosed illness and for a high fever, to include as the result of an undiagnosed illness. The Veteran appealed. Thereafter, in a statement received by the BVA in July 2011, the Veteran expressly indicated that he wished to withdraw his appeal regarding these two issues. The Board finds that Veteran has withdrawn his appeal regarding the issues of entitlement to service connection for diarrhea and stomach pains, to include as a result of an undiagnosed illness and for a high fever, to include as the result of an undiagnosed illness, and, hence, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal regarding these issues, and they are dismissed. ORDER The claim for entitlement to service connection for diarrhea and stomach pains, to include as the result of an undiagnosed illness, is dismissed without prejudice. The claim for entitlement to service connection for a high fever, to include as the result of an undiagnosed illness, is dismissed without prejudice. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board finds further development is necessary prior to adjudicating the Veteran's claims for entitlement to service connection for residuals of loss of a digit, left hand, a right knee disorder, a left knee disorder, shin splints, and a lumbar spine disorder. VA Examinations- The Board notes that the Veteran's service treatment records have been determined to be unavailable. In an April 2009 Formal Finding, the RO determined that all efforts to obtain the needed information have been exhausted and further attempts would be futile. Based on these facts, they determined that the Veteran's service treatment records are not available. The Veteran's service entrance examination has been subsequently associated with the claims file. The Veteran has indicated that he has suffered from loss of part of his left middle finger since service when he injured it while loading acetylene tanks. He reported in a statement received in July 2011 that he had lost the tip of his left middle finger when an acetylene tank fell and slammed his finger into the angle iron rack which the tanks were normally secured to. See July 2011 Statement. The Veteran states that it continues to be sensitive and affects his ability to do certain tasks with his left hand. With respect to his right and left knees, the Veteran asserts that in 1989 he was diagnosed with chondromalacia patellae of both knees in service. The Veteran argues that this could have been caused by running up and down ladders. He indicates that he has been on Motrin since service and continues to take it to this day to alleviate the pain. See July 2011 Statement. The Veteran additionally asserts that his shin splints were diagnosed in boot camp and continue to act up on occasion. He reports rubbing them down with a "liniment" and wrapping them with an ace bandage. With respect to his lumbar spine disorder the Veteran asserts that in December 1990, while in Subic Bay, The Philippines, he was loading armor plates onto the flight deck. While transporting the armor plates to another part of the ship, the Veteran slipped and caught himself mid fall. He reported that he felt something snap or shift in his back and he went to sick bay and was told it was a pulled muscle. He reported having injured it again two times post service. See July 2011 Statement. He reports continued pain in his back. Although the Veteran underwent a June 2009 VA examination, etiological opinions regarding his claimed disorders were not obtained. Based on his statements of an in-service loss of a digit, left hand, right knee, left knee, shin splints and lumbar spine issues, and current allegations of continuity of symptomatology, the Board finds that a remand for VA examinations and opinions, of the claims of service connection for residuals of loss of a digit, left hand, a right knee disorder, a left knee disorder, shin splints, and a lumbar spine disorder, are necessary. 38 U.S.C.A. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Outstanding Records- The Veteran stated in his April 2008 claim that he was treated for his hand, knees, and back at the US Naval Hospital in Long Beach, California. The Veteran additionally indicated that he was treated for his bilateral shin splints at boot camp in San Diego, California and for his back in sick bay on the USS Francis Hammond. A search for medical records from the US Naval Hospital in Long Beach, California, boot camp in San Diego, California and sick bay on the USS Francis Hammond should be made. Additionally, because the Veteran's service treatment records have been determined missing, and the case must be remanded for other reasons, the Board notes that an attempt should be made to associate the Veteran's personnel records with his claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain treatment records from the US Naval Hospital in Long Beach, California, boot camp in San Diego, California and sick bay on the USS Francis Hammond and/or other appropriate records depository, between October 1987 and December 1991 associated with the Veteran. Any negative search result should be noted in the record. 2. Request the Veteran's complete personnel file (201 file) from the National Personnel Records Center (NPRC) and other appropriate sources. 3. After the development in Remand paragraphs 1-2 has been completed, schedule the Veteran for an examination to determine the nature and etiology of his residuals of a loss of a digit, left hand. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any residuals of loss of a digit, left hand, had its onset during the Veteran's active service or is otherwise causally related to his service. For purposes of this opinion, the VA examiner is to presume that an acetylene tank fell and slammed the Veteran's finger into an angle iron rack during his period of active service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The examiner is advised that the Veteran is competent to report his symptoms and history; and such reports must be considered in formulating any opinions. The examiner should provide a rationale for rejecting any reports by the Veteran. 4. After the development in Remand paragraphs 1-2 has been completed, schedule the Veteran for an examination to determine the nature and etiology of his right knee disorder, left knee disorder, shin splints, and lumbar spine disorder. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. a) The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any right knee disorder had its onset during the Veteran's active service or is otherwise causally related to his service. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any left knee disorder had its onset during the Veteran's active service or is otherwise causally related to his service. For purposes of the opinions regarding his right and left knees, the VA examiner is to presume that the Veteran ran up and down ladders in service. b) The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any shin splints had their onset during the Veteran's active service or are otherwise causally related to his service. For purposes of this opinion, the VA examiner is to presume that the Veteran reported shin splints in boot camp. c) The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any lumbar spine disorder had its onset during the Veteran's active service or is otherwise causally related to his service. For purposes of this opinion, the VA examiner is to presume that the Veteran slipped in-service while transporting armor plates to another part of the ship. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The examiner is advised that the Veteran is competent to report his symptoms and history; and such reports must be considered in formulating any opinions. The examiner should provide a rationale for rejecting any reports by the Veteran. 5. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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). These claims 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. 2011). ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs