Citation Nr: 1536812 Decision Date: 08/28/15 Archive Date: 09/04/15 DOCKET NO. 12-25 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of a left foot fracture. 2. Entitlement to service connection for bilateral inguinal and femoral hernia. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for pes planus. 5. Entitlement to service connection for right great toe injury. 6. Entitlement to service connection for sleep apnea. 7. Entitlement to service connection for a jaw disability, to include temporomandibular joint disease (TMJ) and/or residuals from extraction of wisdom teeth. 8. Entitlement to service connection for an upper extremity disability to include as due to a bilateral shoulder or cervical neck condition. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to April 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision by the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. Following the issuance of the supplemental statement of the case in April 2013, the Veteran submitted additional evidence in support of his claims and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). The issues of service connection for bilateral inguinal and femoral hernia, service connection for bilateral hearing loss, service connection for pes planus, service connection for right great toe injury, service connection for sleep apnea, service connection for a jaw disability, and service connection for an upper extremity disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT At his hearing on May 15, 2015, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative, with the Veteran's agreement that a withdrawal of the appeal of residuals of a left foot fracture is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran for service connection for residuals of a left foot fracture have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). 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 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran's service representative, with the Veteran's agreement, has withdrawn the issue of service connection for residuals from a left leg fracture and, 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 and it is dismissed. ORDER The appeal of service connection for residuals from a left leg fracture is dismissed REMAND The Board notes that the Veteran, as a lay person, filed his claims as service connection for a bilateral shoulder disability and service connection for TMJ. At his hearing, the Veteran noted that he is experiencing upper extremity symptoms which he has attributed to his shoulders but has been told may have resulted from a cervical spine disability. Similarly, the Veteran has filed a claim for service connection for TMJ but has attributed his symptoms to the extraction of wisdom teeth in service. Multiple medical diagnoses that differ from the claimed condition do not necessarily represent a separate claim, and what constitutes a claim cannot be limited by a lay Veteran's assertion of his condition in his application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Because the evidence indicates that the Veteran may have different conditions or diagnoses for the upper extremities and the jaw, the Board has therefore stated the issues as set forth on the first page of this decision. The Veteran testified that he has recently received relevant treatment for the disabilities on appeal at VAMC. For instance, he testified that he had a recent MRI for his cervical neck, which may relate to his upper extremity disability, and recent surgery for his feet. The file, however, only contains VAMC records from July 2009 to April 2013. The Board has determined that the missing records should be associated with the file. Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Therefore, a complete set of VAMC records from April 2013 to the present should be requested to ensure that the Board has all relevant VAMC records. The update should include reports of all radiological and diagnostic testing such as operation reports, MRI and X-ray reports, and tests such as a sleep study or audiometric testing. The RO denied service connection for sleep apnea because there was no diagnosis of this disability. The Veteran, however, testified that after a private sleep study by the medical group of Doctors Gellia, Lann, and Knowles in 2007 or 2008, he was diagnosed with sleep apnea and has been using a CPAP (continuous positive airway pressure) machine. He also testified that he had a more recent sleep study. Neither study is of record. The Board has determined that the records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). In this regard, the Veteran submitted an opinion letter from a dentist, Dr. Carlee C. Boles, who stated the Veteran had TMJ and now needed an occlusional guard. She based her diagnosis on an examination and panoramic X-rays. Although the RO attempted to obtain Dr. Boles' records, the Veteran never provided the records or authorized VA to obtain them. Under the circumstances, the Board has determined that a second attempt should be made for Dr. Bole's records. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a). If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Veteran is reminded of his obligation to provide the records or authorize VA to obtain them on his behalf. The Veteran also testified that he was evaluated by mental health experts in service because his commanding officer thought the Veteran's fatigue was due to a mental health disability and not some other cause such as sleep apnea. The service treatment records indicate the Veteran was seen by mental health professionals in March 1986. The actual March 1986 treatment notes themselves have not been associated with the file, although there are records of a mental health evaluation in December 1991 but for causes unrelated to sleep difficulties. Therefore, the Veteran should obtain the mental health treatment notes from service and associate them with the file. The RO denied the Veteran's claims for a hernia disability, a shoulder disability, and sleep apnea. For all three claims, the RO concluded there was no current diagnosis of a disability. As noted above, the Veteran has been diagnosed with sleep apnea and TMJ. In addition, the medical evidence establishes that the Veteran has been diagnosed with bilateral inguinal and femoral hernias, which were surgical repaired in March 2011. There has not been a VA examination to determine whether these three diagnoses are related to service. Once the records development is completed, a VA medical examination and accompanying medical opinion is needed to ascertain whether the disabilities are present and to ascertain the etiology. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). In addition, the Veteran was provided VA examinations in June 2009 for hearing loss and November 2012 for the bilateral upper extremity disability. The June 2009 VA examiner determined that the Veteran did not have a hearing loss for VA purposes under 38 C.F.R. § 3.385. In June 2013, however, a private hearing evaluation determined that the Veteran had a hearing loss characterized as moderate. The service treatment records establish the Veteran was routinely exposed to hazardous noise. Therefore, the Veteran should be provided a new VA examination for hearing loss. McLendon, supra. As to the shoulder disability, the November 2012 VA examiner noted one incident of shoulder pain in service in September 1990 attributed as referred pain from gastroenteritis and another incident in June 1988 where the Veteran complained of shoulder and back pain due to direct trauma but the VA examiner concluded the shoulder pain was also referred pain from the back. He also determined that the Veteran did not have a current shoulder disability. He has, however, been diagnosed more recently with bilateral impingement syndrome in the shoulders. Thus, the Veteran does have a current disability which he attributes to service. A new VA examination is warranted. McLendon, supra. In addition, the VA examiner's opinion regarding the June 1988 incident may not be valid based on the current evidence as it raises the question whether the current shoulder disability was caused by direct trauma. Once the records development is completed, a VA medical examination and accompanying medical opinion is needed to ascertain whether any upper extremity disabilities are present and to ascertain the etiology. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Turning to the claim for service connection for TMJ, the Veteran had wisdom teeth extracted in October 1990. He testified that later that day, he passed out, had to be transported to the emergency room, and that the dentist fractured his jaw during the extraction. While the service treatment records do document that the Veteran had to be transported to the Army base hospital due to an episode of syncope, the records do not document any diagnosis or treatment for a fractured jaw. Dr. Boles, as noted above, linked her diagnosis of TMJ to the fractured jaw. Although her report indicated she reviewed the service treatment records, as noted, there is no in-service documentation of a fractured jaw. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board notes the RO attempted to provide the Veteran a VA examination in November 2012 regarding his claim for service connection for a jaw disability but the Veteran did not report for the examination. Normally, when the Veteran fails to report for a VA examination on a claim for service connection, the Board will decide the matter based upon the evidence of record. 38 C.F.R. § 3.655. In this instance, however, the Board finds the evidence of record does not contain sufficient competent medical evidence to decide the claim. Therefore, the Board has determined that under the circumstances, the Veteran will be provided a second opportunity for a VA examination to assist the Board in determining if the wisdom teeth extraction caused TMJ even in the absence of a jaw fracture. Again, the Veteran is reminded it is his duty to report for an examination. 38 U.S.C.A. § 5107(a); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Finally, as to pes planus and a right great toe disability, the Veteran was noted to have pes planus in the entrance examination in July 1984. He was seen for right foot pain in service such as in November 1984 and May 1985. In November 1985, the Veteran underwent bilateral arthroplasty of the 5th toe. In addition, the Veteran testified that he was helping to move a 2 and 1/2 ton engine when it slipped out of the hoist and fell onto his right great toe. At a June 2009 VA examination, the examiner noted pes planus upon entrance but concluded service did not aggravate or cause the pes planus to worsen beyond its natural life progression. He also diagnosed capsulitis of the right great toe but stated that any right great toe disability was not related to service because the service treatment records do not mention any injury to the right great toe. The Veteran has testified that his pes planus disability has significantly worsened and in addition has been diagnosed with additional foot conditions such as hallux valgus and plantar fasciitis. He has been prescribed orthotics and has had additional foot surgeries since the June 2009 VA examination. This evidence suggests the disability has worsened and a new VA examination should determine whether the Veteran's pes planus was inadequate. Concerning the claim for the right great toe, lay evidence concerning the onset of symptoms, if credible, is competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The VA examiner therefore failed to take into account the Veteran's lay evidence of an accident causing injury to the right great toe. The Board thus finds the examination is inadequate and a new VA examination must be provided to the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records for the Veteran dated from April 2013 to the present. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing, and associated with the file. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Ask the appropriate Federal custodian for any records of mental health consultations or treatment of the Veteran in March 1986 while serving in the 546th Maintenance Company in Germany. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Ask the Veteran to submit or authorize VA to obtain the medical records of Dr. Carlee C. Boles for the TMJ disability claim, and Doctors Gellia, Lann, and Knowles as well as any other medical care provider identified by the Veteran as treating him for one of the disabilities under appeal. All efforts to obtain these records must be documented in the file. The RO should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained the claim may be readjudicated. 4. After the record development is completed, provide the Veteran with a VA examination for the claim of service connection for femoral and inguinal hernias. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine whether the Veteran has a hernia disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to service. The examiner is asked to specifically discuss the Veteran's testimony and evidence of the onset of the hernia while trying to lift an engine for track vehicle repair. The examiner is asked to discuss the clinical significance of the treatment by the Veteran in April 1986 when he felt a bulge but no hernia was noted upon examination. The examiner must not rely solely on the absence of hernia in service as the basis for a negative opinion. The question is whether current hernias are related to service A complete rationale for any opinion offered should be provided. 5. After the record development is completed, provide the Veteran with a VA examination for sleep apnea. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine whether the Veteran has a sleep apnea disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to service. The examiner is asked to specifically discuss the Veteran's testimony and evidence of a mental health evaluation in service because of sleep difficulties. The examiner is asked to discuss the clinical significance of the Veteran complaining of fatigue despite adequate rest in July 1985. The examiner is asked to specifically discuss the Veteran's lay testimony and evidence of sleep difficulties including the statements by his ex-wife that she noted difficulties while they were married in service. The examiner must not rely solely on the absence of documented sleep apnea in service as the basis for a negative opinion. The question is whether current sleep apnea is related to service A complete rationale for any opinion offered should be provided. 6. After the record development is completed, provide the Veteran with a VA examination for a jaw disability. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine whether the Veteran has a jaw disability, to specifically include TMJ. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to service. The examiner is asked to specifically determine whether any jaw disability resulted from the extraction of wisdom teeth in October 1990. The examiner is asked to specifically discuss the Veteran's testimony and evidence of TMJ or jaw symptoms in service and after. The examiner is asked to determine if there is any clinical or medical evidence that the Veteran has suffered a fractured jaw in service. The examiner must not rely solely on the absence of a jaw disability in service as the basis for a negative opinion. The question is whether any current jaw disability is related to service A complete rationale for any opinion offered should be provided. 7. After the record development is completed, provide the Veteran with a VA foot examination for the claims of service connection for pes planus and a right great toe disability. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine whether the Veteran has a right great toe disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to service. The examiner is asked to specifically discuss the Veteran's testimony and evidence of an engine falling on his right great toe. The examiner must not rely solely on the absence of a right toe injury in service as the basis for a negative opinion. The question is whether any current right great toe disability is related to service. The examiner is also asked whether the Veteran's pes planus condition, noted upon entrance to service, worsened in service, and, if so, whether it is clear and unmistakable (i.e obvious and manifest) that is was not aggravated by service. In other words, is it clear and unmistakable that any worsening in the Veteran's pes planus condition during service was due to the natural progression of the disability? The examiner is advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. In this instance, aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints. A complete rationale for any opinion offered should be provided. 8. After the record development is completed, provide the Veteran with a VA orthopedic and neurological examination regarding the upper arm extremity. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine whether the Veteran has a bilateral upper extremity disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to service. The examiner is asked to specifically discuss the service treatment evidence of direct trauma to the right shoulder in June 1988. The examiner is asked to discuss the clinical significance of the Veteran's statements regarding an incident where a spinning turret knocked the Veteran off the vehicle causing him to land on and injure his shoulder and another incident where in training for rappelling down a tower, he almost fell but injured his shoulder when he managed to hang on with one hand. The examiner is asked to discuss the clinical significance of the diagnosis of bilateral impingement syndrome and the Veteran's evidence of a diagnosis of a pinched nerve at C 8. The examiner must not rely solely on the absence of an injury or diagnosis of the shoulders and the cervical spine, or the upper extremity in service as the basis for a negative opinion. The question is whether the current bilateral upper extremity disability is related to service. A complete rationale for any opinion offered should be provided. 9. After the record development is completed, provide the Veteran with a VA examination for hearing loss. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine whether the Veteran has a hearing loss disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to service. The examiner is asked to specifically discuss the Veteran's testimony and evidence of noise exposure due to tanks, tank recovery equipment, gunfire, motor pool and aircraft. The examiner must not rely solely on the absence of hearing loss in service as the basis for a negative opinion. The question is whether current hearing loss is related to service. If the examiner determines any current hearing loss is not related to service based upon normal hearing test results in service, the examiner should explain how in-service test results precluded service connection for a hearing loss that had either a sudden onset or gradually progressed over the years. A rationale based solely on the absence of hearing loss during service is insufficient. A complete rationale for any opinion offered should be provided. 10. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655. A copy of the notification letter advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 11. After the development requested is completed, readjudicate the claims for service connection. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs