Citation Nr: 1604771 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 10-32 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for cubital tunnel syndrome of the left elbow. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for a respiratory disorder, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, and to include as due to exposure to chemicals and/or environmental hazards in the Southwest Asia theater of operations. 4. Entitlement to service connection for right testicle hydrocele. 5. Entitlement to service connection for a bilateral knee disorder. 6. Entitlement to service connection for a right heel disorder. 7. Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to May 1986, January 2004 to October 2004, and December 2005 to April 2007. The Veteran also served in the reserves for over 18 years. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. FINDING OF FACT Prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal for the issues of entitlement to service connection for a right testicle hydrocele, bilateral knee disorder, right heel disorder, and posttraumatic stress disorder. CONCLUSION OF LAW The criteria for withdrawal of the appeal for the issues of entitlement to service connection for a right testicle hydrocele, bilateral knee disorder, right heel disorder, and posttraumatic stress disorder have been met. 38 U.S.C.A. § 7105 (West 2014); 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. A substantive appeal may be withdrawn in the record by the Veteran or his authorized representative in writing or at a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In a July 2015 statement, the Veteran's representative withdrew the appeals for the issues of entitlement to service connection a right testicular disorder, a bilateral knee disorder, a right heel disorder, and posttraumatic stress disorder (PTSD). Thus, there remains no allegation of error of fact or law for the Board to address with respect to these issues. Accordingly, the Board does not have jurisdiction to review the appeals as to these issues and dismissal is warranted. ORDER The appeal as to the issue of entitlement to service connection for a right testicle disorder is dismissed. The appeal as to the issue of entitlement to service connection for a bilateral knee disorder is dismissed. The appeal as to the issue of entitlement to service connection for a right heel disorder is dismissed. The appeal as to the issue of entitlement to service connection for PTSD is dismissed. REMAND Left Elbow Disorder At the September 2015 hearing before the Board, the Veteran and his representative asserted that at his May 2015 VA elbow examination, neurological testing was not performed and that he wished to undergo neurological testing to assess the severity of his service-connected left elbow disorder. As the Veteran's claim for an increased rating for his left elbow disorder is neurological in nature, the Board finds a remand is warranted to provide the Veteran with a neurological examination. Right Ear Hearing Loss The Veteran claims he was exposed to acoustic trauma in 1991 while training at the firing range and that he has right ear hearing loss as a result. Service treatment records reflect a February 1991 treatment note wherein the Veteran reported right ear tinnitus and right ear hearing loss. A subsequent audiogram revealed high frequency sensorineural hearing loss in the right ear. The Veteran was serving on reserve duty in 1991, yet his claimed ear injury may have occurred during a period of active duty training or inactive duty training. Although the Veteran's personnel records are associated with the evidence of record, which reflect periods of active duty for training and inactive duty for training, there is no evidence regarding the nature of the Veteran's service in 1991. On remand, the RO must attempt to determine the nature of the Veteran's service and the exact dates the Veteran served on active duty training or inactive duty for training in January and February 1991. The RO must also attempt to ascertain whether the Veteran served in combat during any of his overseas tours. At a January 2008 VA examination, the audiologist found that the Veteran had reports of ringing in his right ear, diagnosed tinnitus, and found that tinnitus was at "least as likely as not" related to the Veteran's active duty service. The audiologist also found that while the Veteran had high frequency sensorineural hearing loss, he did not have a hearing loss disability as defined by VA regulations. See 38 C.F.R. § 3.385 (2015). VA treatment records dated June 2009 indicate the Veteran was given an audiogram that reported mild to severe high frequency sensorineural hearing loss at 3000 to 8000 Hertz, however, the results of this audiogram are not associated with the evidence of record. Further, a July 2009 VA consultation with an ear, nose, and throat doctor indicates the Veteran's asymmetric right ear hearing loss was "likely" due to "his history of brief but intense noise exposure," and that the audiologist needed to rule out retrocochlear pathology. To do so, the doctor recommended magnetic resonance imaging (MRI) of the internal auditory canal with gadolinium contrast; however, no MRI report is associated with the evidence of record. Further, at the Veteran's August 2015 hearing before the Board, he indicated that he has received all his treatment through VA since 2007 or 2008, yet the only VA treatment notes associated with the evidence of record are dated January 2008 through May 2012. Accordingly, on remand the RO must obtain and associate with the electronic claims file all outstanding VA treatment records, to include the results of a June 2009 audiogram and any MRI reports of the Veteran's ear. Respiratory Disorder At his September 2015 hearing before the Board, the Veteran testified that the base he served on in Kuwait was surrounded by sulfur, cement, chlorine, and liquid nitrogen plants. He reported that he and other soldiers were required to evacuate their base three times in a six month period due to plants burning off sulfur. He also reported that two men in his unit experienced sulfur burns in their lungs. The Veteran stated he first began to notice respiratory difficulties and congestion upon arriving in Kuwait and that he and other soldiers were given antibiotics to help them breathe easier and break down congestion. He also indicated that upon arriving in Kuwait, he and others soldiers performed physical training exercises outside, but due to respiratory problems, the military built a "hard sided gymnasium" to work out there as opposed to outdoors. He testified that upon returning from Kuwait in September or October 2004, he and other soldiers requested and were given pulmonary function tests at Fort Eustis in Virginia. He stated that as the lead medical liaison, he had electronic copies of those tests at one point, forwarded those electronic copies to the Naval Expeditionary Logistics Support Group in Williamsburg, Virginia, and then deleted them off his computer due to the fact they contained soldiers' personal identifying information. He also indicated he had a pulmonary function test at the Bethesda Naval Hospital, but never saw the results of that test. Upon returning to California following his active duty service in 2004, the Veteran indicated he began noticing that he was having more difficulty breathing and more congestion. He worked at a hospital at the time and would obtain medication samples from doctors at the hospital, to include Flonase, to relieve his symptoms, but did not receive any formal treatment. Upon returning from Kuwait in 2004, the Veteran stated he used his Tricare insurance for medical care. On remand, those medical records must be obtained. The Veteran has not been afforded a VA Gulf War examination, and therefore, on remand one must be scheduled to determine if any diagnosed respiratory disorder or respiratory symptoms are due to his active duty service, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, and to include as due to exposure to chemicals and/or environmental hazards in the Southwest Asia theater of operations. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the electronic claims file by the RO. Regardless of the Veteran's response, the RO must attempt to obtain and associate with the evidence of record: * All outstanding VA treatment records, to include a June 2009 audiogram and any radiological imaging reports or MRIs pertaining to the Veteran's right ear; * All of the medical records for medical treatment the Veteran received through his Tricare insurance; and * Any pulmonary function tests performed in 2004. In doing so, the RO must specifically request these records from the Naval Expeditionary Logistics Support Group in Williamsburg, Virginia; Fort Eustis in Newport News, Virginia, and the Bethesda Naval Hospital in Bethesda, Maryland, now known as the National Naval Medical Center and Walter Reed National Military Medical Center. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must attempt to obtain information regarding the nature of the Veteran's periods of service in January and February 1991 and must determine whether and when, if at all, he served on active duty, active duty for training, or inactive duty for training during that time period. The RO must also determine whether the Veteran served in combat during his deployments overseas in 2004 and 2006. 3. The Veteran must be afforded a VA neurology examination to determine the current severity of his service-connected cubital tunnel syndrome of the left elbow. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All indicated diagnostic tests and studies must be accomplished, to include electromyography and nerve conduction studies. All pertinent symptomatology and findings should be reported in detail. The examiner must elicit from the Veteran and record in the examination report the occupational and functional impairment the Veteran experiences due to his left elbow disorder. The examiner must also specifically state whether any neurologic manifestations found to be related to the Veteran's service-connected left elbow disorder result in complete or incomplete paralysis of any nerve. The specific nerve(s) involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The Veteran must be afforded a VA Gulf War examination and any other examinations as deemed necessary, to determine whether any respiratory symptoms are related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished, to include pulmonary function tests. The claims file in the form of electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state: * Whether any current or previous respiratory symptoms are attributable to a known diagnosis. The examiner must state upon what specific evidence each determination is based. * If the examiner finds any of the Veteran's symptoms are attributable to a known diagnosis, the examiner must provide an opinion as to whether each diagnosed disability was incurred in, due to, or aggravated by the Veteran's active duty service, to include as due to exposure to chemicals and/or environmental hazards in the Southwest Asia theater of operations. The examiner must state upon what specific evidence each determination is based. * If the examiner finds any of the Veteran's symptoms are not attributable to a known clinical diagnosis, the examiner must provide an opinion as to whether each identified symptom constitutes an undiagnosed illness or medically unexplained chronic multisymptom illness associated with exposure to chemicals and/or environmental hazards in the Southwest Asia theater of operations. The examiner must state upon what specific evidence each determination is based. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. The examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If deficient in any manner, the RO must implement corrective procedures at once. 7. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claim. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. (CONTINUED ON NEXT PAGE) No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs