Citation Nr: 1311486	
Decision Date: 04/08/13    Archive Date: 04/19/13

DOCKET NO. 09-33 897	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for tinnitus.

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for residuals of a left knee injury.

4. Entitlement to service connection for residuals of a cervical spine injury.

5. Entitlement to service connection for residuals of a thoracolumbar injury.

6. Entitlement to service connection for residuals of a right middle finger fracture.

7. Entitlement to service connection for residuals of a fractured right heel and foot.

8. Entitlement to service connection for lupus.


REPRESENTATION

Appellant represented by:	Elizabeth Lunn, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The Veteran served on active duty from January 1991 to March 1997.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Winston-Salem, North Carolina RO. The Veteran also appealed the denial of service connection for residuals of a nasal fracture, but since a July 2011 rating decision granted the claim, the matter is not before the Board for consideration. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

In November 2012, the Veteran testified at a video conference hearing before the undersigned; a transcript of this hearing is associated with the claims file. At the hearing, the undersigned agreed to hold the record open for 60 days to allow the Veteran to submit additional evidence in support of his claims. In January 2013, the Veteran's attorney submitted a lay statement and additional pertinent medical evidence on a disk that were printed and added to the claims file; initial consideration by the agency of original jurisdiction (AOJ) was waived.

A review of the Veteran's electronic ("Virtual VA") record does not contain any additional evidence or information pertinent to the current appeal.

The issues of service connection for a right ankle disorder and a right knee disorder have been raised by the record, but have not been adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). They are referred to the AOJ for appropriate action. 

The issues of service connection for a left knee disorder, cervical spine disorder, and thoracolumbar spine disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1. With resolution of reasonable doubt in the Veteran's favor, tinnitus is due to the Veteran's noise exposure during his period of active service.

2. The Veteran is not shown to have bilateral hearing loss that manifested within one year of separation from service, and he does not currently have a bilateral hearing loss disability.

3. The Veteran had a fractured right heel and an injury to the right middle finger during service.

4. The Veteran is not shown to have current disorders involving the right middle finger or the right ankle, heel and foot.

5. In November 2012, prior to the promulgation of a decision on the issue of entitlement to service connection for lupus, the Veteran, through his attorney, withdrew the appeal at the video conference hearing.


CONCLUSIONS OF LAW

1. By extending the benefit of the doubt to the Veteran, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).

2. A bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

3. Residuals of a fractured right middle finger and hand were not incurred in or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 

4. Residuals of a fractured right heel and foot was not incurred in or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

5. The criteria for withdrawal of the Veteran's appealed claim for service connection for lupus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 


DUTIES TO NOTIFY AND ASSIST

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (including as amended effective on May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)).

VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

An August 2007 letter informed the Veteran of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence, and the assistance that VA would provide. He was also given notice of disability ratings and the effective dates of awards.

The Board also finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). 

Some of the Veteran's service treatment records may be unavailable. When, through no fault of the veteran, records under the control of the Government are unavailable, the duty to assist is heightened. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). VA's duty then requires that VA advise the Veteran of his right to support his claim by submitting alternate sources of evidence, including service medical or personnel statements, or lay evidence, such as "buddy" affidavits or statements. Id. 

The Veteran was so notified in July 2008 and at the hearing, and he was notified of alternative forms of evidence, to include personal copies of service treatment records, that could be submitted. VA has obtained all pertinent records that could be obtained and the Veteran was afforded VA audio and spine examinations that are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

While there is no presumption of service connection that arises in such missing records cases, VA is obligated to exercise greater diligence in assisting the Veteran with the development of the evidence in support of his claim. Washington v. Nicholson, 19 Vet. App. 362 (2005); Cromer v. Nicholson, 19 Vet. App. 215 (2005). 

Regarding service connection for residuals of a fractured right middle finger and hand, to date, VA has not conducted medical inquiry. However, no VA examination is necessary to satisfy the duty to assist in this case. Under 38 U.S.C.A. § 5103A (d)(2), VA must obtain a medical examination or opinion when such is necessary to make a decision on a claim. Specifically, a VA examination is required where the record contains competent evidence of a current disability, and indicates that the disability or symptoms may be associated with military service, but does not contain sufficient evidence for the Secretary to make a decision. Id. In this regard, the Board notes that, as discussed below, there is no evidence of a current disability. VA's duty to assist is met.


MERITS OF THE CLAIMS

Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). To establish service connection based on continuity of symptomatology, the claimant must have one of the chronic diseases enumerated at 38 C.F.R. § 3.303(a). Walker v. Shinseki, __ F.3d __ , No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). 

Service connection may 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). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, 21 Vet. App. at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

      (2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau, supra., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Specifically, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr (concerning varicose veins); Jandreau (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012).

After determining the competency and credibility of evidence, the Board must weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza, 7 Vet. App. at 511-512. 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert, supra. The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). 

A. Tinnitus

The Veteran has 6 years of military service and the record shows that his military occupational specialty (MOS) was a Bradley fighting vehicle infantryman. His personnel records also show he was a gunner. See Form DD 214 and service personnel records. He alleges that he was exposed to acoustic trauma in service which led to his claimed disorder. He testified that he reported having ringing in his ears when he had his discharge examination, but the separation examination report is among the records that are not available. 

The Veteran's lay statements as to in-service noise exposure credible in light of his MOS. 38 U.S.C.A. § 1154(a)( In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence). 38 U.S.C.A. § 1154(a). 
 
On his October 2010 VA examination, the Veteran reported that his tinnitus was intermittent and that it started in 1995 or 1996. The examiner commented that the etiology of the Veteran's tinnitus could not be determined on the basis of available information without resorting to speculation.

The Veteran is competent to describe being exposed to loud noise and is competent to describe observable symptoms such as ringing in the ears. A lay person is competent to testify as to observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service). 

The Veteran's separation examination report is not of record, but his testimony and statements are credible and probative with regard to the onset of symptoms. Although the VA examiner indicated that that an opinion could not be offered based on the available record, no indication was given as to what additional information was needed to offer an opinion and it does not appear that the Veteran's statements or noise exposure in service were properly considered as probative evidence. Thus, the rationale for not offering an opinion is inadequate.

There is no doubt that the Board could undertake additional development, but given the nature of the Veteran's service and his statements versus the VA examiner's comments, the Veteran is entitled to the benefit of the doubt. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is established. 

B. Hearing Loss

The Veteran contends that he has bilateral hearing loss due to his military service. His DD Form 214 shows that his military occupational specialty (MOS) was fighting vehicle infantryman and service personnel records also show that he served as a gunner. In November 2012, the Veteran testified that he shot missile launchers - as noted above, the Veteran's account of in-service noise exposure is consistent with his military duties and assignments. 

However, the Veteran is not shown to have hearing loss within the meaning of law and regulation, and the claim will therefore be denied. 

The existence of a current disability is the cornerstone of a claim for service connection. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is now well-settled that in order to be considered for service connection, a claimant must first have a present disability. In Brammer, 3 Vet. App. at 225, the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). 

The threshold for normal hearing is from 0 to 20 decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz , and a higher threshold level indicates some degree of hearing impairment, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing as authority Current Medical Diagnosis and Treatment, 110-11 (Stephen A. Schroeder et al. eds. (1988)). 

Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

On service enlistment examination in December 1990, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
5
0
LEFT
5
5
0
5
30

On May 1991 audiogram, it was noted that the Veteran was routinely exposed to hazardous noise and that he had been issued earplugs. His hearing profile was H1. Pure tone thresholds, in decibels, were as follows:







HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
5
0
LEFT
10
15
20
10
20

On the November 1991 audiogram, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
5
20
LEFT
10
5
5
10
20

On the December 1992 audiogram, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
0
10
LEFT
10
5
5
10
15

The Veteran's service treatment records are not complete and do not include his separation examination report. However, since the claim turns on whether the Veteran has a current hearing loss disability, the outcome is not contingent upon what his hearing thresholds were when he separated from service. Instead, the determinative factor is whether he is shown to have had a hearing loss disability since the receipt of his claim.

No VA records contain evidence of a hearing loss disability. The Veteran's post-service treatment records include an October 2010 VA treatment record that indicates his hearing was intact to the spoken word in a quiet room. That same month he was afforded a VA audiological examination to determine the nature and etiology of the claimed hearing loss. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
10
20
LEFT
5
10
15
20
25

Speech audiometry revealed speech recognition ability of 13 percent in the right ear and of 18 in the left ear. Speech recognition ability was 96 percent in each ear. The diagnosis was clinically normal hearing in the right ear and left ear hearing loss not disabling per 38 C.F.R. § 3.385.

A March 2011 VA treatment record also shows that the Veteran denied having hearing difficulties.

The Board does not discount the Veteran's assertions that he has some difficulty hearing as he is competent to report as his symptoms, including his hearing loss manifestations. Jandreau, supra. However, in this instance, he does not have the requisite medical training or expertise to diagnose his hearing loss as a disability within the regulatory definition of this disorder as noted above. As hearing loss is defined by regulation and requires testing to determine if a hearing loss disability exists, the Veteran is clearly not competent to render a medical diagnosis in this case.

In the absence of any probative evidence of a current disability, service connection cannot be granted for bilateral hearing loss. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer, 3 Vet. App. at 225.

The preponderance of the evidence is against the claim, and service connection for right ear hearing loss is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


C. Residuals of a Fractured Right Heel and Foot

The Veteran contends that he has a current disability as a result of his in-service right heel fractures. The preponderance of the evidence shows that he has no disabling residuals from an in-service incident involving his right foot, and the claim will be denied. 

Service treatment records include a March 1991 X-ray report that shows the Veteran had a right foot stress fracture, posterior calcaneal area. Another record dated that same month indicates the Veteran's heel had been painful for 3 weeks and that the stress fracture was improving.

The Veteran also reported having additional right foot fractures in 1995 while doing exercises in the field. See the January 2009 statement. Not all of the Veteran's service treatment records could be secured and there is no documented record of this later injury. However, in support of his claim, a statement from a fellow serviceman was received in January 2013. He served with the Veteran for approximately 3 years and recalled the Veteran "breaking" his foot in November 1995.

A January 2008 statement and his November 2012 testimony provide the specifics of his in-service right heel and foot injuries and he reported having current right ankle pain. 

VA treatment record notes some complaints of ankle pain, but no ankle or foot diagnosis was offered. See the March 2009 and May 2009 VA medical records. 

On October 2010 VA examination, it was noted that the Veteran reported no longer having problems with his foot or ankle. There were no objective findings on examination and the diagnosis was that his right foot and ankle were normal. 

A VA treatment record noted complaints of right foot pain; however, this was reported as originating in the low back and radiating to the right leg and foot. See the March 2011 VA pain assessment note.

A January 2012 VA podiatry consultation found no abnormality in the right foot. He had no complaints other than painful calluses.

At the November 2012 hearing, the Veteran testified that he recalled telling the VA examiner that he was having a good day with his foot and ankle and that it was not hurting much, but he could recall nothing else from the examination regarding the foot and ankle. 

The record shows that the Veteran had a fractured right heel in service, as this was documented in his service treatment records. Regarding an additional injury to the right heel, the Board finds that the statements of the Veteran and Mr. R. are competent evidence. Jandreau and Barr, supra. However, as noted above, in order for service connection to be granted, there must be a current disability. Boyer and Brammer, supra. 

There is no evidence of a current disability involving the right ankle, heel and foot. As noted, examinations of the foot and ankle on the VA examination and the podiatry consultation revealed no abnormality. Evidence of an in-service right heel injury in service alone is insufficient to establish service connection. A primary element to establish service connection is evidence of a current disability. 

In short, the preponderance of the evidence is against the claim, and service connection for a right heel and foot disorder is denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. 

D. Right Middle Finger and Hand

The Veteran contends that he has a right middle finger disorder that is related to a right middle finger injury that occurred in service. In a statement and in his testimony, the Veteran provided details of a right middle finger and hand injury while in Kuwait. He indicated that his finger and hand were broken. The lay statement from his fellow serviceman shows that he recalled that the Veteran injured his right hand while they were in Kuwait and that the Veteran wore a splint afterwards.

As noted, some of the Veteran's service treatment records are unavailable, which specifically includes his Kuwait service. His testimony and statements are found to be competent and presumed credible with regard to the in-service incident. However, the record lacks evidence of a current right hand and middle finger disorder. Neither the January 2009 statement nor the Veteran's hearing testimony provided any description of current right hand symptoms or problems. Significantly, none of the VA treatment records contain any evidence of a right hand disorder. Moreover, in March 2009, May 2009, June 2009, February 2011, and June 2011, November 2011 VA treatment records show that there was no tenderness found in the joints of the right hand fingers.

On October 2010 VA examination, right hand finger reflexes and motor examinations were normal.

In the absence of any probative evidence of a current disability, service connection cannot be granted for a right middle finger and hand disorder. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Boyer and Brammer, supra.
 
In short, the preponderance of the evidence is against the claim, and service connection for a right middle finger and hand disorder is denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. 

Dismissal

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.A. § 7105 (West 2002). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Withdrawal may be made by the Veteran or by his attorney. 38 C.F.R. § 20.204. 

At his November 2012 video conference hearing before the Board, the Veteran through counsel withdrew his appeal as to entitlement to service connection for lupus. The intention to withdraw the appeal as to this issue, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). 

There remain no allegations of errors of fact or law for appellate consideration as to service connection for lupus. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 


ORDER

Service connection for tinnitus is granted.

Service connection for bilateral hearing loss is denied.

Service connection for residuals of a fractured right middle finger and hand is denied.

Service connection for residuals of a fractured right heel and foot is denied.

The appeal of entitlement to service connection for lupus is dismissed.


REMAND

The Board finds that the issues involving service connection for a left knee disorder, cervical spine disorder, and thoracolumbar disorder require additional development.

As noted previously, not all of the Veteran's service treatment records are available. During the hearing, he testified that after service he was in ROTC at the University of North Carolina in Charlotte from June 1997 to December 1998. Since the Veteran was unsure if his missing records could be located there and since the record does not show any effort was made to search for the records at this location, additional development is needed to obtain them.

Even without the additional records, the Veteran's statements and testimony regarding an undocumented motor vehicle accident in Kuwait is competent evidence to establish the incurrence of an injury. 

In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). 

Regarding the left knee, the Veteran testified to injuring it in service while jumping out of helicopters in Fort Riley while carrying M60 machine guns and other equipment. He recalled going to sick call several times. Although most of the available service treatment records refer to right knee complaints, there are some complaints that do not identify a specific knee. Given the ambiguity of these records, they may refer to the left knee as the right.

The Board also finds that the October 2010 VA examination opinion regarding the Veteran's back is inadequate. The examiner opined that the neck and back problems were less likely caused by the motor vehicle accidents in service but also that the motor vehicle injuries in service aggravated the current back problems. For aggravation of a disorder to be considered there must be evidence of a preexisting disorder. Here, no evidence of a preexisting disorder exists. It is also noteworthy that the Veteran had a post-service low back injury that is pertinent to this case but was not addressed by the examiner.

It is also unclear from the record if the Veteran's left knee complaints are related to lupus or knee pathology. Although joint pain was noted in relation to an evaluation for lupus in June 2011, the Veteran also reported knee popping in April 2009, which was similar to symptoms reported in service. 

In light of the above, the Veteran is entitled to examinations to determine if his current cervical, thoracolumbar, and left knee disorders are related to service.

Accordingly, the case is REMANDED for the following action:

1. Request the Veteran identify all records of VA and non-VA health care providers who have treated him for his cervical spine, thoracolumbar spine, and left knee disorders. 

(a) After obtaining any appropriate authorizations for release of medical information, the RO must obtain records not currently associated with the claims file from each health care provider the Veteran identifies. 

(b) The Veteran must also be advised with respect to private medical evidence that he may alternatively obtain the records on his own and submit them to the RO/AMC. 

(c) Records of a Federal department or agency must be sought until it is reasonably certain that such records do not exist or that further efforts to obtain these records would be futile. 38 U.S.C.A. § 5103A(b)(3).

2. Contact ROTC at the University of North Carolina in Charlotte to determine if any of the Veteran's service treatment records are stored at that location from his time in ROTC from June 1997 to December 1998. All records secured must be associated with the claims file.

3. After all available medical records have been received, arrange for a VA spine examination with an appropriate clinician. The purpose of the examination is to evaluate the etiology of the Veteran's cervical spine and thoracolumbar spine disorders. The following considerations will govern the examination: 

(a) The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand.

(b) The purpose of the examination is to ascertain whether the spine disorders are related to his service to include injuries incurred therein. 

(c) The report must detail the history of the claimed disabilities and all findings must be fully reported. Any necessary tests or studies needed to identify the claimed disabilities must be conducted.

(d) Even if there is an absence of records reflecting treatment in service, the examiner must take into account that the Veteran is competent to report the injuries of his motor vehicle accident in service and the duties associated with his service. 

(e) Based on the examination, the Veteran's assertions, and a review of the claims file, the examiner must opine whether the Veteran's diagnosed thoracolumbar disorder had its clinical onset during service to include whether it is related to the motor vehicle accidents in service or if it is otherwise related to service.

(f) Based on the examination, the Veteran's assertions, and a review of the claims file, the examiner must opine whether the Veteran's diagnosed cervical spine disorder had its clinical onset during service to include whether it is related to the motor vehicle accidents in service or if it is otherwise related to service.

(g) In providing these opinions, the examiner is to provide a complete medical rationale for all opinions, which must include discussions of the medical principles as well as the facts involved. 

(h) Although the examiner is expected to review the claims file in its entirety, his or her attention is directed to the following:

* Service treatment records dated July 1992 that show the Veteran was in a motor vehicle accident and had tenderness in the thoracic spine as well as low back and cervical spine pain. X-rays showed no fracture or degenerative joint disease and the assessment was low back syndrome secondary to motor vehicle accident.

* November 2012 testimony that he injured his back when he was thrown out of a tank.

* An April 2006 private treatment record that shows that the Veteran reported recently hurting his back moving a heavy wooden log and having disabling pain and left lower extremity numbness since then. 

* April 2006 X-rays and an MRI that show mild degenerative joint changes and degenerative disc disease.

* May 2006 private treatment records that indicate the onset of back problems were April 2006.

* May 2006 records that show left sided L4-L5 hemilaminotory for decompression and left sided L5-S1 hemilaminotomy and diskectomy.

* The October 2010 VA examination, which contains a diagnosis of chronic mild cervical neck strain and notes that X-rays of the cervical spine are normal. 

4. Arrange for a VA joints examination with an appropriate clinician. The purpose of the examination is to evaluate the etiology of the Veteran's left knee disorder. The following considerations will govern the examination: 

(a) The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand.

(b) The purpose of the examination is to ascertain whether the left knee disorder is related to his service to include injuries incurred therein. 

(c) The report must detail the history of the claimed disability and all findings must be fully reported. Any necessary tests or studies needed to identify the claimed disabilities must be conducted.

(d) Based on the examination, the Veteran's assertions, and a review of the claims file, the examiner must opine whether the Veteran has a diagnosed left knee disorder that had its clinical onset during service to or if it is otherwise related to service.

(e) In providing this opinion, the examiner is to provide a complete medical rationale for all opinions, which must include discussions of the medical principles as well as the facts involved.

(f) Although the examiner is expected to review the claims file in its entirety, his or her attention is directed to the following:

* Service treatment record dated in April 1991 note complaints of "knee" pain.

* Service treatment record dated in August 1991 notes complaints of a "swollen knee". He reported that his knee popped backwards when he was stretching.

* A March 2009 record notes knee popping.

* A November 2011 record notes knee tenderness.

5. Thereafter, the RO/AMC must consider all of the evidence of record and re-adjudicate the Veteran's remaining claims. If any benefit sought on appeal remains denied, the Veteran and his attorney must be provided a SSOC. The SSOC must contain notice of all relevant actions taken on the above-cited claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 

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).

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. 2012).




______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs