Citation Nr: 1503061 Decision Date: 01/22/15 Archive Date: 01/27/15 DOCKET NO. 12-33 509A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a bilateral knee disability. 4. Entitlement to service connection for a bilateral foot disability also claimed as jungle rot of the feet and legs. 5. Entitlement to service connection for sleep apnea. 6. Entitlement to service connection for cervical spine disorder. 7. Entitlement to service connection for lumbar spine disorder. 8. Entitlement to service connection for hip pain. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1970 to August 1973. The Veteran then joined the Army Reserve sometime in 1976 to June 1997 with a confirmed period of active duty from February 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision of the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2013, the Veteran presented sworn testimony during a video-conference hearing in Montgomery, Alabama, which was presided over by the undersigned Acting Veterans Law Judge. In his Board hearing, the Veteran withdrew his appeals as to the issues of service connection for sleep apnea, a cervical spine disorder, a lumbar spine disorder, and hip pain. A transcript of this hearing has been associated with the Veteran's claims file. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, bilateral knee disability, and a bilateral foot disability also claimed as jungle rot of the feet and legs, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT In September 2013, in a video-conference Board hearing in Montgomery, Alabama, and prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of his appeals for entitlement to service connection for sleep apnea, a cervical spine disorder, lumbar spine disorder, and hip pain were requested. CONCLUSION OF LAW The criteria for withdrawal of the appeals with respect to the issues of entitlement to service connection for sleep apnea, a cervical spine disorder, a lumbar spine disorder, and hip pain by the Veteran (or his authorized representative) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Appeals: Service Connection for Sleep Apnea, Cervical Spine Disorder, Lumbar Spine Disorder, and Hip Pain An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his authorized representative, has withdrawn his appeal for service connection for sleep apnea, cervical spine disorder, lumbar spine disorder, and hip pain; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of service connection for these issues and the appeals as to these issues are therefore dismissed. ORDER The claims for service connection for sleep apnea, a cervical spine disorder, a lumbar spine disorder, and hip pain are dismissed. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeals for entitlement to service connection for bilateral hearing loss, tinnitus, bilateral knee disability, and a bilateral foot disability also claimed as jungle rot of the feet and legs. A review of the record shows that there may be outstanding Service Treatment Records (STRs) and Social Security Administration (SSA) records. The Board has also determine that the examinations for the Veteran's feet and knees were inadequate and that proper notification was not given to the Veteran in regards to the scheduling of his bilateral hearing loss and tinnitus examinations. Outstanding STRs from the Veteran's Reserve Service Regarding the STRs, the Board notes that there are substantial gaps in the Veteran's STRs. Upon review, the Board discerned there are no STRs from the period from October 1991 to June 1997 while the Veteran was in the Army Reserve. As such, the Board reasons it is necessary to contact the appropriate record holder to ensure that all STRs were associated with the Veteran's claims file. Outstanding SSA Records Regarding the SSA records, in a VA examination in July 2010 for PTSD, unrelated to the current claims, the VA examiner reported that the Veteran was "awarded Social Security disability due to physical deficits and psychiatric symptoms during November 2009." The claims file does not contain any evidence from SSA. VA's duty to assist the Veteran particularly applies to relevant evidence known to be in the possession of the Federal Government, such as VA or Social Security records. See 38 C.F.R. § 3.159(c)(2). Therefore, because the records from the SSA may contain pertinent information to all the Veteran's claims, VA is obligated to obtain them. Inadequate VA Examinations: bilateral foot and bilateral knees Regarding the Veteran's claim for service connection for a bilateral foot disability to also claimed as jungle rot of the feet and legs, the VA examiner diagnosed the Veteran with eczema on both his feet. The examiner goes on to provide the opinion that "[d]ocumentation to support a claim of a medical connection between his current eczema on both feet and his active military service was not provided on this visit." As the Court has emphasized, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997). Thus, the Board finds a new VA examination is warranted. The Board also notes that this opinion is also deficient because it does not address the Veteran's contention that he has intermittent difficulty with his feet which he refers to jungle rot. Moreover, while the VA examiner notes in his examination report that the Veteran was treated in January 1973 for fungus on both feet with "burrow soaks," he omits the additional comment on the January 1973 note: "hx: has had for 2 [years] (Vietnam)." Insofar, as the VA examiner comments that there is no other occurrence of treatment for the Veteran's feet, there appears to be ambiguous evidence that the Veteran sought further treatment. This evidence takes the form of a "Humana Hospital - Montgomery" discharge instruction form which include the comment "Warm soak [illegible] area when needed." Regarding the Veteran's claim for service connection for a bilateral knee disability, the VA examiner diagnosed the Veteran with osteoarthritis, both knees. He goes on to provide the opinion that "[h]is service medical records are compatible with patellar tendinitis. Documentation to support a claim that current symptoms in his knees have a medical connection to his active military service was not provided at this visit." Current symptoms in his knee are caused by osteoarthritis which he has developed as a process of more than 35 years of aging." As the Court has emphasized, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997). Moreover, the Board notes that between the Veteran's active duty service and Reserve service he has had approximately 23 years of service. Notification - Bilateral hearing loss and Tinnitus Regarding the Veteran's claim for bilateral hearing loss and tinnitus, there is insufficient evidence to determine that the Veteran was notified of his audiological examination. The only evidence of the scheduling of the examination is VA entry which reports "exam on this request AUDIO - cancelled (failed to report) [...] status of request cancelled by MAS (Cancelled by MAS on 4/16/2009)." Thus, the Board finds that a new examination to address the Veteran's contention of bilateral hearing loss and tinnitus is warranted. The Veteran is reminded that he is expected to attend scheduled examinations or give proper notice in the event of cancellation. VA has a duty to assist the Veteran in obtaining information, and the Veteran has a duty on his part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must aid in the development of his claim by attending the VA examination as requested. Accordingly, the case is REMANDED for the following action: 1. Take the appropriate steps to locate and obtain the Veteran's STRs of his military service in the Army Reserves including Army Reserve service from October 1991 to June 1997. If obtained, those records must be associated with the claims files. If the STRs of the Veteran's military service in the army reserves cannot be obtained, take the appropriate steps to inform the Veteran that the records either no longer exist or that such records cannot be located and further attempts to locate and obtain them would be futile. All attempts to obtain these STRs should be documented. The record reflects that the Veteran served at three different Reserve locations. The first was the 1500 East Banniser Road, Marine Corp Reserve Forces Class III, Kansas City, Missouri, 64131 as listed in his DD-214 upon separation from service in November 1973. The second was the Army Reserve 650th Trans. Co. Wilmington, NC 28401, and the third appears to be the 282d CS CO (WSSYAA), 2775 West Gunter Park Drive, Montgomery Alabama 36109-1013. 2. Obtain the Veteran's SSA records and associate these records with the claims folder. To the extent attempts to obtain records are unsuccessful, the claims folder should contain documentation of the attempts made. The Veteran and his representative should also be informed of any negative results, and should be given an opportunity to obtain the records. 3. Obtain and associate with the claims file all updated VA treatment records. 4. Attempt to verify the Veteran's exact dates of service by contacting the appropriate record holder for the Veteran's former Reserve service. This Reserve included three different locations: first was the 1500 East Banniser Road, Marine Corp Reserve Forces Class III, Kansas City, Missouri, 64131 as listed in his DD-214 upon separation from service in November 1973. The second was the Army Reserve 650th Trans. Co. Wilmington, NC 28401, and the third appears to be the 282d CS CO (WSSYAA), 2775 West Gunter Park Drive, Montgomery Alabama 36109-1013. Request that the record holder provide copies of any and all records in their possession that may provide clarification as to the Veteran's exact dates of service, to include periods of active duty, ACDUTRA, or INACDUTRA. Any response or information, once obtained, should be made a part of the record. If the AOJ is unable to comply with the request, so state for the record and explain why. All negative responses should be properly documented in the record, to include preparing a memorandum of unavailability, and the procedures outlined in 38 C.F.R. § 3.159(e) should be followed 5. Contact the Defense Finance and Accounting Service (DFAS) and request the Veteran's pay/finance records to determine the specific dates of active duty, ACDUTRA, and INACDUTRA. The available service records in the claims file reflect that the Veteran was assigned to 1500 East Banniser Road, Marine Corp Reserve Forces Class III, Kansas City, Missouri, 64131 as listed in his DD-214 upon separation from service in November 1973. The second was the Army Reserve 650th Trans. Co. Wilmington, NC 28401, and the third appears to be the 282d CS CO (WSSYAA), 2775 West Gunter Park Drive, Montgomery Alabama 36109-1013. All verified periods of service and responses received must be documented and associated with the record. 6. Afterwards, the Veteran should be scheduled for appropriate examinations from a different VA examiner to determine whether his contended bilateral hearing loss, tinnitus, bilateral knee disability, and bilateral foot disability, also claimed as jungle rot of the feet and legs, are related to his active service. The claims file must be provided to the examiner(s), the examiner must review the claims file in conjunction with the examination, and the examiner must annotate the examination report as to whether the claims file was reviewed. A complete rationale must be provided for any conclusion reached. The examiner(s) is asked to accomplish the following: (a) Provide an expert opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral knee disability had its onset during active service or are otherwise etiologically related to his active service. (b) Provide an expert opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus and bilateral hearing loss had their onset during active service or are otherwise etiologically related to his active service. (c) Provide an expert opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral foot disability also claimed as jungle rot of the feet and legs had its onset during active service or are otherwise etiologically related to his active service. 7. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 8. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues of entitlement service connection for bilateral hearing loss, tinnitus, bilateral knee disability, and a bilateral foot disability also claimed as jungle rot of the feet and legs. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. The Veteran 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 or by 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 2014). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs