Citation Nr: 1338382 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-15 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for scar, status post laceration, left forearm and scar, status post cubital tunnel release, left forearm. 2. Entitlement to an initial evaluation in excess of 20 percent for cubital tunnel syndrome of the left elbow/hand. 3. Entitlement to an initial compensable evaluation for bilateral hearing loss. 4. Entitlement to service connection for a pulmonary disability, claimed as chronic obstructive pulmonary disease (COPD). 5. Entitlement to service connection for disability of the cervical spine and upper back. 6. Entitlement to service connection for a lumbar spine disability with radiculopathy. 7. Entitlement to service connection for right shoulder disability. 8. Entitlement to service connection for left shoulder disability. 9. Entitlement to service connection for left knee disability. 10. Entitlement to service connection for a left foot disability. 11. Entitlement to service connection for hypertension. 12. Entitlement to service connection for heart disability. REPRESENTATION Appellant represented by: Jan Dils, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse and brother ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to February 1981. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions rendered in January 2009 and January 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran had informal conferences with a Decision Review Officer (DRO) in January 2010 and November 2010. In connection with his appeal the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2013 and accepted such hearing in lieu of an in-person hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims files. The record was held open for 30 days to enable the Veteran to submit additional evidence. Additional evidence was submitted to the Board in March 2013 with a waiver of the Veteran's right to have the evidence initially considered by the RO. The issues of entitlement to service connection for tinnitus and sleep apnea have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to a higher evaluation for scars of the left forearm is dismissed herein and the issue of entitlement to service connection for pulmonary disability is decided herein while the other issues on appeal are addressed in the REMAND that follows the ORDER section of this decision. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. In March 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he desires to withdraw his appeal for entitlement to an initial evaluation in excess of 10 percent for scar, status post laceration, left forearm and scar, status post cubital tunnel release, left forearm. 2. No pulmonary disability present during the period of this claim is etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an initial evaluation in excess of 10 percent for scar, status post laceration, left forearm and scar, status post cubital tunnel release, left forearm have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2013); 38 C.F.R. § 20.204 (2013). 2. A pulmonary disability was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of the Claim for a Higher Initial Rating for Left Forearm Scars 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In an August 2012 rating decision, a DRO awarded an initial 10 percent evaluation for scar, status post laceration, left forearm and scar, status post cubital tunnel release, left forearm effective March 21, 2008. The Veteran's attorney submitted a statement in March 2013 withdrawing the appeal for entitlement to an initial evaluation in excess of 10 percent for scar, status post laceration, left forearm and scar, status post cubital tunnel release, left forearm. As the Veteran has withdrawn his appeal for this matter, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it must be dismissed. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a November 2009 RO letter sent prior to the initial adjudication of the claim in January 2010. The record also reflects that service treatment records, records from the Social Security Administration (SSA), and private and VA treatment records have been obtained. The Veteran and his attorney submitted multiple written statements discussing his contentions and private treatment records. The Veteran also testified at a videoconference hearing before the undersigned in March 2013. A VA examination was provided in December 2010 and an addendum VA medical opinion was obtained in February 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the February 2012 VA medical opinion obtained in this case is adequate. In addition to reviewing the Veteran's pertinent history, the author provided a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his attorney has identified any outstanding evidence that could be obtained to substantiate this claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service, but no compensation will be paid for disability resulting from abuse of alcohol or drugs. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran essentially claims that his claimed pulmonary disorder began during service and that he has experienced a continuity of symptomatology since that time. Service treatment records show that in May 1978 the Veteran was treated for a viral syndrome with complaints of head and chest cold as well as difficulty breathing. The Veteran was also treated for productive cough, cold, and heavy sinus and chest congestion with normal chest X-rays findings in June 1979. Additional June 1979 health records show assessments of early pneumonia as well as upper respiratory infection with acute bronchitis but note that the Veteran was much improved after three days with lungs essentially clear. Chest X-rays were noted to be of poor quality but no infiltrates were seen. The Veteran's lungs and chest were found to be normal on the January 1981 separation examination. Private treatment records included in the documents sent by SSA reveal treatment for bronchitis in 1999 and COPD in 2000. In an August 2001 pulmonary evaluation, M. S., M. D., indicated that the Veteran had a history of asthmatic bronchitis. The Veteran reported occupational risk related to exposure to nerve gas and tear gas as a police officer and trainer, discussing extensive exposure which often led to onset of shortness of breath, cough, and burning eyes. The physician concluded that the Veteran had a complicated pulmonary picture with probable restrictive lung disease that was probably multi-factoral in etiology. It was noted that the physician believed the Veteran had an element of asthmatic bronchitis worsened by allergic sinus disease. He further commented that restrictive changes may additionally be due to the Veteran's body habitus and that he was likely to have an element of CHF and cardiac dysfunction which may lead to his complaints. An August 2001 chest X-ray examination revealed moderate diffuse interstitial disease consistent with history of acute asthmatic bronchitis. VA treatment records dated in April and May 2008 revealed findings of allergies, pulmonary fibrosis, and lung disease of unclear etiology. Findings of COPD were listed in 2009. In a November 2010 statement, the Veteran's private physician, M. S., M. D., indicated that the Veteran had been his patient since August 2001 and was being treated for multiple respiratory difficulties including COPD with pulmonary fibrosis/restrictive lung disease, and obstructive sleep apnea. It was the physician's opinion based on review of the Veteran's military records, his own clinical records, the Veteran's lay statements, and his treatment of the Veteran that it was more likely than not that his service symptoms and his current COPD were related to his military service. The physician indicated his belief that the Veteran's current medical condition was more likely than not related to his respiratory illness that occurred while he was in service that has progressed. In a December 2010 VA examination report, the Veteran reported that he was diagnosed with COPD in 2000 or 2001 and been on medications ever since. He indicated that he was later diagnosed with pulmonary fibrosis. The impression was COPD. Additional VA treatment records dated in 2011 and 2012 show continued findings of severe pulmonary fibrosis. In a February 2012 VA addendum medical opinion, a VA nurse practitioner noted her thorough review of the record and opined that there was no clinical evidence that two respiratory infections that resolved completely in service would cause or be a result of COPD or pulmonary fibrosis. She highlighted that medical treatise evidence showed the exact etiology of pulmonary fibrosis was unknown with many factors including genetic disposition, cigarette exposure, environmental pollutants, and chronic microaspiration. It was noted that the Veteran was treated for two cases of respiratory infections which resolved with antibiotics and no further follow-up needed during service. In-service X-rays were also noted to be clear with no signs of interstitial disease (indicative of pulmonary fibrosis) or hyperinflation (indicative of COPD). Private treatment records dated from 2002 to 2012 from M. S., M. D. were associated with the record in 2013. The records reflect findings of COPD, pulmonary fibrosis, mixed respiratory disorder, asthmatic bronchitis, acute bronchitis, restrictive lung disease, pulmonary nodules, asthma with allergic rhinitis, and interstitial lung disease. The Veteran discussed tobacco use from age 18 to age 42, smoking one pack a day. He did not report other recent occupational exposure. In a March 2012 treatment record, the physician noted that the Veteran had end stage lung disease with severe chronic fibrosis and hypoxic respiratory insufficiency that was likely multifactoral. During his March 2013 hearing, the Veteran asserted that he had difficulty breathing, was treated for bronchitis during service, and had respiratory problems that continued since that time. The Veteran's spouse indicated that he was often sick with bronchitis, colds, and lung infections while on leave and since service. His brother also reported that the Veteran had suffered from breathing problems since service. After a thorough review of the evidence of record, the Board concludes that service connection is not warranted for a pulmonary disability. Evidence of record clearly details that the Veteran was treated for respiratory infections on two occasions during active service. The Veteran also currently has pulmonary disorders, as noted in the post-service medical evidence of record. However, there is no evidence showing that he was found to have a chronic pulmonary disorder in service or until years thereafter. In addition, a nexus between the Veteran's current pulmonary disability and his active service is not shown. The Board is cognizant that the Veteran's VA treating physician, based on review of the Veteran's military records, his own clinical records, the Veteran's lay statements, and his treatment of the Veteran, opined in November 2010 that it was more likely than not that the Veteran's current COPD is related to his military service. However, in an August 2001 pulmonary evaluation of record, that same physician provided a conclusion that the Veteran had a complicated pulmonary picture with probable restrictive lung disease that was probably multi-factoral in etiology without reference to the Veteran's active service. Moreover, the physician did not account for the fact that the service treatment records show that the in-service infections resolved and that the Veteran's lungs were found to be normal on the examination for separation. Therefore, the Board has not found the November 2010 opinion supporting the claim to be persuasive. In contrast, the VA examiner in the February 2012 VA addendum opinion of record specifically concluded that there was no clinical evidence that two respiratory infections that resolved completely in service would cause or result in the Veteran's current pulmonary disorders. The examiner provided a complete rationale for her stated opinions, cited to her detailed review of the claims files, and anchored her conclusions with findings from an applicable medical treatise. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). As such, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether the Veteran's present pulmonary disorder originated in or is otherwise casually related to active service weighs against the claim. The Board acknowledges that the Veteran and his family members are able to observe some of his symptoms, such as difficulty breathing, coughing, or wheezing; however, the Board notes that they do not possess the expertise required to determine whether his present pulmonary disability is causally related to active service. In any event, even assuming that the Veteran and his family member's statements are competent evidence of an etiological relationship between the Veteran's present pulmonary disability and his active service, those lay statements are clearly of less probative value than the medical evidence indicating that his current pulmonary disability is unrelated to his active service. Accordingly, the Board must conclude that service connection is not warranted for a pulmonary disability. In arriving at the decision to deny the claim, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER The appeal for entitlement to an initial evaluation in excess of 10 percent for scar, status post laceration, left forearm and scar, status post cubital tunnel release, left forearm is dismissed. Entitlement to service connection for a pulmonary disability is denied. REMAND The Board's review of the record reveals that further development is warranted. Regarding the matter of entitlement to an initial evaluation in excess of 20 percent for cubital tunnel syndrome of the left elbow/hand, the Board has determined that the reports of the VA examinations in July 2008, December 2010, and April 2012 simply do not provide the necessary information required to properly rate that service-connected disability. Unfortunately, the examination reports do not adequately discuss the neurological symptomatology associated with the Veteran's service-connected cubital tunnel syndrome of the left elbow/hand. Thus, an additional VA peripheral nerves examination is necessary in order to determine the current level of severity of the Veteran's service-connected cubital tunnel syndrome of the left elbow/hand. The Veteran last had a VA examination to evaluate his service-connected bilateral hearing loss in December 2010. Based on the Veteran's assertions of increased bilateral hearing loss during his March 2013 hearing, an additional VA audio examination is necessary in order to determine the current level of severity of the Veteran's service-connected bilateral hearing loss disability. The Board finds the December 2010 VA examination report to be inadequate for adjudicative purposes in regard to the issues of entitlement to service connection for hypertension and supraventricular tachycardia. The examiner simply acknowledged the Veteran's complaints of in-service onset of hypertension and supraventricular tachycardia and then diagnosed various heart disorders. Thus, the originating agency should arrange for the Veteran to be afforded an additional examination with supporting rationale to ascertain the etiology of his claimed hypertension and supraventricular tachycardia. The Board also finds the July 2008, December 2008, December 2010, and February 2012 VA examination reports/medical opinions to be inadequate for adjudicative purposes in regard to the issues of entitlement to service connection for cervical spine, lumbar spine, right shoulder, left shoulder, left knee, and left foot disabilities. Here, the conclusions reached by the VA examiners do not adequately address or provide enough rationale as to whether the Veteran's credibly asserted injuries and trauma during numerous in-service parachute jumps and other duty assignments had a causal role in his subsequent development of the claimed musculoskeletal disorders. Thus, the originating agency should arrange for the Veteran to be afforded additional VA examination(s) with supporting rationale to clarify the etiology of the Veteran's claimed cervical spine, lumbar spine, right shoulder, left shoulder, left knee, and left foot disorders. As the claims files and Virtual VA file only include VA treatment records from the Charleston VA Medical Center (VAMC) dated up to July 2012, the originating agency should obtain and associate with the record all outstanding, pertinent VA records. The Veteran has also asserted that he received treatment for his claimed lumbar spine disorder at Low Country Spine Institute and for his claimed heart disorders from S. L. W., M. D. He further indicated that he was hospitalized for two weeks at a local hospital identified as Mercy or Summit in Arkansas during service after injuring his shoulders, neck, and back in a parachute jump. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include VA treatment records from the Charleston VAMC for the time period from July 2012 to the present. Also of particular interest are the private treatment records from Low Country Spine Institute and S. L. W., M. D. as well as any available inpatient treatment records from a private hospital identified as "Mercy" or "Summit" in Arkansas for the time period from February 1978 to February 1981. 2. Then, the RO should arrange for the Veteran to be examined by an examiner with sufficient expertise to determine the current level of severity of the service-connected cubital tunnel syndrome of the left elbow/hand. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated evaluations, studies, and tests deemed to be necessary must be accomplished. The RO should ensure that the examiner provides all information required for rating purposes, to include identifying all current residuals of the service-connected cubital tunnel syndrome of the left elbow/hand. The examiner should identify all nerves involved and report all associated neurological symptomatology. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. The RO should arrange for the Veteran to be examined by an examiner with sufficient expertise to determine the current level of severity of the service-connected bilateral hearing loss disability. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be made available to and reviewed by the examiner. The RO should ensure that the examiner provides all information required for rating purposes, to include a description of the functional effects of the disability on the Veteran's activities. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. The Veteran also should be afforded a VA examination by a physician with sufficient expertise to determine the etiology of his claimed hypertension and heart disability. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. The examiner should be requested to provide an opinion, consistent with sound medical principles, with respect to the Veteran's hypertension and each heart disorder present during the period of the claim as to whether it is as least as likely as not (50 percent probability or greater) that the disorder originated during service or is otherwise etiologically related to the Veteran's military service, to include documented in-service findings of S-2 closed with Valsalvo on separation. The examiner should acknowledge and discuss the findings in the December 2010 VA examination report as well as the Veteran's lay statements as to continuity of hypertension and tachycardia symptomatology since service. For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. The examiner must also provide the rationale for each opinion expressed. If the examiner is unable to provide any requested opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should explain 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. 5. The Veteran also should be afforded a VA examination by a physician with sufficient expertise to determine the etiology of his claimed cervical spine, lumbar spine, right shoulder, left shoulder, left knee, and left foot disorders. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. The examiner should be requested to provide an opinion, consistent with sound medical principles, with respect to each disorder of the cervical spine/upper back, lumbar spine, right shoulder, left shoulder, left knee and left foot present during the period of the claims as to whether it is as least as likely as not (50 percent probability or greater) that the disorder originated during service or is otherwise etiologically related to the Veteran's military service, to include documented in-service injuries and findings as well as credibly asserted trauma due to numerous parachute jumps and duty assignments. The examiner should acknowledge and discuss the findings in the July 2008, December 2008, December 2010, and February 2012 VA examination reports/medical opinions, and the Veteran's lay statements as to continuity of cervical spine, lumbar spine, right shoulder, left shoulder, left knee, and left foot symptomatology since service. For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. The examiner must also provide the rationale for each opinion expressed. If the examiner is unable to provide any requested opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should explain 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. 6. The Veteran must be given adequate notice of the date and place of any requested examinations. A copy of the notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any scheduled examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655. 7. The RO should also undertake any other development it determines to be warranted. 8. Then, the RO should readjudicate the issues remaining on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs